Consolidated results of informal poll constituting preliminary consensus call on Options A-C
Dear all, As noted on the Working Group call yesterday, please find attached the consolidated results of the informal poll that was conducted regarding Working Group member preferences as among Options A, B and C. Individual Working Group members – especially those who provided specific comments as part of their poll response – are invited to add any relevant background and further thoughts to this email. Thanks and cheers Mary
I think the comments within this survey are quite telling. Those who are in favour of option A (and opposing option C) have very strong and fully considered views, which they can explain and support with facts and reasoning. Compare that to those expressing support for C (and opposing A/B). They make statements like: "Fair and balanced" (supporting C) "DOA at Council" (opposing A) bereft of credible reasoning. This demonstrates that it's fear-mongering by the co-chairs and political motivations that led some to switch from Option 1 (now Option A) to Option C (formerly Option 2), rather than anything based on new facts or new analysis. Given this, it explains the refusal by the co-chairs to attach names to those who are supporting Option C -- there's no expectation of privacy here --- everyone must vote publicly when it comes down to a final consensus call, and should have been able to publicly explain why they supported Option C in this preliminary survey. In the book "Principles" by Ray Dalio that I'm reading, he writes about how decisions at Bridgewater go through what's called "believability-weighted decision making", see some discussion of that at: http://www.businessinsider.com/bridgewater-ray-dalio-legacy-2017-9 I think that is a wise approach, whereby votes that are backed by sound logic, facts, experience, and reasoning should be weighted much higher than votes that lack those attributes and which are instead fear-driven and thus are not believable. It's been said that "One man with courage makes a majority." Hopefully it does not have to come to that. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Fri, Nov 17, 2017 at 1:50 PM, Mary Wong <mary.wong@icann.org> wrote:
Dear all,
As noted on the Working Group call yesterday, please find attached the consolidated results of the informal poll that was conducted regarding Working Group member preferences as among Options A, B and C.
Individual Working Group members – especially those who provided specific comments as part of their poll response – are invited to add any relevant background and further thoughts to this email.
Thanks and cheers
Mary
_______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
Dear George, I think you have made it continuously clear that you are in favour of Option A. And, as a WG member, you are of course free to explain why you voted for Option A. However, the fact is that we not just only have a clear majority support for Option C (9 supports and 2 that can live with it), compared to Option A (5 supports and 1 that can live with it), it is also clear that there is a majority against Option A (8 does not support), compared to Option C (3 does not support). This is not just Philip’s and mine arguments, it is the pure fact. I can fully understand that, as in all voting cases, it may sometimes be hard to understand why a majority has other thoughts about a specific topic. And all WG members had (and have) their freedom to further explain and argue their support for a specific solution/option. As you say George, sometimes a support for one specified option needs more detailed explanation, where other options may be more clear, "fair and balanced". As to Option 6: As you may recall, you have made the presentation during our WG meetings, and we (the full WG) have discussed it. As you also may recall, the conclusion within our WG meetings was that not all courts would accept that, independently of what the parties have agreed upon. During last call, we invited you to - during the upcoming week – provide us (the WG) with your suggestion on your proposed specific solution to be added to the current description of the arbitration option for consideration by the WG. I therefore look forward your specific wording / suggestion on that topic. All the best, Petter -- Petter Rindforth, LL M Fenix Legal KB Stureplan 4c, 4tr 114 35 Stockholm Sweden Fax: +46(0)8-4631010 Direct phone: +46(0)702-369360 E-mail: petter.rindforth@fenixlegal.eu www.fenixlegal.eu NOTICE This e-mail message is intended solely for the individual or individuals to whom it is addressed. It may contain confidential attorney-client privileged information and attorney work product. If the reader of this message is not the intended recipient, you are requested not to read, copy or distribute it or any of the information it contains. Please delete it immediately and notify us by return e-mail. Fenix Legal KB, Sweden, www.fenixlegal.eu Thank you 17 november 2017 20:16:33 +01:00, skrev George Kirikos <icann@leap.com>:
I think the comments within this survey are quite telling. Those who are in favour of option A (and opposing option C) have very strong and fully considered views, which they can explain and support with facts and reasoning. Compare that to those expressing support for C (and opposing A/B). They make statements like:
"Fair and balanced" (supporting C) "DOA at Council" (opposing A)
bereft of credible reasoning.
This demonstrates that it's fear-mongering by the co-chairs and political motivations that led some to switch from Option 1 (now Option A) to Option C (formerly Option 2), rather than anything based on new facts or new analysis. Given this, it explains the refusal by the co-chairs to attach names to those who are supporting Option C -- there's no expectation of privacy here --- everyone must vote publicly when it comes down to a final consensus call, and should have been able to publicly explain why they supported Option C in this preliminary survey.
In the book "Principles" by Ray Dalio that I'm reading, he writes about how decisions at Bridgewater go through what's called "believability-weighted decision making", see some discussion of that at:
<http://www.businessinsider.com/bridgewater-ray-dalio-legacy-2017-9>
I think that is a wise approach, whereby votes that are backed by sound logic, facts, experience, and reasoning should be weighted much higher than votes that lack those attributes and which are instead fear-driven and thus are not believable.
It's been said that "One man with courage makes a majority." Hopefully it does not have to come to that.
Sincerely,
George Kirikos 416-588-0269 <http://www.leap.com/>
On Fri, Nov 17, 2017 at 1:50 PM, Mary Wong <<mary.wong@icann.org>> wrote:
Dear all,
As noted on the Working Group call yesterday, please find attached the consolidated results of the informal poll that was conducted regarding Working Group member preferences as among Options A, B and C.
Individual Working Group members – especially those who provided specific comments as part of their poll response – are invited to add any relevant background and further thoughts to this email.
Thanks and cheers
Mary
_______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org <https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp> _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org <https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp>
Hi Petter, On Fri, Nov 17, 2017 at 6:22 PM, Petter Rindforth <petter.rindforth@fenixlegal.eu> wrote:
And all WG members had (and have) their freedom to further explain and argue their support for a specific solution/option. As you say George, sometimes a support for one specified option needs more detailed explanation, where other options may be more clear, "fair and balanced".
Those are not valid arguments, just to say they're "fair and balanced", without explanation (with reference to facts and law). Let me abstract away from domains and ICANN for a moment. Imagine we're tasked to look over software for an airplane, a purely technical/engineering endeavour. In our review, looking at something else entirely, we come across a critical vulnerability that could cause the plane to crash under some rare circumstances. What would we do? Logically, we'd fix the code so that the plane would never crash under that circumstance, period. This is what our job was in this PDP. We were to look at the all the law, facts around IGOs, immunity and the UDRP, and thoroughly research the topic. During that review, we discovered there was a "critical vulnerability" in the UDRP itself. Rather than being an airplane crash, this vulnerability is that some domain name registrants would be denied the ability to have their day in court, to have their case decided on the merits "de novo" (if an IGO successfully asserted an immunity defense after winning a UDRP). That's all it is --- a "software bug" under some scenarios. The designers of the UDRP hadn't ever contemplated that scenario in 1999. Because we did such a thorough job in our research, far better than what happened in 1999, we're in the best position to decide how to fix the "software bug." Option A is a complete technical fix to the "software bug". The domain name registrant can have their day in court. If the IGO wants to press the matter, they have to give up the immunity, importantly, ****just like they would have to do had the current UDRP not created the "bug" in the first place*****. (re-read that part between the asterisks -- that is critical) Or the IGO can use one of the workarounds we identified to completely insulate themselves from the immunity issue/risk (agent, assignee, licensee brings the action, thereby shielding the IGO). The IGO is in the best position to mitigate (if we did the proper Risk Analysis I've called for). The domain owner is in no position to mitigate. So, suppose prior to Option A, the "plane crash" might happen 10 times in the next 100 years. Under Option A, it happens zero times. The problem is solved. The solution perfectly mirrors a world without the UDRP --- both parties are in the exact same legal position as if the UDRP hadn't happened. A level playing field is maintained, and any rights that exist in the real world are fully respected under Option A. No one's rights have been interfered with. Now, those backing Option C say "Well, we'll implement a so-called "fair and balanced" solution that makes the plane crash happen just 5 times in the next 100 years. "Yippee" they say, we've made an improvement! Their frame of reference, their "starting point" isn't "zero crashes" -- their focus was a world *with* the bugs, a world of "10 crashes per 100 years" as the "status quo". Yet, the plane still crashes under Option C, and supposedly we should be willing to "accept that". Under Option C, it is entirely possible for an arbitration panel to rule differently than the courts would have ruled in a dispute. That's undeniable, because they are by definition different. Option C is a poor facsimile of real court. The domain name owner is *entitled* to court access, the real thing. No one has the UDRP or arbitration as an "entitlement" -- it's a bonus that is entirely supposed to be negated if one goes to court. Going to court is supposed to "reset things" and have a level playing field where everything is supposed to be decided under real laws. Option B, to continue the story, says "We'll fix the code completely for existing planes. New planes can get the "fair and balanced solution" pushed by Option C's partial fix. So, perhaps now, planes would crash only 2 times in the next 100 years (0 crashes for old planes, though, and all the crashes on the new planes). Those who fly on new planes have that choice, if they want to take the risk, they go into it with eyes wide open. Option #6 would have been similar in nature, in that it tries to reduce the number of plane crashes (by making it harder to get to the "crash scenario" computer code, kind of filtering the scenarios somewhat). So, instead of crashing 5 times per 100 years under existing Option C, it'd be a lower number if Option #6 was integrated into a new Option C, maybe 3 times per 100 years. I hope that helps folks look at things in a different way. Folks like myself who are convinced Option A is the correct solution cannot understand why those backing Option C are willing to accept those "plane crashes" at all! We're not here to play politics and say "well, we made an improvement, we did the best we could". We're supposed to be here to analyze all the facts, knowledge, law, and analysis to get to the correct decision (Option A). I leave Option C backers with this question --- do you acknowledge that under Option C, arbitration panels might make different rulings than a court would??? Yes or no. If the answer is "Yes", explain to us why that should be acceptable to domain name registrants? A domain name registrant, who is entitled to the protection of their national courts, should not lose the right to that court access, simply because the UDRP was not coded properly in 1999 and contains software bugs. It should be our duty to fix the problem, eliminate the software bugs, rather than knowingly keeping a smaller or different bug still lurking in that code (a bug that might have further unintended consequences down the road that we haven't contemplated yet that others might exploit). Notice, I'm asking very simple questions here that cut to the heart of the issues, yet instead of any answers, some are playing political games, saying "well, we made a potential small improvement, you should be happy, that's all you're going to get". Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ P.S. This "immunity" issue isn't the only "software bug" in the UDRP. As some of you know from our RPM call on Wednesday, I talked about the other "bug" whereby some courts (e.g. in the UK) are refusing to hear de novo reviews/appeals of UDRP decisions at all, e.g. see the Yoyo.email case: http://www.bailii.org/ew/cases/EWHC/Ch/2015/3509.html "My conclusions on the application to strike out the Claim are: 1) adopting the reasoning of Ms Proudman in Patel drives me to hold that on a proper construction of the UDRP clause 4k does not give rise to a separate cause of action in favour of the claimant; 2) nor does it afford any jurisdiction to this Court to act as an appeal or review body from the Decision;" This is clearly something the UDRP drafters in 1999 never contemplated, and is a software bug we'll have to deal with in the RPM PDP, as it strikes at the very bargain that was made when the UDRP was adopted, namely that it wouldn't interfere with legal rights on access to the real courts for a decision on the merits. For it to happen in some jurisdictions wasn't known by those drafting the UDRP. (also applies equally to URS) I'll be writing more about that "software bug" in the RPM PDP's mailing list probably next week.
Peter, I do wish to point out that the UDRP was not intended to create rights that did not exist prior to the UDRP. This is in the founding WIPO report that was adopted by ICANN with a great deal of grandeur. The 1999 Report also stated as a foundational position that respondents were to retain their day in court. NGOs existed prior to the UDRP. Prior to the UDRP the only means by which they could enforce rights as against a domain name registrant was to commence litigation (either directly or indirectly via a stalking horse/assignee, etc). Pre-UDRP there was no basis for forcing the respondent into any form of arbitration. The UDRP was thoughtfully created to grant the right to litigate de novo. The Policy references such litigation in several places and the consent to Mutual Jurisdiction is expressly limited to the dispute concerning the domain name. From this several sound legal principles have arisen. 1. Policy 4(k) does not itself create an independent right of action. A losing respondent must still find a statutory basis upon which to rest its claim. This has been recognized in virtually all post-UDRP cases including those in the UK (note the Yoyo decision among others). 2. The Mutual Jurisdiction certification does not extend beyond the reversal of the UDRP decision. The certification does not itself grant personal jurisdiction over the Complainant (now defendant) for any other form of claim. This precludes the awarding of monetary damages other than costs unless there is an independent claim to base it upon or the court has personal jurisdiction over the Complainant/defendant independently of the MJ certification. By creating an independent arbitration process for NGOs you are (a) contradicting not one but at least two of founding principles of the UDRP. With all respect, I have yet to see any argument in favor of the positions currently being promoted by the Chairs other than (a) the Board/GAC/IGOs want it that way. And, now that George has surfaced an actual study comparing tech costs of arbitration to traditional litigation, there seems absolutely no credible reason to continue to support the private arbitration suggestions. I invite ANYONE to provide evidence to the contrary. And by evidence I mean that not assumptions or beliefs but facts. Thank you, Sincerely, Paul Raynor Keating, Esq. Law.es <http://law.es/> Tel. +34 93 368 0247 (Spain) Tel. +44.7531.400.177 (UK) Tel. +1.415.937.0846 (US) Fax. (Europe) +34 93 396 0810 Fax. (US)(415) 358.4450 Skype: Prk-Spain email: Paul@law.es THE INFORMATION CONTAINED IN THIS E-MAIL IS CONFIDENTIAL AND MAY CONTAIN INFORMATION SUBJECT TO THE ATTORNEY/CLIENT OR WORK-PRODUCT PRIVILEGE. THE INFORMATION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED. IF YOU ARE NOT THE INTENDED RECIPIENT, NO WAIVER OF PRIVILEGE IS MADE OR INTENDED AND YOU ARE REQUESTED TO PLEASE DELETE THE EMAIL AND ANY ATTACHMENTS. Circular 230 Disclosure: To assure compliance with Treasury Department rules governing tax practice, we hereby inform you that any advice contained herein (including in any attachment) (1) was not written or intended to be used, and cannot be used, by you or any taxpayer for the purpose of avoiding any penalties that may be imposed on you or any taxpayer and (2) may not be used or referred to by you or any other person in connection with promoting, marketing or recommending to another person any transaction or matter addressed herein. NOTHING CONTAINED IN THIS EMAIL SHALL CONSTITUTE THE FORMATION OF AN ATTORNEY/CLIENT RELATIONSHIP; SUCH A RELATIONSHIP MAY BE FORMED WITH THIS FIRM AND ATTORNEY ONLY BY SEPARATE FORMAL WRITTEN ENGAGEMENT AGREEMENT, WHICH THIS IS NOT. IN THE ABSENCE OF SUCH AN AGREEMENT, NOTHING CONTAINED HEREIN SHALL CONSTITUTE LEGAL ADVICE From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org> on behalf of Petter Rindforth <petter.rindforth@fenixlegal.eu> Reply-To: <petter.rindforth@fenixlegal.eu> Date: Saturday, November 18, 2017 at 12:22 AM To: George Kirikos <icann@leap.com> Cc: "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C
Dear George,
I think you have made it continuously clear that you are in favour of Option A. And, as a WG member, you are of course free to explain why you voted for Option A.
However, the fact is that we not just only have a clear majority support for Option C (9 supports and 2 that can live with it), compared to Option A (5 supports and 1 that can live with it), it is also clear that there is a majority against Option A (8 does not support), compared to Option C (3 does not support).
This is not just Philip¹s and mine arguments, it is the pure fact.
I can fully understand that, as in all voting cases, it may sometimes be hard to understand why a majority has other thoughts about a specific topic.
And all WG members had (and have) their freedom to further explain and argue their support for a specific solution/option. As you say George, sometimes a support for one specified option needs more detailed explanation, where other options may be more clear, "fair and balanced".
As to Option 6: As you may recall, you have made the presentation during our WG meetings, and we (the full WG) have discussed it. As you also may recall, the conclusion within our WG meetings was that not all courts would accept that, independently of what the parties have agreed upon. During last call, we invited you to - during the upcoming week provide us (the WG) with your suggestion on your proposed specific solution to be added to the current description of the arbitration option for consideration by the WG.
I therefore look forward your specific wording / suggestion on that topic.
All the best,
Petter
-- Petter Rindforth, LL M
Fenix Legal KB Stureplan 4c, 4tr 114 35 Stockholm Sweden Fax: +46(0)8-4631010 Direct phone: +46(0)702-369360 E-mail: petter.rindforth@fenixlegal.eu www.fenixlegal.eu
NOTICE This e-mail message is intended solely for the individual or individuals to whom it is addressed. It may contain confidential attorney-client privileged information and attorney work product. If the reader of this message is not the intended recipient, you are requested not to read, copy or distribute it or any of the information it contains. Please delete it immediately and notify us by return e-mail. Fenix Legal KB, Sweden, www.fenixlegal.eu Thank you
17 november 2017 20:16:33 +01:00, skrev George Kirikos <icann@leap.com>:
I think the comments within this survey are quite telling. Those who are in favour of option A (and opposing option C) have very strong and fully considered views, which they can explain and support with facts and reasoning. Compare that to those expressing support for C (and opposing A/B). They make statements like:
"Fair and balanced" (supporting C) "DOA at Council" (opposing A)
bereft of credible reasoning.
This demonstrates that it's fear-mongering by the co-chairs and political motivations that led some to switch from Option 1 (now Option A) to Option C (formerly Option 2), rather than anything based on new facts or new analysis. Given this, it explains the refusal by the co-chairs to attach names to those who are supporting Option C -- there's no expectation of privacy here --- everyone must vote publicly when it comes down to a final consensus call, and should have been able to publicly explain why they supported Option C in this preliminary survey.
In the book "Principles" by Ray Dalio that I'm reading, he writes about how decisions at Bridgewater go through what's called "believability-weighted decision making", see some discussion of that at:
http://www.businessinsider.com/bridgewater-ray-dalio-legacy-2017-9
I think that is a wise approach, whereby votes that are backed by sound logic, facts, experience, and reasoning should be weighted much higher than votes that lack those attributes and which are instead fear-driven and thus are not believable.
It's been said that "One man with courage makes a majority." Hopefully it does not have to come to that.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/
On Fri, Nov 17, 2017 at 1:50 PM, Mary Wong <mary.wong@icann.org> wrote:
Dear all,
As noted on the Working Group call yesterday, please find attached the consolidated results of the informal poll that was conducted regarding Working Group member preferences as among Options A, B and C.
Individual Working Group members especially those who provided specific comments as part of their poll response are invited to add any relevant background and further thoughts to this email.
Thanks and cheers
Mary
_______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
_______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.orghttps://mm.icann.org/mailman/listinfo/gnso-igo-ingo -crp
"With all respect, I have yet to see any argument in favor of the positions currently being promoted by the Chairs - other than (a) the Board/GAC/IGOs want it that way." This is not a correct statement. The Co-Chairs, both together and separately, have articulated multiple policy rationales for their views on the options before this WG, but never have we stated that are seeking to cater to the Board/GAC/IGOs. Our primary objective has been to seek a resolution that is based in sound and consistent policy analysis and that is likely to receive a majority - and hopefully supermajority - vote of approval in GNSO Council. The Board has taken no official position on the matters before this WG and will not do so until it receives a report and recommendations supported by Council (noting further that the Board asked us to consider, but did not endorse, the position of the "IGO small group"). While I hope that the GAC and IGOs will take the time to carefully read and consider our final report and recommendations, the position the have consistently urged is that the WG recommend a separate CRP for IGOs in which domain registrants would have no right of judicial review. The Co-Chairs have never supported that GAC/IGO position. As we move toward consideration of a draft final report, let's please try to stick to facts and not their alternatives. Best, Philip From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of Paul Keating Sent: Wednesday, November 22, 2017 12:09 PM To: petter.rindforth@fenixlegal.eu; George Kirikos <icann@leap.com> Cc: gnso-igo-ingo-crp@icann.org Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C Importance: High Peter, I do wish to point out that the UDRP was not intended to create rights that did not exist prior to the UDRP. This is in the founding WIPO report that was adopted by ICANN with a great deal of grandeur. The 1999 Report also stated as a foundational position that respondents were to retain their day in court. NGOs existed prior to the UDRP. Prior to the UDRP the only means by which they could enforce rights as against a domain name registrant was to commence litigation (either directly or indirectly via a stalking horse/assignee, etc). Pre-UDRP there was no basis for forcing the respondent into any form of arbitration. The UDRP was thoughtfully created to grant the right to litigate de novo. The Policy references such litigation in several places and the consent to Mutual Jurisdiction is expressly limited to the dispute concerning the domain name. From this several sound legal principles have arisen. 1. Policy 4(k) does not itself create an independent right of action. A losing respondent must still find a statutory basis upon which to rest its claim. This has been recognized in virtually all post-UDRP cases including those in the UK (note the Yoyo decision among others). 2. The Mutual Jurisdiction certification does not extend beyond the reversal of the UDRP decision. The certification does not itself grant personal jurisdiction over the Complainant (now defendant) for any other form of claim. This precludes the awarding of monetary damages other than costs unless there is an independent claim to base it upon or the court has personal jurisdiction over the Complainant/defendant independently of the MJ certification. By creating an independent arbitration process for NGOs you are (a) contradicting not one but at least two of founding principles of the UDRP. With all respect, I have yet to see any argument in favor of the positions currently being promoted by the Chairs - other than (a) the Board/GAC/IGOs want it that way. And, now that George has surfaced an actual study comparing tech costs of arbitration to traditional litigation, there seems absolutely no credible reason to continue to support the private arbitration suggestions. I invite ANYONE to provide evidence to the contrary. And by evidence I mean that - not assumptions or beliefs but facts. Thank you, Sincerely, Paul Raynor Keating, Esq. Law.es<http://law.es/> Tel. +34 93 368 0247 (Spain) Tel. +44.7531.400.177 (UK) Tel. +1.415.937.0846 (US) Fax. (Europe) +34 93 396 0810 Fax. (US)(415) 358.4450 Skype: Prk-Spain email: Paul@law.es<mailto:Paul@law.es> THE INFORMATION CONTAINED IN THIS E-MAIL IS CONFIDENTIAL AND MAY CONTAIN INFORMATION SUBJECT TO THE ATTORNEY/CLIENT OR WORK-PRODUCT PRIVILEGE. THE INFORMATION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED. IF YOU ARE NOT THE INTENDED RECIPIENT, NO WAIVER OF PRIVILEGE IS MADE OR INTENDED AND YOU ARE REQUESTED TO PLEASE DELETE THE EMAIL AND ANY ATTACHMENTS. Circular 230 Disclosure: To assure compliance with Treasury Department rules governing tax practice, we hereby inform you that any advice contained herein (including in any attachment) (1) was not written or intended to be used, and cannot be used, by you or any taxpayer for the purpose of avoiding any penalties that may be imposed on you or any taxpayer and (2) may not be used or referred to by you or any other person in connection with promoting, marketing or recommending to another person any transaction or matter addressed herein. NOTHING CONTAINED IN THIS EMAIL SHALL CONSTITUTE THE FORMATION OF AN ATTORNEY/CLIENT RELATIONSHIP; SUCH A RELATIONSHIP MAY BE FORMED WITH THIS FIRM AND ATTORNEY ONLY BY SEPARATE FORMAL WRITTEN ENGAGEMENT AGREEMENT, WHICH THIS IS NOT. IN THE ABSENCE OF SUCH AN AGREEMENT, NOTHING CONTAINED HEREIN SHALL CONSTITUTE LEGAL ADVICE From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org<mailto:gnso-igo-ingo-crp-bounces@icann.org>> on behalf of Petter Rindforth <petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu>> Reply-To: <petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu>> Date: Saturday, November 18, 2017 at 12:22 AM To: George Kirikos <icann@leap.com<mailto:icann@leap.com>> Cc: "gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>" <gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>> Subject: Re: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C Dear George, I think you have made it continuously clear that you are in favour of Option A. And, as a WG member, you are of course free to explain why you voted for Option A. However, the fact is that we not just only have a clear majority support for Option C (9 supports and 2 that can live with it), compared to Option A (5 supports and 1 that can live with it), it is also clear that there is a majority against Option A (8 does not support), compared to Option C (3 does not support). This is not just Philip's and mine arguments, it is the pure fact. I can fully understand that, as in all voting cases, it may sometimes be hard to understand why a majority has other thoughts about a specific topic. And all WG members had (and have) their freedom to further explain and argue their support for a specific solution/option. As you say George, sometimes a support for one specified option needs more detailed explanation, where other options may be more clear, "fair and balanced". As to Option 6: As you may recall, you have made the presentation during our WG meetings, and we (the full WG) have discussed it. As you also may recall, the conclusion within our WG meetings was that not all courts would accept that, independently of what the parties have agreed upon. During last call, we invited you to - during the upcoming week - provide us (the WG) with your suggestion on your proposed specific solution to be added to the current description of the arbitration option for consideration by the WG. I therefore look forward your specific wording / suggestion on that topic. All the best, Petter -- Petter Rindforth, LL M Fenix Legal KB Stureplan 4c, 4tr 114 35 Stockholm Sweden Fax: +46(0)8-4631010 Direct phone: +46(0)702-369360 E-mail: petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu> www.fenixlegal.eu<http://www.fenixlegal.eu> NOTICE This e-mail message is intended solely for the individual or individuals to whom it is addressed. It may contain confidential attorney-client privileged information and attorney work product. If the reader of this message is not the intended recipient, you are requested not to read, copy or distribute it or any of the information it contains. Please delete it immediately and notify us by return e-mail. Fenix Legal KB, Sweden, www.fenixlegal.eu<http://www.fenixlegal.eu> Thank you 17 november 2017 20:16:33 +01:00, skrev George Kirikos <icann@leap.com<mailto:icann@leap.com>>: I think the comments within this survey are quite telling. Those who are in favour of option A (and opposing option C) have very strong and fully considered views, which they can explain and support with facts and reasoning. Compare that to those expressing support for C (and opposing A/B). They make statements like: "Fair and balanced" (supporting C) "DOA at Council" (opposing A) bereft of credible reasoning. This demonstrates that it's fear-mongering by the co-chairs and political motivations that led some to switch from Option 1 (now Option A) to Option C (formerly Option 2), rather than anything based on new facts or new analysis. Given this, it explains the refusal by the co-chairs to attach names to those who are supporting Option C -- there's no expectation of privacy here --- everyone must vote publicly when it comes down to a final consensus call, and should have been able to publicly explain why they supported Option C in this preliminary survey. In the book "Principles" by Ray Dalio that I'm reading, he writes about how decisions at Bridgewater go through what's called "believability-weighted decision making", see some discussion of that at: http://www.businessinsider.com/bridgewater-ray-dalio-legacy-2017-9 I think that is a wise approach, whereby votes that are backed by sound logic, facts, experience, and reasoning should be weighted much higher than votes that lack those attributes and which are instead fear-driven and thus are not believable. It's been said that "One man with courage makes a majority." Hopefully it does not have to come to that. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Fri, Nov 17, 2017 at 1:50 PM, Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> wrote: Dear all, As noted on the Working Group call yesterday, please find attached the consolidated results of the informal poll that was conducted regarding Working Group member preferences as among Options A, B and C. Individual Working Group members - especially those who provided specific comments as part of their poll response - are invited to add any relevant background and further thoughts to this email. Thanks and cheers Mary _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org<mailto:Gnso-igo-ingo-crp@icann.org> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org<mailto:Gnso-igo-ingo-crp@icann.org> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org<mailto:Gnso-igo-ingo-crp@icann.org>https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
Hi Phil, With all respect, I am not aware of the multiple policy rationales. I have seen many statements regarding balancing of interests, etc. None of these are factually or legally based. If there is a listing of factually based reasons I ask that it be sent to the group as a single document. I also request that we stop characterizing subjective impressions as factual evidence. It seems to me that we must first determine if in fact there is actually a problem. This is where you all are pardon the phrase skipping the line. You are jumping to format a solution before it is shown that a problem actually exists. Because I can see no problem to fix, I cannot see any rationale (policy based or otherwise) to create a ³solution² - particularly one as detrimental to the interests of domain registrants as that being considered. IF, it is the intention to include in the report a variety of ³solutions², then the report must, IMHO, Confirm that no facts exists that evidence a problem is in fact present Review each of the proposals and include both the facts and legal positions in favor and against each proposal, Conclude that none of the solutions are in fact required If there is to be a recommended proposal (other than a no change), then I believe the correct way of addressing the issue is to create the report as noted above and seek public review of the report and each of the alternatives contained therein. Otherwise, as I and others have said, We are presuming a problem exists although all facts and legal analysis is to the contrary. We are creating solutions to this presumed but non-existing problem. The drive to create the solutions is politically based the reason being fear that the Board/GAC will reject a Report that does not contain a ³solution² to the non-existing problem. So, the correct course of action is to augment the initial report to describe and reject the various proposals because (a) there is no proven problem and (b) none of them work. Sincerely, Paul Raynor Keating, Esq. Law.es <http://law.es/> Tel. +34 93 368 0247 (Spain) Tel. +44.7531.400.177 (UK) Tel. +1.415.937.0846 (US) Fax. (Europe) +34 93 396 0810 Fax. (US)(415) 358.4450 Skype: Prk-Spain email: Paul@law.es THE INFORMATION CONTAINED IN THIS E-MAIL IS CONFIDENTIAL AND MAY CONTAIN INFORMATION SUBJECT TO THE ATTORNEY/CLIENT OR WORK-PRODUCT PRIVILEGE. THE INFORMATION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED. IF YOU ARE NOT THE INTENDED RECIPIENT, NO WAIVER OF PRIVILEGE IS MADE OR INTENDED AND YOU ARE REQUESTED TO PLEASE DELETE THE EMAIL AND ANY ATTACHMENTS. Circular 230 Disclosure: To assure compliance with Treasury Department rules governing tax practice, we hereby inform you that any advice contained herein (including in any attachment) (1) was not written or intended to be used, and cannot be used, by you or any taxpayer for the purpose of avoiding any penalties that may be imposed on you or any taxpayer and (2) may not be used or referred to by you or any other person in connection with promoting, marketing or recommending to another person any transaction or matter addressed herein. NOTHING CONTAINED IN THIS EMAIL SHALL CONSTITUTE THE FORMATION OF AN ATTORNEY/CLIENT RELATIONSHIP; SUCH A RELATIONSHIP MAY BE FORMED WITH THIS FIRM AND ATTORNEY ONLY BY SEPARATE FORMAL WRITTEN ENGAGEMENT AGREEMENT, WHICH THIS IS NOT. IN THE ABSENCE OF SUCH AN AGREEMENT, NOTHING CONTAINED HEREIN SHALL CONSTITUTE LEGAL ADVICE From: "Corwin, Philip" <pcorwin@verisign.com> Date: Wednesday, November 22, 2017 at 6:20 PM To: Paul Keating <paul@law.es>, "petter.rindforth@fenixlegal.eu" <petter.rindforth@fenixlegal.eu>, "icann@leap.com" <icann@leap.com> Cc: "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Subject: RE: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C
³With all respect, I have yet to see any argument in favor of the positions currently being promoted by the Chairs other than (a) the Board/GAC/IGOs want it that way.²
This is not a correct statement.
The Co-Chairs, both together and separately, have articulated multiple policy rationales for their views on the options before this WG, but never have we stated that are seeking to cater to the Board/GAC/IGOs.
Our primary objective has been to seek a resolution that is based in sound and consistent policy analysis and that is likely to receive a majority and hopefully supermajority vote of approval in GNSO Council.
The Board has taken no official position on the matters before this WG and will not do so until it receives a report and recommendations supported by Council (noting further that the Board asked us to consider, but did not endorse, the position of the ³IGO small group²).
While I hope that the GAC and IGOs will take the time to carefully read and consider our final report and recommendations, the position the have consistently urged is that the WG recommend a separate CRP for IGOs in which domain registrants would have no right of judicial review. The Co-Chairs have never supported that GAC/IGO position.
As we move toward consideration of a draft final report, let¹s please try to stick to facts and not their alternatives.
Best, Philip
From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of Paul Keating Sent: Wednesday, November 22, 2017 12:09 PM To: petter.rindforth@fenixlegal.eu; George Kirikos <icann@leap.com> Cc: gnso-igo-ingo-crp@icann.org Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C Importance: High
Peter,
I do wish to point out that the UDRP was not intended to create rights that did not exist prior to the UDRP. This is in the founding WIPO report that was adopted by ICANN with a great deal of grandeur. The 1999 Report also stated as a foundational position that respondents were to retain their day in court.
NGOs existed prior to the UDRP. Prior to the UDRP the only means by which they could enforce rights as against a domain name registrant was to commence litigation (either directly or indirectly via a stalking horse/assignee, etc). Pre-UDRP there was no basis for forcing the respondent into any form of arbitration.
The UDRP was thoughtfully created to grant the right to litigate de novo. The Policy references such litigation in several places and the consent to Mutual Jurisdiction is expressly limited to the dispute concerning the domain name. From this several sound legal principles have arisen.
1. Policy 4(k) does not itself create an independent right of action. A losing respondent must still find a statutory basis upon which to rest its claim. This has been recognized in virtually all post-UDRP cases including those in the UK (note the Yoyo decision among others).
2. The Mutual Jurisdiction certification does not extend beyond the reversal of the UDRP decision. The certification does not itself grant personal jurisdiction over the Complainant (now defendant) for any other form of claim. This precludes the awarding of monetary damages other than costs unless there is an independent claim to base it upon or the court has personal jurisdiction over the Complainant/defendant independently of the MJ certification.
By creating an independent arbitration process for NGOs you are (a) contradicting not one but at least two of founding principles of the UDRP.
With all respect, I have yet to see any argument in favor of the positions currently being promoted by the Chairs other than (a) the Board/GAC/IGOs want it that way.
And, now that George has surfaced an actual study comparing tech costs of arbitration to traditional litigation, there seems absolutely no credible reason to continue to support the private arbitration suggestions.
I invite ANYONE to provide evidence to the contrary. And by evidence I mean that not assumptions or beliefs but facts.
Thank you,
Sincerely,
Paul Raynor Keating, Esq.
Law.es <http://law.es/>
Tel. +34 93 368 0247 (Spain)
Tel. +44.7531.400.177 (UK) Tel. +1.415.937.0846 (US)
Fax. (Europe) +34 93 396 0810
Fax. (US)(415) 358.4450
Skype: Prk-Spain
email: Paul@law.es <mailto:Paul@law.es>
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Circular 230 Disclosure: To assure compliance with Treasury Department rules governing tax practice, we hereby inform you that any advice contained herein (including in any attachment) (1) was not written or intended to be used, and cannot be used, by you or any taxpayer for the purpose of avoiding any penalties that may be imposed on you or any taxpayer and (2) may not be used or referred to by you or any other person in connection with promoting, marketing or recommending to another person any transaction or matter addressed herein.
NOTHING CONTAINED IN THIS EMAIL SHALL CONSTITUTE THE FORMATION OF AN ATTORNEY/CLIENT RELATIONSHIP; SUCH A RELATIONSHIP MAY BE FORMED WITH THIS FIRM AND ATTORNEY ONLY BY SEPARATE FORMAL WRITTEN ENGAGEMENT AGREEMENT, WHICH THIS IS NOT. IN THE ABSENCE OF SUCH AN AGREEMENT, NOTHING CONTAINED HEREIN SHALL CONSTITUTE LEGAL ADVICE
From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org> on behalf of Petter Rindforth <petter.rindforth@fenixlegal.eu> Reply-To: <petter.rindforth@fenixlegal.eu> Date: Saturday, November 18, 2017 at 12:22 AM To: George Kirikos <icann@leap.com> Cc: "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C
Dear George,
I think you have made it continuously clear that you are in favour of Option A. And, as a WG member, you are of course free to explain why you voted for Option A.
However, the fact is that we not just only have a clear majority support for Option C (9 supports and 2 that can live with it), compared to Option A (5 supports and 1 that can live with it), it is also clear that there is a majority against Option A (8 does not support), compared to Option C (3 does not support).
This is not just Philip¹s and mine arguments, it is the pure fact.
I can fully understand that, as in all voting cases, it may sometimes be hard to understand why a majority has other thoughts about a specific topic.
And all WG members had (and have) their freedom to further explain and argue their support for a specific solution/option. As you say George, sometimes a support for one specified option needs more detailed explanation, where other options may be more clear, "fair and balanced".
As to Option 6: As you may recall, you have made the presentation during our WG meetings, and we (the full WG) have discussed it. As you also may recall, the conclusion within our WG meetings was that not all courts would accept that, independently of what the parties have agreed upon. During last call, we invited you to - during the upcoming week provide us (the WG) with your suggestion on your proposed specific solution to be added to the current description of the arbitration option for consideration by the WG.
I therefore look forward your specific wording / suggestion on that topic.
All the best,
Petter
--
Petter Rindforth, LL M
Fenix Legal KB
Stureplan 4c, 4tr
114 35 Stockholm
Sweden
Fax: +46(0)8-4631010
Direct phone: +46(0)702-369360
E-mail: petter.rindforth@fenixlegal.eu
www.fenixlegal.eu <http://www.fenixlegal.eu>
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Thank you
17 november 2017 20:16:33 +01:00, skrev George Kirikos <icann@leap.com>:
I think the comments within this survey are quite telling. Those who
are in favour of option A (and opposing option C) have very strong and
fully considered views, which they can explain and support with facts
and reasoning. Compare that to those expressing support for C (and
opposing A/B). They make statements like:
"Fair and balanced" (supporting C)
"DOA at Council" (opposing A)
bereft of credible reasoning.
This demonstrates that it's fear-mongering by the co-chairs and
political motivations that led some to switch from Option 1 (now
Option A) to Option C (formerly Option 2), rather than anything based
on new facts or new analysis. Given this, it explains the refusal by
the co-chairs to attach names to those who are supporting Option C --
there's no expectation of privacy here --- everyone must vote publicly
when it comes down to a final consensus call, and should have been
able to publicly explain why they supported Option C in this
preliminary survey.
In the book "Principles" by Ray Dalio that I'm reading, he writes
about how decisions at Bridgewater go through what's called
"believability-weighted decision making", see some discussion of that
at:
http://www.businessinsider.com/bridgewater-ray-dalio-legacy-2017-9
I think that is a wise approach, whereby votes that are backed by
sound logic, facts, experience, and reasoning should be weighted much
higher than votes that lack those attributes and which are instead
fear-driven and thus are not believable.
It's been said that "One man with courage makes a majority." Hopefully
it does not have to come to that.
Sincerely,
George Kirikos
416-588-0269
On Fri, Nov 17, 2017 at 1:50 PM, Mary Wong <mary.wong@icann.org> wrote:
Dear all,
As noted on the Working Group call yesterday, please find attached the
consolidated results of the informal poll that was conducted regarding
Working Group member preferences as among Options A, B and C.
Individual Working Group members especially those who provided specific
comments as part of their poll response are invited to add any relevant
background and further thoughts to this email.
Thanks and cheers
Mary
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Gnso-igo-ingo-crp@icann.org
_______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.orghttps://mm.icann.org/mailman/listinfo/gnso-igo-ing o-crp
Paul: With all respect, this is a POLICY Development Process. Having participated in the development of US laws for four decades, all of which represent a (usually quite compromised) policy determination, I can assure you that the question of whether or not a problem exists for which some law must be enacted or amended is a constant issue on which there is seldom if ever agreement by opposing parties with different interests. If the enactment of a law required absolute proof of a problem to which it was responding the statute books would be a lot slimmer. For our WG's purpose, the fact that IGOs claim that the mutual jurisdiction clause inhibits their utilization of existing CRP avenues is adequate evidence that there is a claimed problem. The fact that some IGOs have chosen to utilize the UDRP notwithstanding this possible judicial exposure does not mean that it does not inhibit other IGOs. We are addressing this claim by: * Pointing out that IGOs may insulate themselves from exposure by filing for CRP relief via an agent, assignee, or licensee [no policy change] * Leaving the issue of whether an IGO may successfully assert immunity when a losing registrant seeks de novo determination to the court, which is where it should be resolved under prevailing national law and analytic approach [no policy change] * Providing the registrant with an alternative means of getting a de novo determination under relevant law if the court upholds the immunity claim (presuming that the final consensus call still favors Option C) [modest policy change which benefits the registrant, and seeks to balance the respective rights of the two parties] Finally, to once again restate prior comments which apparently have not been noted, my personal concern is NOT "fear that the Board/GAC will reject a Report". My goal is to produce a Final Report that can receive Council support - hopefully Supermajority - which is the best means of ensuring Board adoption even if the GAC and IGOs continue to press for a separate CRP for exclusive use of IGOs, which I have never favored and which has received no traction in this WG. Best, Philip Philip S. Corwin Policy Counsel VeriSign, Inc. 12061 Bluemont Way Reston, VA 20190 703-948-4648/Direct 571-342-7489/Cell "Luck is the residue of design" -- Branch Rickey From: Paul Keating [mailto:Paul@law.es] Sent: Wednesday, November 22, 2017 12:42 PM To: Corwin, Philip <pcorwin@verisign.com>; petter.rindforth@fenixlegal.eu; icann@leap.com Cc: gnso-igo-ingo-crp@icann.org Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C Hi Phil, With all respect, I am not aware of the multiple policy rationales. I have seen many statements regarding balancing of interests, etc. None of these are factually or legally based. If there is a listing of factually based reasons I ask that it be sent to the group as a single document. I also request that we stop characterizing subjective impressions as factual evidence. It seems to me that we must first determine if in fact there is actually a problem. This is where you all are - pardon the phrase - skipping the line. You are jumping to format a solution before it is shown that a problem actually exists. Because I can see no problem to fix, I cannot see any rationale (policy based or otherwise) to create a "solution" - particularly one as detrimental to the interests of domain registrants as that being considered. IF, it is the intention to include in the report a variety of "solutions", then the report must, IMHO, Confirm that no facts exists that evidence a problem is in fact present Review each of the proposals and include both the facts and legal positions in favor and against each proposal, Conclude that none of the solutions are in fact required If there is to be a recommended proposal (other than a no change), then I believe the correct way of addressing the issue is to create the report as noted above and seek public review of the report and each of the alternatives contained therein. Otherwise, as I and others have said, We are presuming a problem exists although all facts and legal analysis is to the contrary. We are creating solutions to this presumed but non-existing problem. The drive to create the solutions is politically based - the reason being fear that the Board/GAC will reject a Report that does not contain a "solution" to the non-existing problem. So, the correct course of action is to augment the initial report to describe and reject the various proposals because (a) there is no proven problem and (b) none of them work. Sincerely, Paul Raynor Keating, Esq. Law.es<http://law.es/> Tel. +34 93 368 0247 (Spain) Tel. +44.7531.400.177 (UK) Tel. +1.415.937.0846 (US) Fax. (Europe) +34 93 396 0810 Fax. (US)(415) 358.4450 Skype: Prk-Spain email: Paul@law.es<mailto:Paul@law.es> THE INFORMATION CONTAINED IN THIS E-MAIL IS CONFIDENTIAL AND MAY CONTAIN INFORMATION SUBJECT TO THE ATTORNEY/CLIENT OR WORK-PRODUCT PRIVILEGE. THE INFORMATION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED. IF YOU ARE NOT THE INTENDED RECIPIENT, NO WAIVER OF PRIVILEGE IS MADE OR INTENDED AND YOU ARE REQUESTED TO PLEASE DELETE THE EMAIL AND ANY ATTACHMENTS. Circular 230 Disclosure: To assure compliance with Treasury Department rules governing tax practice, we hereby inform you that any advice contained herein (including in any attachment) (1) was not written or intended to be used, and cannot be used, by you or any taxpayer for the purpose of avoiding any penalties that may be imposed on you or any taxpayer and (2) may not be used or referred to by you or any other person in connection with promoting, marketing or recommending to another person any transaction or matter addressed herein. NOTHING CONTAINED IN THIS EMAIL SHALL CONSTITUTE THE FORMATION OF AN ATTORNEY/CLIENT RELATIONSHIP; SUCH A RELATIONSHIP MAY BE FORMED WITH THIS FIRM AND ATTORNEY ONLY BY SEPARATE FORMAL WRITTEN ENGAGEMENT AGREEMENT, WHICH THIS IS NOT. IN THE ABSENCE OF SUCH AN AGREEMENT, NOTHING CONTAINED HEREIN SHALL CONSTITUTE LEGAL ADVICE From: "Corwin, Philip" <pcorwin@verisign.com<mailto:pcorwin@verisign.com>> Date: Wednesday, November 22, 2017 at 6:20 PM To: Paul Keating <paul@law.es<mailto:paul@law.es>>, "petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu>" <petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu>>, "icann@leap.com<mailto:icann@leap.com>" <icann@leap.com<mailto:icann@leap.com>> Cc: "gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>" <gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>> Subject: RE: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C "With all respect, I have yet to see any argument in favor of the positions currently being promoted by the Chairs - other than (a) the Board/GAC/IGOs want it that way." This is not a correct statement. The Co-Chairs, both together and separately, have articulated multiple policy rationales for their views on the options before this WG, but never have we stated that are seeking to cater to the Board/GAC/IGOs. Our primary objective has been to seek a resolution that is based in sound and consistent policy analysis and that is likely to receive a majority - and hopefully supermajority - vote of approval in GNSO Council. The Board has taken no official position on the matters before this WG and will not do so until it receives a report and recommendations supported by Council (noting further that the Board asked us to consider, but did not endorse, the position of the "IGO small group"). While I hope that the GAC and IGOs will take the time to carefully read and consider our final report and recommendations, the position the have consistently urged is that the WG recommend a separate CRP for IGOs in which domain registrants would have no right of judicial review. The Co-Chairs have never supported that GAC/IGO position. As we move toward consideration of a draft final report, let's please try to stick to facts and not their alternatives. Best, Philip From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of Paul Keating Sent: Wednesday, November 22, 2017 12:09 PM To: petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu>; George Kirikos <icann@leap.com<mailto:icann@leap.com>> Cc: gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org> Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C Importance: High Peter, I do wish to point out that the UDRP was not intended to create rights that did not exist prior to the UDRP. This is in the founding WIPO report that was adopted by ICANN with a great deal of grandeur. The 1999 Report also stated as a foundational position that respondents were to retain their day in court. NGOs existed prior to the UDRP. Prior to the UDRP the only means by which they could enforce rights as against a domain name registrant was to commence litigation (either directly or indirectly via a stalking horse/assignee, etc). Pre-UDRP there was no basis for forcing the respondent into any form of arbitration. The UDRP was thoughtfully created to grant the right to litigate de novo. The Policy references such litigation in several places and the consent to Mutual Jurisdiction is expressly limited to the dispute concerning the domain name. From this several sound legal principles have arisen. 1. Policy 4(k) does not itself create an independent right of action. A losing respondent must still find a statutory basis upon which to rest its claim. This has been recognized in virtually all post-UDRP cases including those in the UK (note the Yoyo decision among others). 2. The Mutual Jurisdiction certification does not extend beyond the reversal of the UDRP decision. The certification does not itself grant personal jurisdiction over the Complainant (now defendant) for any other form of claim. This precludes the awarding of monetary damages other than costs unless there is an independent claim to base it upon or the court has personal jurisdiction over the Complainant/defendant independently of the MJ certification. By creating an independent arbitration process for NGOs you are (a) contradicting not one but at least two of founding principles of the UDRP. With all respect, I have yet to see any argument in favor of the positions currently being promoted by the Chairs - other than (a) the Board/GAC/IGOs want it that way. And, now that George has surfaced an actual study comparing tech costs of arbitration to traditional litigation, there seems absolutely no credible reason to continue to support the private arbitration suggestions. I invite ANYONE to provide evidence to the contrary. And by evidence I mean that - not assumptions or beliefs but facts. Thank you, Sincerely, Paul Raynor Keating, Esq. Law.es<http://law.es/> Tel. +34 93 368 0247 (Spain) Tel. +44.7531.400.177 (UK) Tel. +1.415.937.0846 (US) Fax. (Europe) +34 93 396 0810 Fax. (US)(415) 358.4450 Skype: Prk-Spain email: Paul@law.es<mailto:Paul@law.es> THE INFORMATION CONTAINED IN THIS E-MAIL IS CONFIDENTIAL AND MAY CONTAIN INFORMATION SUBJECT TO THE ATTORNEY/CLIENT OR WORK-PRODUCT PRIVILEGE. THE INFORMATION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED. IF YOU ARE NOT THE INTENDED RECIPIENT, NO WAIVER OF PRIVILEGE IS MADE OR INTENDED AND YOU ARE REQUESTED TO PLEASE DELETE THE EMAIL AND ANY ATTACHMENTS. Circular 230 Disclosure: To assure compliance with Treasury Department rules governing tax practice, we hereby inform you that any advice contained herein (including in any attachment) (1) was not written or intended to be used, and cannot be used, by you or any taxpayer for the purpose of avoiding any penalties that may be imposed on you or any taxpayer and (2) may not be used or referred to by you or any other person in connection with promoting, marketing or recommending to another person any transaction or matter addressed herein. NOTHING CONTAINED IN THIS EMAIL SHALL CONSTITUTE THE FORMATION OF AN ATTORNEY/CLIENT RELATIONSHIP; SUCH A RELATIONSHIP MAY BE FORMED WITH THIS FIRM AND ATTORNEY ONLY BY SEPARATE FORMAL WRITTEN ENGAGEMENT AGREEMENT, WHICH THIS IS NOT. IN THE ABSENCE OF SUCH AN AGREEMENT, NOTHING CONTAINED HEREIN SHALL CONSTITUTE LEGAL ADVICE From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org<mailto:gnso-igo-ingo-crp-bounces@icann.org>> on behalf of Petter Rindforth <petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu>> Reply-To: <petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu>> Date: Saturday, November 18, 2017 at 12:22 AM To: George Kirikos <icann@leap.com<mailto:icann@leap.com>> Cc: "gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>" <gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>> Subject: Re: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C Dear George, I think you have made it continuously clear that you are in favour of Option A. And, as a WG member, you are of course free to explain why you voted for Option A. However, the fact is that we not just only have a clear majority support for Option C (9 supports and 2 that can live with it), compared to Option A (5 supports and 1 that can live with it), it is also clear that there is a majority against Option A (8 does not support), compared to Option C (3 does not support). This is not just Philip's and mine arguments, it is the pure fact. I can fully understand that, as in all voting cases, it may sometimes be hard to understand why a majority has other thoughts about a specific topic. And all WG members had (and have) their freedom to further explain and argue their support for a specific solution/option. As you say George, sometimes a support for one specified option needs more detailed explanation, where other options may be more clear, "fair and balanced". As to Option 6: As you may recall, you have made the presentation during our WG meetings, and we (the full WG) have discussed it. As you also may recall, the conclusion within our WG meetings was that not all courts would accept that, independently of what the parties have agreed upon. During last call, we invited you to - during the upcoming week - provide us (the WG) with your suggestion on your proposed specific solution to be added to the current description of the arbitration option for consideration by the WG. I therefore look forward your specific wording / suggestion on that topic. All the best, Petter -- Petter Rindforth, LL M Fenix Legal KB Stureplan 4c, 4tr 114 35 Stockholm Sweden Fax: +46(0)8-4631010 Direct phone: +46(0)702-369360 E-mail: petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu> www.fenixlegal.eu<http://www.fenixlegal.eu> NOTICE This e-mail message is intended solely for the individual or individuals to whom it is addressed. It may contain confidential attorney-client privileged information and attorney work product. If the reader of this message is not the intended recipient, you are requested not to read, copy or distribute it or any of the information it contains. Please delete it immediately and notify us by return e-mail. Fenix Legal KB, Sweden, www.fenixlegal.eu<http://www.fenixlegal.eu> Thank you 17 november 2017 20:16:33 +01:00, skrev George Kirikos <icann@leap.com<mailto:icann@leap.com>>: I think the comments within this survey are quite telling. Those who are in favour of option A (and opposing option C) have very strong and fully considered views, which they can explain and support with facts and reasoning. Compare that to those expressing support for C (and opposing A/B). They make statements like: "Fair and balanced" (supporting C) "DOA at Council" (opposing A) bereft of credible reasoning. This demonstrates that it's fear-mongering by the co-chairs and political motivations that led some to switch from Option 1 (now Option A) to Option C (formerly Option 2), rather than anything based on new facts or new analysis. Given this, it explains the refusal by the co-chairs to attach names to those who are supporting Option C -- there's no expectation of privacy here --- everyone must vote publicly when it comes down to a final consensus call, and should have been able to publicly explain why they supported Option C in this preliminary survey. In the book "Principles" by Ray Dalio that I'm reading, he writes about how decisions at Bridgewater go through what's called "believability-weighted decision making", see some discussion of that at: http://www.businessinsider.com/bridgewater-ray-dalio-legacy-2017-9 I think that is a wise approach, whereby votes that are backed by sound logic, facts, experience, and reasoning should be weighted much higher than votes that lack those attributes and which are instead fear-driven and thus are not believable. It's been said that "One man with courage makes a majority." Hopefully it does not have to come to that. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Fri, Nov 17, 2017 at 1:50 PM, Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> wrote: Dear all, As noted on the Working Group call yesterday, please find attached the consolidated results of the informal poll that was conducted regarding Working Group member preferences as among Options A, B and C. Individual Working Group members - especially those who provided specific comments as part of their poll response - are invited to add any relevant background and further thoughts to this email. Thanks and cheers Mary _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org<mailto:Gnso-igo-ingo-crp@icann.org> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org<mailto:Gnso-igo-ingo-crp@icann.org> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org<mailto:Gnso-igo-ingo-crp@icann.org>https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
+1 For additional history of the UDRP, see: http://dmaher.org/Publications/globaliz.pdf David W. Maher Public Interest Registry Senior Vice-President - Law & Policy +1 312 375 4849 From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of Paul Keating Sent: Wednesday, November 22, 2017 11:09 AM To: petter.rindforth@fenixlegal.eu; George Kirikos <icann@leap.com> Cc: gnso-igo-ingo-crp@icann.org Subject: Re: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C Importance: High Peter, I do wish to point out that the UDRP was not intended to create rights that did not exist prior to the UDRP. This is in the founding WIPO report that was adopted by ICANN with a great deal of grandeur. The 1999 Report also stated as a foundational position that respondents were to retain their day in court. NGOs existed prior to the UDRP. Prior to the UDRP the only means by which they could enforce rights as against a domain name registrant was to commence litigation (either directly or indirectly via a stalking horse/assignee, etc). Pre-UDRP there was no basis for forcing the respondent into any form of arbitration. The UDRP was thoughtfully created to grant the right to litigate de novo. The Policy references such litigation in several places and the consent to Mutual Jurisdiction is expressly limited to the dispute concerning the domain name. From this several sound legal principles have arisen. 1. Policy 4(k) does not itself create an independent right of action. A losing respondent must still find a statutory basis upon which to rest its claim. This has been recognized in virtually all post-UDRP cases including those in the UK (note the Yoyo decision among others). 2. The Mutual Jurisdiction certification does not extend beyond the reversal of the UDRP decision. The certification does not itself grant personal jurisdiction over the Complainant (now defendant) for any other form of claim. This precludes the awarding of monetary damages other than costs unless there is an independent claim to base it upon or the court has personal jurisdiction over the Complainant/defendant independently of the MJ certification. By creating an independent arbitration process for NGOs you are (a) contradicting not one but at least two of founding principles of the UDRP. With all respect, I have yet to see any argument in favor of the positions currently being promoted by the Chairs - other than (a) the Board/GAC/IGOs want it that way. And, now that George has surfaced an actual study comparing tech costs of arbitration to traditional litigation, there seems absolutely no credible reason to continue to support the private arbitration suggestions. I invite ANYONE to provide evidence to the contrary. And by evidence I mean that - not assumptions or beliefs but facts. Thank you, Sincerely, Paul Raynor Keating, Esq. Law.es<http://law.es/> Tel. +34 93 368 0247 (Spain) Tel. +44.7531.400.177 (UK) Tel. +1.415.937.0846 (US) Fax. (Europe) +34 93 396 0810 Fax. (US)(415) 358.4450 Skype: Prk-Spain email: Paul@law.es<mailto:Paul@law.es> THE INFORMATION CONTAINED IN THIS E-MAIL IS CONFIDENTIAL AND MAY CONTAIN INFORMATION SUBJECT TO THE ATTORNEY/CLIENT OR WORK-PRODUCT PRIVILEGE. THE INFORMATION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED. IF YOU ARE NOT THE INTENDED RECIPIENT, NO WAIVER OF PRIVILEGE IS MADE OR INTENDED AND YOU ARE REQUESTED TO PLEASE DELETE THE EMAIL AND ANY ATTACHMENTS. Circular 230 Disclosure: To assure compliance with Treasury Department rules governing tax practice, we hereby inform you that any advice contained herein (including in any attachment) (1) was not written or intended to be used, and cannot be used, by you or any taxpayer for the purpose of avoiding any penalties that may be imposed on you or any taxpayer and (2) may not be used or referred to by you or any other person in connection with promoting, marketing or recommending to another person any transaction or matter addressed herein. NOTHING CONTAINED IN THIS EMAIL SHALL CONSTITUTE THE FORMATION OF AN ATTORNEY/CLIENT RELATIONSHIP; SUCH A RELATIONSHIP MAY BE FORMED WITH THIS FIRM AND ATTORNEY ONLY BY SEPARATE FORMAL WRITTEN ENGAGEMENT AGREEMENT, WHICH THIS IS NOT. IN THE ABSENCE OF SUCH AN AGREEMENT, NOTHING CONTAINED HEREIN SHALL CONSTITUTE LEGAL ADVICE From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org<mailto:gnso-igo-ingo-crp-bounces@icann.org>> on behalf of Petter Rindforth <petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu>> Reply-To: <petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu>> Date: Saturday, November 18, 2017 at 12:22 AM To: George Kirikos <icann@leap.com<mailto:icann@leap.com>> Cc: "gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>" <gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>> Subject: Re: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C Dear George, I think you have made it continuously clear that you are in favour of Option A. And, as a WG member, you are of course free to explain why you voted for Option A. However, the fact is that we not just only have a clear majority support for Option C (9 supports and 2 that can live with it), compared to Option A (5 supports and 1 that can live with it), it is also clear that there is a majority against Option A (8 does not support), compared to Option C (3 does not support). This is not just Philip's and mine arguments, it is the pure fact. I can fully understand that, as in all voting cases, it may sometimes be hard to understand why a majority has other thoughts about a specific topic. And all WG members had (and have) their freedom to further explain and argue their support for a specific solution/option. As you say George, sometimes a support for one specified option needs more detailed explanation, where other options may be more clear, "fair and balanced". As to Option 6: As you may recall, you have made the presentation during our WG meetings, and we (the full WG) have discussed it. As you also may recall, the conclusion within our WG meetings was that not all courts would accept that, independently of what the parties have agreed upon. During last call, we invited you to - during the upcoming week - provide us (the WG) with your suggestion on your proposed specific solution to be added to the current description of the arbitration option for consideration by the WG. I therefore look forward your specific wording / suggestion on that topic. All the best, Petter -- Petter Rindforth, LL M [cid:image001.jpg@01D36385.9590A080] Fenix Legal KB Stureplan 4c, 4tr 114 35 Stockholm Sweden Fax: +46(0)8-4631010 Direct phone: +46(0)702-369360 E-mail: petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu> www.fenixlegal.eu<http://www.fenixlegal.eu> NOTICE This e-mail message is intended solely for the individual or individuals to whom it is addressed. It may contain confidential attorney-client privileged information and attorney work product. If the reader of this message is not the intended recipient, you are requested not to read, copy or distribute it or any of the information it contains. Please delete it immediately and notify us by return e-mail. Fenix Legal KB, Sweden, www.fenixlegal.eu<http://www.fenixlegal.eu> Thank you 17 november 2017 20:16:33 +01:00, skrev George Kirikos <icann@leap.com<mailto:icann@leap.com>>: I think the comments within this survey are quite telling. Those who are in favour of option A (and opposing option C) have very strong and fully considered views, which they can explain and support with facts and reasoning. Compare that to those expressing support for C (and opposing A/B). They make statements like: "Fair and balanced" (supporting C) "DOA at Council" (opposing A) bereft of credible reasoning. This demonstrates that it's fear-mongering by the co-chairs and political motivations that led some to switch from Option 1 (now Option A) to Option C (formerly Option 2), rather than anything based on new facts or new analysis. Given this, it explains the refusal by the co-chairs to attach names to those who are supporting Option C -- there's no expectation of privacy here --- everyone must vote publicly when it comes down to a final consensus call, and should have been able to publicly explain why they supported Option C in this preliminary survey. In the book "Principles" by Ray Dalio that I'm reading, he writes about how decisions at Bridgewater go through what's called "believability-weighted decision making", see some discussion of that at: http://www.businessinsider.com/bridgewater-ray-dalio-legacy-2017-9 I think that is a wise approach, whereby votes that are backed by sound logic, facts, experience, and reasoning should be weighted much higher than votes that lack those attributes and which are instead fear-driven and thus are not believable. It's been said that "One man with courage makes a majority." Hopefully it does not have to come to that. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Fri, Nov 17, 2017 at 1:50 PM, Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> wrote: Dear all, As noted on the Working Group call yesterday, please find attached the consolidated results of the informal poll that was conducted regarding Working Group member preferences as among Options A, B and C. Individual Working Group members - especially those who provided specific comments as part of their poll response - are invited to add any relevant background and further thoughts to this email. Thanks and cheers Mary _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org<mailto:Gnso-igo-ingo-crp@icann.org> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org<mailto:Gnso-igo-ingo-crp@icann.org> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org<mailto:Gnso-igo-ingo-crp@icann.org>https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
"By creating an independent arbitration process for NGOs you are (a) contradicting not one but at least two of founding principles of the UDRP." Personal comment: The post-judicial granting of immunity/dismissal of litigation arbitration option is being proposed for the benefit of domain registrants, not IGOs, to assure some meaningful appeal process when the judicial route is foreclosed. But if there is not consensus support for that option we can stick to present policy and leave them without recourse. From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of David W. Maher Sent: Wednesday, November 22, 2017 12:34 PM To: Paul Keating <Paul@law.es>; petter.rindforth@fenixlegal.eu; George Kirikos <icann@leap.com> Cc: gnso-igo-ingo-crp@icann.org Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C +1 For additional history of the UDRP, see: http://dmaher.org/Publications/globaliz.pdf David W. Maher Public Interest Registry Senior Vice-President - Law & Policy +1 312 375 4849 From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of Paul Keating Sent: Wednesday, November 22, 2017 11:09 AM To: petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu>; George Kirikos <icann@leap.com<mailto:icann@leap.com>> Cc: gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C Importance: High Peter, I do wish to point out that the UDRP was not intended to create rights that did not exist prior to the UDRP. This is in the founding WIPO report that was adopted by ICANN with a great deal of grandeur. The 1999 Report also stated as a foundational position that respondents were to retain their day in court. NGOs existed prior to the UDRP. Prior to the UDRP the only means by which they could enforce rights as against a domain name registrant was to commence litigation (either directly or indirectly via a stalking horse/assignee, etc). Pre-UDRP there was no basis for forcing the respondent into any form of arbitration. The UDRP was thoughtfully created to grant the right to litigate de novo. The Policy references such litigation in several places and the consent to Mutual Jurisdiction is expressly limited to the dispute concerning the domain name. From this several sound legal principles have arisen. 1. Policy 4(k) does not itself create an independent right of action. A losing respondent must still find a statutory basis upon which to rest its claim. This has been recognized in virtually all post-UDRP cases including those in the UK (note the Yoyo decision among others). 2. The Mutual Jurisdiction certification does not extend beyond the reversal of the UDRP decision. The certification does not itself grant personal jurisdiction over the Complainant (now defendant) for any other form of claim. This precludes the awarding of monetary damages other than costs unless there is an independent claim to base it upon or the court has personal jurisdiction over the Complainant/defendant independently of the MJ certification. By creating an independent arbitration process for NGOs you are (a) contradicting not one but at least two of founding principles of the UDRP. With all respect, I have yet to see any argument in favor of the positions currently being promoted by the Chairs - other than (a) the Board/GAC/IGOs want it that way. And, now that George has surfaced an actual study comparing tech costs of arbitration to traditional litigation, there seems absolutely no credible reason to continue to support the private arbitration suggestions. I invite ANYONE to provide evidence to the contrary. And by evidence I mean that - not assumptions or beliefs but facts. Thank you, Sincerely, Paul Raynor Keating, Esq. Law.es<http://law.es/> Tel. +34 93 368 0247 (Spain) Tel. +44.7531.400.177 (UK) Tel. +1.415.937.0846 (US) Fax. (Europe) +34 93 396 0810 Fax. (US)(415) 358.4450 Skype: Prk-Spain email: Paul@law.es<mailto:Paul@law.es> THE INFORMATION CONTAINED IN THIS E-MAIL IS CONFIDENTIAL AND MAY CONTAIN INFORMATION SUBJECT TO THE ATTORNEY/CLIENT OR WORK-PRODUCT PRIVILEGE. THE INFORMATION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED. IF YOU ARE NOT THE INTENDED RECIPIENT, NO WAIVER OF PRIVILEGE IS MADE OR INTENDED AND YOU ARE REQUESTED TO PLEASE DELETE THE EMAIL AND ANY ATTACHMENTS. Circular 230 Disclosure: To assure compliance with Treasury Department rules governing tax practice, we hereby inform you that any advice contained herein (including in any attachment) (1) was not written or intended to be used, and cannot be used, by you or any taxpayer for the purpose of avoiding any penalties that may be imposed on you or any taxpayer and (2) may not be used or referred to by you or any other person in connection with promoting, marketing or recommending to another person any transaction or matter addressed herein. NOTHING CONTAINED IN THIS EMAIL SHALL CONSTITUTE THE FORMATION OF AN ATTORNEY/CLIENT RELATIONSHIP; SUCH A RELATIONSHIP MAY BE FORMED WITH THIS FIRM AND ATTORNEY ONLY BY SEPARATE FORMAL WRITTEN ENGAGEMENT AGREEMENT, WHICH THIS IS NOT. IN THE ABSENCE OF SUCH AN AGREEMENT, NOTHING CONTAINED HEREIN SHALL CONSTITUTE LEGAL ADVICE From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org<mailto:gnso-igo-ingo-crp-bounces@icann.org>> on behalf of Petter Rindforth <petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu>> Reply-To: <petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu>> Date: Saturday, November 18, 2017 at 12:22 AM To: George Kirikos <icann@leap.com<mailto:icann@leap.com>> Cc: "gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>" <gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>> Subject: Re: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C Dear George, I think you have made it continuously clear that you are in favour of Option A. And, as a WG member, you are of course free to explain why you voted for Option A. However, the fact is that we not just only have a clear majority support for Option C (9 supports and 2 that can live with it), compared to Option A (5 supports and 1 that can live with it), it is also clear that there is a majority against Option A (8 does not support), compared to Option C (3 does not support). This is not just Philip's and mine arguments, it is the pure fact. I can fully understand that, as in all voting cases, it may sometimes be hard to understand why a majority has other thoughts about a specific topic. And all WG members had (and have) their freedom to further explain and argue their support for a specific solution/option. As you say George, sometimes a support for one specified option needs more detailed explanation, where other options may be more clear, "fair and balanced". As to Option 6: As you may recall, you have made the presentation during our WG meetings, and we (the full WG) have discussed it. As you also may recall, the conclusion within our WG meetings was that not all courts would accept that, independently of what the parties have agreed upon. During last call, we invited you to - during the upcoming week - provide us (the WG) with your suggestion on your proposed specific solution to be added to the current description of the arbitration option for consideration by the WG. I therefore look forward your specific wording / suggestion on that topic. All the best, Petter -- Petter Rindforth, LL M Fenix Legal KB Stureplan 4c, 4tr 114 35 Stockholm Sweden Fax: +46(0)8-4631010 Direct phone: +46(0)702-369360 E-mail: petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu> www.fenixlegal.eu<http://www.fenixlegal.eu> NOTICE This e-mail message is intended solely for the individual or individuals to whom it is addressed. It may contain confidential attorney-client privileged information and attorney work product. If the reader of this message is not the intended recipient, you are requested not to read, copy or distribute it or any of the information it contains. Please delete it immediately and notify us by return e-mail. Fenix Legal KB, Sweden, www.fenixlegal.eu<http://www.fenixlegal.eu> Thank you 17 november 2017 20:16:33 +01:00, skrev George Kirikos <icann@leap.com<mailto:icann@leap.com>>: I think the comments within this survey are quite telling. Those who are in favour of option A (and opposing option C) have very strong and fully considered views, which they can explain and support with facts and reasoning. Compare that to those expressing support for C (and opposing A/B). They make statements like: "Fair and balanced" (supporting C) "DOA at Council" (opposing A) bereft of credible reasoning. This demonstrates that it's fear-mongering by the co-chairs and political motivations that led some to switch from Option 1 (now Option A) to Option C (formerly Option 2), rather than anything based on new facts or new analysis. Given this, it explains the refusal by the co-chairs to attach names to those who are supporting Option C -- there's no expectation of privacy here --- everyone must vote publicly when it comes down to a final consensus call, and should have been able to publicly explain why they supported Option C in this preliminary survey. In the book "Principles" by Ray Dalio that I'm reading, he writes about how decisions at Bridgewater go through what's called "believability-weighted decision making", see some discussion of that at: http://www.businessinsider.com/bridgewater-ray-dalio-legacy-2017-9 I think that is a wise approach, whereby votes that are backed by sound logic, facts, experience, and reasoning should be weighted much higher than votes that lack those attributes and which are instead fear-driven and thus are not believable. It's been said that "One man with courage makes a majority." Hopefully it does not have to come to that. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Fri, Nov 17, 2017 at 1:50 PM, Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> wrote: Dear all, As noted on the Working Group call yesterday, please find attached the consolidated results of the informal poll that was conducted regarding Working Group member preferences as among Options A, B and C. Individual Working Group members - especially those who provided specific comments as part of their poll response - are invited to add any relevant background and further thoughts to this email. Thanks and cheers Mary _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org<mailto:Gnso-igo-ingo-crp@icann.org> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org<mailto:Gnso-igo-ingo-crp@icann.org> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org<mailto:Gnso-igo-ingo-crp@icann.org>https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
Hi folks, On Wed, Nov 22, 2017 at 12:40 PM, Corwin, Philip <pcorwin@verisign.com> wrote:
“By creating an independent arbitration process for NGOs you are (a) contradicting not one but at least two of founding principles of the UDRP.”
Personal comment: The post-judicial granting of immunity/dismissal of litigation arbitration option is being proposed for the benefit of domain registrants, not IGOs, to assure some meaningful appeal process when the judicial route is foreclosed.
That appears to be some sort of admission (finally), that the arbitration option is to the detriment of IGOs, compared to the status quo (I listed a series of questions in a separate email to get at FACTS, without direct response yet, see: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-November/000925.html The problem is, the arbitration option is being proposed as a solution to a directly identifiable problem in the UDRP, i.e. "when the judicial route is foreclosed". i.e. Option C directly admits there is a problem with the UDRP itself (it's due to that reversal of plaintiff/defendant that I've written about in prior emails). But, instead of actually fixing the problem, it creates a totally "ad hoc" solution, based on no fundamental principles whatsoever, that simply "cuts the baby in half" so to speak, as some attempt to appear to "do something" positive. That attempt to "do something" positive doesn't go back to the first principles that Paul Keating, David Maher, and others have been repeatedly trying to point, namely that the domain name registrant is *entitled* to the judicial route. The judicial route (de novo review) was the entire "bargain" that was made when the UDRP was adopted, i.e. that it wouldn't interfere with underlying law. Option C *perpetuates* that interference with underlying law, and REPLACES the judicial route, something registrants are entitled to, with an inferior facsimile. Option C is based on no principles whatsoever, except political concerns that fixing the actual underlying problem (i.e. Option A) would be "politcally incorrect" (i.e. cause the entire report to be rejected, etc.).
But if there is not consensus support for that option we can stick to present policy and leave them without recourse.
Leaving them without judicial recourse (i.e. maintaining the status quo, with the problem intact) represents a continuation of the problem we've identified. But, we've identified a complete solution to the problem, namely Option A. It "flips back" the plaintiff/defendant roles to what they should have been in the first place, had the UDRP not created this procedural quirk in the law which interfered with the legal rights, where X suing Y in court is not symmetric to Y suing X in court in some circumstances. Since we've identified the complete solution, we should adopt it. Just as we should in the related situation that I raised in the RPM PDP, which can affect the URS, UDRP and perhaps even in the PDDRP for new gTLD registry operators in some jurisdictions like the UK. There, the exact same problem arises due to "cause of action" issues when X suing Y in court is slightly different in some circumstances from Y suing X in court for the same underlying dispute. Option A, in particular, doesn't single out IGOs at all --- when properly applied to ALL situations where X suing Y in court is slightly different that Y suing X, it doesn't really care if it's an IGO, or if it's a UK case like we've talked about, or some other scenario due to the procedural quirks. We happened to come across it because this is an IGO/INGO PDP, but our solution will ultimately be robust to ALL situations where this procedural quirk exists, and inform the work of the RPM PDP that many of are also involved with as members. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/
Let me try to put this another way. Suppose that "By Law" (all underlying legal principles), someone is *entitled* to a 20 pound turkey every year for Thanksgiving from the King A procedure is adopted that in rare circumstances provides that person with nothing, instead of the 20 pound turkey. The procedure has interfered with the 20 pound turkey entitlement under the law. As a "fix", a working group created by the King proposes that in those rare circumstances, that person should instead be given 10 pounds of pork. Is the person supposed to be happy that they received "10 pounds of pork", instead of the 20 pound turkey they were entitled to? Nope, they'd be furious. The working group's solution is supposedly "better than nothing". Option A gives the person the 20 pound turkey that they're entitled to receive. It solves the problem. Option C gives the person the 10 pounds of pork. It claims to be "better than nothing", but isn't actually solving the underlying problem. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Wed, Nov 22, 2017 at 1:00 PM, George Kirikos <icann@leap.com> wrote:
Hi folks,
On Wed, Nov 22, 2017 at 12:40 PM, Corwin, Philip <pcorwin@verisign.com> wrote:
“By creating an independent arbitration process for NGOs you are (a) contradicting not one but at least two of founding principles of the UDRP.”
Personal comment: The post-judicial granting of immunity/dismissal of litigation arbitration option is being proposed for the benefit of domain registrants, not IGOs, to assure some meaningful appeal process when the judicial route is foreclosed.
That appears to be some sort of admission (finally), that the arbitration option is to the detriment of IGOs, compared to the status quo (I listed a series of questions in a separate email to get at FACTS, without direct response yet, see:
http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-November/000925.html
The problem is, the arbitration option is being proposed as a solution to a directly identifiable problem in the UDRP, i.e. "when the judicial route is foreclosed". i.e. Option C directly admits there is a problem with the UDRP itself (it's due to that reversal of plaintiff/defendant that I've written about in prior emails).
But, instead of actually fixing the problem, it creates a totally "ad hoc" solution, based on no fundamental principles whatsoever, that simply "cuts the baby in half" so to speak, as some attempt to appear to "do something" positive.
That attempt to "do something" positive doesn't go back to the first principles that Paul Keating, David Maher, and others have been repeatedly trying to point, namely that the domain name registrant is *entitled* to the judicial route. The judicial route (de novo review) was the entire "bargain" that was made when the UDRP was adopted, i.e. that it wouldn't interfere with underlying law.
Option C *perpetuates* that interference with underlying law, and REPLACES the judicial route, something registrants are entitled to, with an inferior facsimile. Option C is based on no principles whatsoever, except political concerns that fixing the actual underlying problem (i.e. Option A) would be "politcally incorrect" (i.e. cause the entire report to be rejected, etc.).
But if there is not consensus support for that option we can stick to present policy and leave them without recourse.
Leaving them without judicial recourse (i.e. maintaining the status quo, with the problem intact) represents a continuation of the problem we've identified.
But, we've identified a complete solution to the problem, namely Option A. It "flips back" the plaintiff/defendant roles to what they should have been in the first place, had the UDRP not created this procedural quirk in the law which interfered with the legal rights, where X suing Y in court is not symmetric to Y suing X in court in some circumstances.
Since we've identified the complete solution, we should adopt it. Just as we should in the related situation that I raised in the RPM PDP, which can affect the URS, UDRP and perhaps even in the PDDRP for new gTLD registry operators in some jurisdictions like the UK. There, the exact same problem arises due to "cause of action" issues when X suing Y in court is slightly different in some circumstances from Y suing X in court for the same underlying dispute.
Option A, in particular, doesn't single out IGOs at all --- when properly applied to ALL situations where X suing Y in court is slightly different that Y suing X, it doesn't really care if it's an IGO, or if it's a UK case like we've talked about, or some other scenario due to the procedural quirks. We happened to come across it because this is an IGO/INGO PDP, but our solution will ultimately be robust to ALL situations where this procedural quirk exists, and inform the work of the RPM PDP that many of are also involved with as members.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/
Phil, I am sorry but I completely disagree. The only impact the the MJ has is the fact that it creates one (1) jurisdiction in which the Complainant has agreed to litigate (and as such issues of personal jurisdiction become moot) and it creates an automatic stay without need for separate TRO or similar court order. It does not preclude a respondent from litigating the matter in any other appropriate jurisdiction. Hence any respondent may litigate, for example, in the US where a claim is recognized by statute (there are other jurisdictions as well). Further, the problem we were tasked to address was the issue of IGOs and sovereign immunity. Our conclusion, based upon facts and law, was that no problem existed because the system worked as intended and no IGO had provided evidence of preclusion as a result of 4(k) or the Mutual Jurisdiction certification. While it might be nice to address UDRP failings for the benefit of respondents that was not our mandate. That is a mandate for the UDRP review WG. I have said many times that I do not favor any changes to our initial report other than incorporating the further public comments received to the extent relevant. There simply is no evidence that any ³problem² exists. And, by the way, if there was a problem based on sovereign immunity, why stop at IGOs? What about American Indian Tribes or Countries, etc.?? When we were engaging in" what ifs² I stated my support for a rule change regarding vitiating the underlying UDRP ruling IF an IGO obtained dismissal of post-udrp litigation based on Sov. Imm. In other words, if the IGOs thought they had immunity, let them argue for it with the appropriate consequences. I am completely opposed to creating any other form of ³solution² and if pressed I would have to be honest and fall back to my initial position also stated above that UDRP policy changes are beyond our remit. We were tasked only o review IGO related issues. We concluded there were none. Paul From: "Corwin, Philip" <pcorwin@verisign.com> Date: Wednesday, November 22, 2017 at 6:40 PM To: "Maher, David" <dmaher@pir.org>, Paul Keating <paul@law.es>, "petter.rindforth@fenixlegal.eu" <petter.rindforth@fenixlegal.eu>, "icann@leap.com" <icann@leap.com> Cc: "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Subject: RE: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C
³By creating an independent arbitration process for NGOs you are (a) contradicting not one but at least two of founding principles of the UDRP.²
Personal comment: The post-judicial granting of immunity/dismissal of litigation arbitration option is being proposed for the benefit of domain registrants, not IGOs, to assure some meaningful appeal process when the judicial route is foreclosed.
But if there is not consensus support for that option we can stick to present policy and leave them without recourse.
From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of David W. Maher Sent: Wednesday, November 22, 2017 12:34 PM To: Paul Keating <Paul@law.es>; petter.rindforth@fenixlegal.eu; George Kirikos <icann@leap.com> Cc: gnso-igo-ingo-crp@icann.org Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C
+1 For additional history of the UDRP, see: http://dmaher.org/Publications/globaliz.pdf
David W. Maher Public Interest Registry Senior Vice-President Law & Policy +1 312 375 4849
From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of Paul Keating Sent: Wednesday, November 22, 2017 11:09 AM To: petter.rindforth@fenixlegal.eu; George Kirikos <icann@leap.com> Cc: gnso-igo-ingo-crp@icann.org Subject: Re: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C Importance: High
Peter,
I do wish to point out that the UDRP was not intended to create rights that did not exist prior to the UDRP. This is in the founding WIPO report that was adopted by ICANN with a great deal of grandeur. The 1999 Report also stated as a foundational position that respondents were to retain their day in court.
NGOs existed prior to the UDRP. Prior to the UDRP the only means by which they could enforce rights as against a domain name registrant was to commence litigation (either directly or indirectly via a stalking horse/assignee, etc). Pre-UDRP there was no basis for forcing the respondent into any form of arbitration.
The UDRP was thoughtfully created to grant the right to litigate de novo. The Policy references such litigation in several places and the consent to Mutual Jurisdiction is expressly limited to the dispute concerning the domain name. From this several sound legal principles have arisen.
1. Policy 4(k) does not itself create an independent right of action. A losing respondent must still find a statutory basis upon which to rest its claim. This has been recognized in virtually all post-UDRP cases including those in the UK (note the Yoyo decision among others).
2. The Mutual Jurisdiction certification does not extend beyond the reversal of the UDRP decision. The certification does not itself grant personal jurisdiction over the Complainant (now defendant) for any other form of claim. This precludes the awarding of monetary damages other than costs unless there is an independent claim to base it upon or the court has personal jurisdiction over the Complainant/defendant independently of the MJ certification.
By creating an independent arbitration process for NGOs you are (a) contradicting not one but at least two of founding principles of the UDRP.
With all respect, I have yet to see any argument in favor of the positions currently being promoted by the Chairs other than (a) the Board/GAC/IGOs want it that way.
And, now that George has surfaced an actual study comparing tech costs of arbitration to traditional litigation, there seems absolutely no credible reason to continue to support the private arbitration suggestions.
I invite ANYONE to provide evidence to the contrary. And by evidence I mean that not assumptions or beliefs but facts.
Thank you,
Sincerely,
Paul Raynor Keating, Esq.
Law.es <http://law.es/>
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From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org> on behalf of Petter Rindforth <petter.rindforth@fenixlegal.eu> Reply-To: <petter.rindforth@fenixlegal.eu> Date: Saturday, November 18, 2017 at 12:22 AM To: George Kirikos <icann@leap.com> Cc: "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C
Dear George,
I think you have made it continuously clear that you are in favour of Option A. And, as a WG member, you are of course free to explain why you voted for Option A.
However, the fact is that we not just only have a clear majority support for Option C (9 supports and 2 that can live with it), compared to Option A (5 supports and 1 that can live with it), it is also clear that there is a majority against Option A (8 does not support), compared to Option C (3 does not support).
This is not just Philip¹s and mine arguments, it is the pure fact.
I can fully understand that, as in all voting cases, it may sometimes be hard to understand why a majority has other thoughts about a specific topic.
And all WG members had (and have) their freedom to further explain and argue their support for a specific solution/option. As you say George, sometimes a support for one specified option needs more detailed explanation, where other options may be more clear, "fair and balanced".
As to Option 6: As you may recall, you have made the presentation during our WG meetings, and we (the full WG) have discussed it. As you also may recall, the conclusion within our WG meetings was that not all courts would accept that, independently of what the parties have agreed upon. During last call, we invited you to - during the upcoming week provide us (the WG) with your suggestion on your proposed specific solution to be added to the current description of the arbitration option for consideration by the WG.
I therefore look forward your specific wording / suggestion on that topic.
All the best,
Petter
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Thank you
17 november 2017 20:16:33 +01:00, skrev George Kirikos <icann@leap.com>:
I think the comments within this survey are quite telling. Those who
are in favour of option A (and opposing option C) have very strong and
fully considered views, which they can explain and support with facts
and reasoning. Compare that to those expressing support for C (and
opposing A/B). They make statements like:
"Fair and balanced" (supporting C)
"DOA at Council" (opposing A)
bereft of credible reasoning.
This demonstrates that it's fear-mongering by the co-chairs and
political motivations that led some to switch from Option 1 (now
Option A) to Option C (formerly Option 2), rather than anything based
on new facts or new analysis. Given this, it explains the refusal by
the co-chairs to attach names to those who are supporting Option C --
there's no expectation of privacy here --- everyone must vote publicly
when it comes down to a final consensus call, and should have been
able to publicly explain why they supported Option C in this
preliminary survey.
In the book "Principles" by Ray Dalio that I'm reading, he writes
about how decisions at Bridgewater go through what's called
"believability-weighted decision making", see some discussion of that
at:
http://www.businessinsider.com/bridgewater-ray-dalio-legacy-2017-9
I think that is a wise approach, whereby votes that are backed by
sound logic, facts, experience, and reasoning should be weighted much
higher than votes that lack those attributes and which are instead
fear-driven and thus are not believable.
It's been said that "One man with courage makes a majority." Hopefully
it does not have to come to that.
Sincerely,
George Kirikos
416-588-0269
On Fri, Nov 17, 2017 at 1:50 PM, Mary Wong <mary.wong@icann.org> wrote:
Dear all,
As noted on the Working Group call yesterday, please find attached the
consolidated results of the informal poll that was conducted regarding
Working Group member preferences as among Options A, B and C.
Individual Working Group members especially those who provided specific
comments as part of their poll response are invited to add any relevant
background and further thoughts to this email.
Thanks and cheers
Mary
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_______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.orghttps://mm.icann.org/mailman/listinfo/gnso-igo-ing o-crp
Hello, On Wed, Nov 22, 2017 at 4:27 PM, Paul Keating <Paul@law.es> wrote:
When we were engaging in" what ifs” I stated my support for a rule change regarding vitiating the underlying UDRP ruling IF an IGO obtained dismissal of post-udrp litigation based on Sov. Imm. In other words, if the IGOs thought they had immunity, let them argue for it – with the appropriate consequences.
Yes, for those who didn't attend all the meetings, Paul Keating is correct. What is "Option 1" (or now Option A) was actually his proposal (not mine). The earliest reference I could find was on page 14 of the July 21, 2016 phone call transcript: https://community.icann.org/download/attachments/60491579/transcript%20IGO%2... Paul Keating: "But to state emphatically in a part of the UDRP policy that if there is subsequent litigation following a UDRP, in which the IGO requests and is granted or the court on its own grants immunity, then the UDRP decision itself should become a nullity. And the reason is, is because otherwise you're leaving a respondent with no ability to challenge a contractually appointed panel. The quality of which is not always very good. I mean, if you look at the statistics for post-UDRP litigation, the vast majority of them are overturned. And I think that to leave a respondent solely with the UDRP as their only means of addressing the issue and nothing else, I think that that’s patently unfair to the respondent. So I think that the proper choice is to place the decision at the level of the IGO. If they wish to proceed with the UDRP they're running the risk of waiver of their immunity claim. If they win and they subsequently argue immunity, and are granted immunity, then the UDRP decision becomes a nullity." Phil Corwin (now on page 15): "Yes, thanks for that input, Paul. Let me just ask - and I think what you put forward should be discussed by the group as we move toward report and recommendations. If that - let’ say there’s a decision, it goes against the registrant in the UDRP. Transfer is ordered. Registrant files in a court of mutual jurisdiction. IGO goes into that court and says they - we shouldn’t be here, we’re immune. Court agrees with them, would the IGO then - then the - under your scenario, the UDRP decision is also vitiated." So, initially it was being called "nullification", and I think Phil might have been the first one to use the term vitiate (which some people don't like as it's too technical). Regardless, it was Paul Keating's idea. This is consisent with the Adobe Connect Chat Room Transcript for the following week's call (July 28, 2016): http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2016-July/000552.html where we're chatting back and forth and we're using the term "nullification", I pointed out expressly that it was Paul Keating's idea: "George Kirikos:For suggestion #1 (which I don't favour; I'm in the "status quo + greater education + assignment camp), nullification should take place regardless when the court case is brough (since a court case can be brought at any time, even before the UDRP decision is rendered). George Kirikos:*brough = brought Mary Wong:Options A through D are more fully detailed in Prof Swaine's legal memo. Mary Wong:Option E brings us back to the standing issue - Phil provided a clarification last week that this, too, is an option to consider. Mary Wong:@George, but this would be a case filed by the losing respondent, right? Mary Wong:Against a UDRP decision in favor of the IGO. George Kirikos:Mary: it would be filed during the UDRP, before the panel has deemed the respondent a "loser" George Kirikos:A court case can be initiated at any time, even before the panel has made a decision. Mary Wong:Understood, but I had thought that the "nullification" point referred to vitiating the UDRP decision. George Kirikos:(that's how my company did it for the PUPA.com domain name dispute; Tucows has done the same several times, as have others) Mary Wong:Because, if there hasn't yet been a panel decision, there would not be a result to nullify. George Kirikos:Right, it would be nullified, even if the respondent didn't wait for the panel to reach a decision (i.e. they might make an adverse decision later, after the court case is brought). George Kirikos:Some panels will terminate, to defer to the courts. Some panels will still render a decision, though. George Kirikos:I didn't propose it -- Paul Keating did." Sincerely, George Kirikos 416-588-0269 http://www.leap.com/
In regard to "UDRP policy changes are beyond our remit", that is incorrect. Recommending UDRP policy changes to ensure effective use of CRP by IGOs is completely within our remit under our Charter. Indeed, our Charter empowered us to create entirely separate CRPs for the exclusive use of IGOs. But, for good reason, we declined to go that far, and our Final Report will at most contain one narrow recommendation for a UDRP policy change. Philip S. Corwin Policy Counsel VeriSign, Inc. 12061 Bluemont Way Reston, VA 20190 703-948-4648/Direct 571-342-7489/Cell "Luck is the residue of design" -- Branch Rickey From: Paul Keating [mailto:Paul@law.es] Sent: Wednesday, November 22, 2017 4:28 PM To: Corwin, Philip <pcorwin@verisign.com>; Maher, David <dmaher@pir.org>; petter.rindforth@fenixlegal.eu; icann@leap.com Cc: gnso-igo-ingo-crp@icann.org Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C Phil, I am sorry but I completely disagree. The only impact the the MJ has is the fact that it creates one (1) jurisdiction in which the Complainant has agreed to litigate (and as such issues of personal jurisdiction become moot) and it creates an automatic stay without need for separate TRO or similar court order. It does not preclude a respondent from litigating the matter in any other appropriate jurisdiction. Hence any respondent may litigate, for example, in the US where a claim is recognized by statute (there are other jurisdictions as well). Further, the problem we were tasked to address was the issue of IGOs and sovereign immunity. Our conclusion, based upon facts and law, was that no problem existed because the system worked as intended and no IGO had provided evidence of preclusion as a result of 4(k) or the Mutual Jurisdiction certification. While it might be nice to address UDRP failings for the benefit of respondents that was not our mandate. That is a mandate for the UDRP review WG. I have said many times that I do not favor any changes to our initial report other than incorporating the further public comments received to the extent relevant. There simply is no evidence that any "problem" exists. And, by the way, if there was a problem based on sovereign immunity, why stop at IGOs? What about American Indian Tribes or Countries, etc.?? When we were engaging in" what ifs" I stated my support for a rule change regarding vitiating the underlying UDRP ruling IF an IGO obtained dismissal of post-udrp litigation based on Sov. Imm. In other words, if the IGOs thought they had immunity, let them argue for it - with the appropriate consequences. I am completely opposed to creating any other form of "solution" and if pressed I would have to be honest and fall back to my initial position - also stated above - that UDRP policy changes are beyond our remit. We were tasked only o review IGO related issues. We concluded there were none. Paul From: "Corwin, Philip" <pcorwin@verisign.com<mailto:pcorwin@verisign.com>> Date: Wednesday, November 22, 2017 at 6:40 PM To: "Maher, David" <dmaher@pir.org<mailto:dmaher@pir.org>>, Paul Keating <paul@law.es<mailto:paul@law.es>>, "petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu>" <petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu>>, "icann@leap.com<mailto:icann@leap.com>" <icann@leap.com<mailto:icann@leap.com>> Cc: "gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>" <gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>> Subject: RE: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C "By creating an independent arbitration process for NGOs you are (a) contradicting not one but at least two of founding principles of the UDRP." Personal comment: The post-judicial granting of immunity/dismissal of litigation arbitration option is being proposed for the benefit of domain registrants, not IGOs, to assure some meaningful appeal process when the judicial route is foreclosed. But if there is not consensus support for that option we can stick to present policy and leave them without recourse. From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of David W. Maher Sent: Wednesday, November 22, 2017 12:34 PM To: Paul Keating <Paul@law.es<mailto:Paul@law.es>>; petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu>; George Kirikos <icann@leap.com<mailto:icann@leap.com>> Cc: gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org> Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C +1 For additional history of the UDRP, see: http://dmaher.org/Publications/globaliz.pdf David W. Maher Public Interest Registry Senior Vice-President - Law & Policy +1 312 375 4849 From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of Paul Keating Sent: Wednesday, November 22, 2017 11:09 AM To: petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu>; George Kirikos <icann@leap.com<mailto:icann@leap.com>> Cc: gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C Importance: High Peter, I do wish to point out that the UDRP was not intended to create rights that did not exist prior to the UDRP. This is in the founding WIPO report that was adopted by ICANN with a great deal of grandeur. The 1999 Report also stated as a foundational position that respondents were to retain their day in court. NGOs existed prior to the UDRP. Prior to the UDRP the only means by which they could enforce rights as against a domain name registrant was to commence litigation (either directly or indirectly via a stalking horse/assignee, etc). Pre-UDRP there was no basis for forcing the respondent into any form of arbitration. The UDRP was thoughtfully created to grant the right to litigate de novo. The Policy references such litigation in several places and the consent to Mutual Jurisdiction is expressly limited to the dispute concerning the domain name. From this several sound legal principles have arisen. 1. Policy 4(k) does not itself create an independent right of action. A losing respondent must still find a statutory basis upon which to rest its claim. This has been recognized in virtually all post-UDRP cases including those in the UK (note the Yoyo decision among others). 2. The Mutual Jurisdiction certification does not extend beyond the reversal of the UDRP decision. The certification does not itself grant personal jurisdiction over the Complainant (now defendant) for any other form of claim. This precludes the awarding of monetary damages other than costs unless there is an independent claim to base it upon or the court has personal jurisdiction over the Complainant/defendant independently of the MJ certification. By creating an independent arbitration process for NGOs you are (a) contradicting not one but at least two of founding principles of the UDRP. With all respect, I have yet to see any argument in favor of the positions currently being promoted by the Chairs - other than (a) the Board/GAC/IGOs want it that way. And, now that George has surfaced an actual study comparing tech costs of arbitration to traditional litigation, there seems absolutely no credible reason to continue to support the private arbitration suggestions. I invite ANYONE to provide evidence to the contrary. And by evidence I mean that - not assumptions or beliefs but facts. Thank you, Sincerely, Paul Raynor Keating, Esq. Law.es<http://law.es/> Tel. +34 93 368 0247 (Spain) Tel. +44.7531.400.177 (UK) Tel. +1.415.937.0846 (US) Fax. (Europe) +34 93 396 0810 Fax. (US)(415) 358.4450 Skype: Prk-Spain email: Paul@law.es<mailto:Paul@law.es> THE INFORMATION CONTAINED IN THIS E-MAIL IS CONFIDENTIAL AND MAY CONTAIN INFORMATION SUBJECT TO THE ATTORNEY/CLIENT OR WORK-PRODUCT PRIVILEGE. THE INFORMATION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED. IF YOU ARE NOT THE INTENDED RECIPIENT, NO WAIVER OF PRIVILEGE IS MADE OR INTENDED AND YOU ARE REQUESTED TO PLEASE DELETE THE EMAIL AND ANY ATTACHMENTS. Circular 230 Disclosure: To assure compliance with Treasury Department rules governing tax practice, we hereby inform you that any advice contained herein (including in any attachment) (1) was not written or intended to be used, and cannot be used, by you or any taxpayer for the purpose of avoiding any penalties that may be imposed on you or any taxpayer and (2) may not be used or referred to by you or any other person in connection with promoting, marketing or recommending to another person any transaction or matter addressed herein. NOTHING CONTAINED IN THIS EMAIL SHALL CONSTITUTE THE FORMATION OF AN ATTORNEY/CLIENT RELATIONSHIP; SUCH A RELATIONSHIP MAY BE FORMED WITH THIS FIRM AND ATTORNEY ONLY BY SEPARATE FORMAL WRITTEN ENGAGEMENT AGREEMENT, WHICH THIS IS NOT. IN THE ABSENCE OF SUCH AN AGREEMENT, NOTHING CONTAINED HEREIN SHALL CONSTITUTE LEGAL ADVICE From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org<mailto:gnso-igo-ingo-crp-bounces@icann.org>> on behalf of Petter Rindforth <petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu>> Reply-To: <petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu>> Date: Saturday, November 18, 2017 at 12:22 AM To: George Kirikos <icann@leap.com<mailto:icann@leap.com>> Cc: "gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>" <gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>> Subject: Re: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C Dear George, I think you have made it continuously clear that you are in favour of Option A. And, as a WG member, you are of course free to explain why you voted for Option A. However, the fact is that we not just only have a clear majority support for Option C (9 supports and 2 that can live with it), compared to Option A (5 supports and 1 that can live with it), it is also clear that there is a majority against Option A (8 does not support), compared to Option C (3 does not support). This is not just Philip's and mine arguments, it is the pure fact. I can fully understand that, as in all voting cases, it may sometimes be hard to understand why a majority has other thoughts about a specific topic. And all WG members had (and have) their freedom to further explain and argue their support for a specific solution/option. As you say George, sometimes a support for one specified option needs more detailed explanation, where other options may be more clear, "fair and balanced". As to Option 6: As you may recall, you have made the presentation during our WG meetings, and we (the full WG) have discussed it. As you also may recall, the conclusion within our WG meetings was that not all courts would accept that, independently of what the parties have agreed upon. During last call, we invited you to - during the upcoming week - provide us (the WG) with your suggestion on your proposed specific solution to be added to the current description of the arbitration option for consideration by the WG. I therefore look forward your specific wording / suggestion on that topic. All the best, Petter -- Petter Rindforth, LL M Fenix Legal KB Stureplan 4c, 4tr 114 35 Stockholm Sweden Fax: +46(0)8-4631010 Direct phone: +46(0)702-369360 E-mail: petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu> www.fenixlegal.eu<http://www.fenixlegal.eu> NOTICE This e-mail message is intended solely for the individual or individuals to whom it is addressed. It may contain confidential attorney-client privileged information and attorney work product. If the reader of this message is not the intended recipient, you are requested not to read, copy or distribute it or any of the information it contains. Please delete it immediately and notify us by return e-mail. Fenix Legal KB, Sweden, www.fenixlegal.eu<http://www.fenixlegal.eu> Thank you 17 november 2017 20:16:33 +01:00, skrev George Kirikos <icann@leap.com<mailto:icann@leap.com>>: I think the comments within this survey are quite telling. Those who are in favour of option A (and opposing option C) have very strong and fully considered views, which they can explain and support with facts and reasoning. Compare that to those expressing support for C (and opposing A/B). They make statements like: "Fair and balanced" (supporting C) "DOA at Council" (opposing A) bereft of credible reasoning. This demonstrates that it's fear-mongering by the co-chairs and political motivations that led some to switch from Option 1 (now Option A) to Option C (formerly Option 2), rather than anything based on new facts or new analysis. Given this, it explains the refusal by the co-chairs to attach names to those who are supporting Option C -- there's no expectation of privacy here --- everyone must vote publicly when it comes down to a final consensus call, and should have been able to publicly explain why they supported Option C in this preliminary survey. In the book "Principles" by Ray Dalio that I'm reading, he writes about how decisions at Bridgewater go through what's called "believability-weighted decision making", see some discussion of that at: http://www.businessinsider.com/bridgewater-ray-dalio-legacy-2017-9 I think that is a wise approach, whereby votes that are backed by sound logic, facts, experience, and reasoning should be weighted much higher than votes that lack those attributes and which are instead fear-driven and thus are not believable. It's been said that "One man with courage makes a majority." Hopefully it does not have to come to that. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Fri, Nov 17, 2017 at 1:50 PM, Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> wrote: Dear all, As noted on the Working Group call yesterday, please find attached the consolidated results of the informal poll that was conducted regarding Working Group member preferences as among Options A, B and C. Individual Working Group members - especially those who provided specific comments as part of their poll response - are invited to add any relevant background and further thoughts to this email. Thanks and cheers Mary _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org<mailto:Gnso-igo-ingo-crp@icann.org> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org<mailto:Gnso-igo-ingo-crp@icann.org> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org<mailto:Gnso-igo-ingo-crp@icann.org>https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
Dear Philip, +1 (strongly agree and also recommend UDRP changes, incorporating IGO & INGO matters especially addressing immunity or waiver. If succeeded in getting updated version of UDRP, our recent policy making will be different, and most probably disputes could be handled or solved earlier). Regards Imran Ahmed Shah On Tue, November 28, 2017 10:17 pm, Corwin, Philip via Gnso-igo-ingo-crp wrote:
In regard to "UDRP policy changes are beyond our remit", that is incorrect.
Recommending UDRP policy changes to ensure effective use of CRP by IGOs is completely within our remit under our Charter. Indeed, our Charter empowered us to create entirely separate CRPs for the exclusive use of IGOs.
But, for good reason, we declined to go that far, and our Final Report will at most contain one narrow recommendation for a UDRP policy change.
Philip S. Corwin
Policy Counsel
VeriSign, Inc.
12061 Bluemont Way Reston, VA 20190
703-948-4648/Direct
571-342-7489/Cell
"Luck is the residue of design" -- Branch Rickey
From: Paul Keating [mailto:Paul@law.es] Sent: Wednesday, November 22, 2017 4:28 PM To: Corwin, Philip <pcorwin@verisign.com>; Maher, David <dmaher@pir.org>; petter.rindforth@fenixlegal.eu; icann@leap.com Cc: gnso-igo-ingo-crp@icann.org Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C
Phil,
I am sorry but I completely disagree. The only impact the the MJ has is the fact that it creates one (1) jurisdiction in which the Complainant has agreed to litigate (and as such issues of personal jurisdiction become moot) and it creates an automatic stay without need for separate TRO or similar court order. It does not preclude a respondent from litigating the matter in any other appropriate jurisdiction. Hence any respondent may litigate, for example, in the US where a claim is recognized by statute (there are other jurisdictions as well).
Further, the problem we were tasked to address was the issue of IGOs and sovereign immunity. Our conclusion, based upon facts and law, was that no problem existed because the system worked as intended and no IGO had provided evidence of preclusion as a result of 4(k) or the Mutual Jurisdiction certification. While it might be nice to address UDRP failings for the benefit of respondents that was not our mandate. That is a mandate for the UDRP review WG.
I have said many times that I do not favor any changes to our initial report other than incorporating the further public comments received to the extent relevant.
There simply is no evidence that any "problem" exists. And, by the way, if there was a problem based on sovereign immunity, why stop at IGOs? What about American Indian Tribes or Countries, etc.??
When we were engaging in" what ifs" I stated my support for a rule change regarding vitiating the underlying UDRP ruling IF an IGO obtained dismissal of post-udrp litigation based on Sov. Imm. In other words, if the IGOs thought they had immunity, let them argue for it - with the appropriate consequences.
I am completely opposed to creating any other form of "solution" and if pressed I would have to be honest and fall back to my initial position - also stated above - that UDRP policy changes are beyond our remit. We were tasked only o review IGO related issues. We concluded there were none.
Paul
From: "Corwin, Philip" <pcorwin@verisign.com<mailto:pcorwin@verisign.com>> Date: Wednesday, November 22, 2017 at 6:40 PM To: "Maher, David" <dmaher@pir.org<mailto:dmaher@pir.org>>, Paul Keating <paul@law.es<mailto:paul@law.es>>, "petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu>" <petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu>>, "icann@leap.com<mailto:icann@leap.com>" <icann@leap.com<mailto:icann@leap.com>> Cc: "gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>" <gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>> Subject: RE: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C
"By creating an independent arbitration process for NGOs you are (a) contradicting not one but at least two of founding principles of the UDRP."
Personal comment: The post-judicial granting of immunity/dismissal of litigation arbitration option is being proposed for the benefit of domain registrants, not IGOs, to assure some meaningful appeal process when the judicial route is foreclosed.
But if there is not consensus support for that option we can stick to present policy and leave them without recourse.
From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of David W. Maher Sent: Wednesday, November 22, 2017 12:34 PM To: Paul Keating <Paul@law.es<mailto:Paul@law.es>>; petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu>; George Kirikos <icann@leap.com<mailto:icann@leap.com>> Cc: gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org> Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C
+1
For additional history of the UDRP, see:
http://dmaher.org/Publications/globaliz.pdf
David W. Maher
Public Interest Registry
Senior Vice-President - Law & Policy
+1 312 375 4849
From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of Paul Keating Sent: Wednesday, November 22, 2017 11:09 AM To: petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu>; George Kirikos <icann@leap.com<mailto:icann@leap.com>> Cc: gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C Importance: High
Peter,
I do wish to point out that the UDRP was not intended to create rights that did not exist prior to the UDRP. This is in the founding WIPO report that was adopted by ICANN with a great deal of grandeur. The 1999 Report also stated as a foundational position that respondents were to retain their day in court.
NGOs existed prior to the UDRP. Prior to the UDRP the only means by which they could enforce rights as against a domain name registrant was to commence litigation (either directly or indirectly via a stalking horse/assignee, etc). Pre-UDRP there was no basis for forcing the respondent into any form of arbitration.
The UDRP was thoughtfully created to grant the right to litigate de novo. The Policy references such litigation in several places and the consent to Mutual Jurisdiction is expressly limited to the dispute concerning the domain name. From this several sound legal principles have arisen.
1. Policy 4(k) does not itself create an independent right of action. A losing respondent must still find a statutory basis upon which to rest its claim. This has been recognized in virtually all post-UDRP cases including those in the UK (note the Yoyo decision among others).
2. The Mutual Jurisdiction certification does not extend beyond the reversal of the UDRP decision. The certification does not itself grant personal jurisdiction over the Complainant (now defendant) for any other form of claim. This precludes the awarding of monetary damages other than costs unless there is an independent claim to base it upon or the court has personal jurisdiction over the Complainant/defendant independently of the MJ certification.
By creating an independent arbitration process for NGOs you are (a) contradicting not one but at least two of founding principles of the UDRP.
With all respect, I have yet to see any argument in favor of the positions currently being promoted by the Chairs - other than (a) the Board/GAC/IGOs want it that way.
And, now that George has surfaced an actual study comparing tech costs of arbitration to traditional litigation, there seems absolutely no credible reason to continue to support the private arbitration suggestions.
I invite ANYONE to provide evidence to the contrary. And by evidence I mean that - not assumptions or beliefs but facts.
Thank you,
Sincerely,
Paul Raynor Keating, Esq.
Law.es<http://law.es/>
Tel. +34 93 368 0247 (Spain)
Tel. +44.7531.400.177 (UK)
Tel. +1.415.937.0846 (US)
Fax. (Europe) +34 93 396 0810
Fax. (US)(415) 358.4450
Skype: Prk-Spain
email: Paul@law.es<mailto:Paul@law.es>
THE INFORMATION CONTAINED IN THIS E-MAIL IS CONFIDENTIAL AND MAY CONTAIN INFORMATION SUBJECT TO THE ATTORNEY/CLIENT OR WORK-PRODUCT PRIVILEGE. THE INFORMATION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED. IF YOU ARE NOT THE INTENDED RECIPIENT, NO WAIVER OF PRIVILEGE IS MADE OR INTENDED AND YOU ARE REQUESTED TO PLEASE DELETE THE EMAIL AND ANY ATTACHMENTS.
Circular 230 Disclosure: To assure compliance with Treasury Department rules governing tax practice, we hereby inform you that any advice contained herein (including in any attachment) (1) was not written or intended to be used, and cannot be used, by you or any taxpayer for the purpose of avoiding any penalties that may be imposed on you or any taxpayer and (2) may not be used or referred to by you or any other person in connection with promoting, marketing or recommending to another person any transaction or matter addressed herein.
NOTHING CONTAINED IN THIS EMAIL SHALL CONSTITUTE THE FORMATION OF AN ATTORNEY/CLIENT RELATIONSHIP; SUCH A RELATIONSHIP MAY BE FORMED WITH THIS FIRM AND ATTORNEY ONLY BY SEPARATE FORMAL WRITTEN ENGAGEMENT AGREEMENT, WHICH THIS IS NOT. IN THE ABSENCE OF SUCH AN AGREEMENT, NOTHING CONTAINED HEREIN SHALL CONSTITUTE LEGAL ADVICE
From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org<mailto:gnso-igo-ingo-crp-bounces@ica nn.org>> on behalf of Petter Rindforth <petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu>> Reply-To: <petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu>> Date: Saturday, November 18, 2017 at 12:22 AM To: George Kirikos <icann@leap.com<mailto:icann@leap.com>> Cc: "gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>" <gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>> Subject: Re: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C
Dear George,
I think you have made it continuously clear that you are in favour of Option A. And, as a WG member, you are of course free to explain why you voted for Option A.
However, the fact is that we not just only have a clear majority support for Option C (9 supports and 2 that can live with it), compared to Option A (5 supports and 1 that can live with it), it is also clear that there is a majority against Option A (8 does not support), compared to Option C (3 does not support).
This is not just Philip's and mine arguments, it is the pure fact.
I can fully understand that, as in all voting cases, it may sometimes be hard to understand why a majority has other thoughts about a specific topic.
And all WG members had (and have) their freedom to further explain and argue their support for a specific solution/option. As you say George, sometimes a support for one specified option needs more detailed explanation, where other options may be more clear, "fair and balanced".
As to Option 6: As you may recall, you have made the presentation during our WG meetings, and we (the full WG) have discussed it. As you also may recall, the conclusion within our WG meetings was that not all courts would accept that, independently of what the parties have agreed upon. During last call, we invited you to - during the upcoming week - provide us (the WG) with your suggestion on your proposed specific solution to be added to the current description of the arbitration option for consideration by the WG.
I therefore look forward your specific wording / suggestion on that topic.
All the best,
Petter
--
Petter Rindforth, LL M
Fenix Legal KB
Stureplan 4c, 4tr
114 35 Stockholm
Sweden
Fax: +46(0)8-4631010
Direct phone: +46(0)702-369360
E-mail: petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu>
www.fenixlegal.eu<http://www.fenixlegal.eu>
NOTICE
This e-mail message is intended solely for the individual or individuals to whom it is addressed. It may contain confidential attorney-client privileged information and attorney work product. If the reader of this message is not the intended recipient, you are requested not to read, copy or distribute it or any of the information it contains. Please delete it immediately and notify us by return e-mail.
Fenix Legal KB, Sweden, www.fenixlegal.eu<http://www.fenixlegal.eu>
Thank you
17 november 2017 20:16:33 +01:00, skrev George Kirikos <icann@leap.com<mailto:icann@leap.com>>:
I think the comments within this survey are quite telling. Those who
are in favour of option A (and opposing option C) have very strong and
fully considered views, which they can explain and support with facts
and reasoning. Compare that to those expressing support for C (and
opposing A/B). They make statements like:
"Fair and balanced" (supporting C)
"DOA at Council" (opposing A)
bereft of credible reasoning.
This demonstrates that it's fear-mongering by the co-chairs and
political motivations that led some to switch from Option 1 (now
Option A) to Option C (formerly Option 2), rather than anything based
on new facts or new analysis. Given this, it explains the refusal by
the co-chairs to attach names to those who are supporting Option C --
there's no expectation of privacy here --- everyone must vote publicly
when it comes down to a final consensus call, and should have been
able to publicly explain why they supported Option C in this
preliminary survey.
In the book "Principles" by Ray Dalio that I'm reading, he writes
about how decisions at Bridgewater go through what's called
"believability-weighted decision making", see some discussion of that
at:
http://www.businessinsider.com/bridgewater-ray-dalio-legacy-2017-9
I think that is a wise approach, whereby votes that are backed by
sound logic, facts, experience, and reasoning should be weighted much
higher than votes that lack those attributes and which are instead
fear-driven and thus are not believable.
It's been said that "One man with courage makes a majority." Hopefully
it does not have to come to that.
Sincerely,
George Kirikos
416-588-0269
On Fri, Nov 17, 2017 at 1:50 PM, Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> wrote:
Dear all,
As noted on the Working Group call yesterday, please find attached the
consolidated results of the informal poll that was conducted regarding
Working Group member preferences as among Options A, B and C.
Individual Working Group members - especially those who provided specific
comments as part of their poll response - are invited to add any relevant
background and further thoughts to this email.
Thanks and cheers
Mary
_______________________________________________
Gnso-igo-ingo-crp mailing list
Gnso-igo-ingo-crp@icann.org<mailto:Gnso-igo-ingo-crp@icann.org>
https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
_______________________________________________
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Gnso-igo-ingo-crp@icann.org<mailto:Gnso-igo-ingo-crp@icann.org>
https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
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_______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
participants (7)
-
Corwin, Philip -
David W. Maher -
George Kirikos -
Imran Ahmed Shah -
Mary Wong -
Paul Keating -
Petter Rindforth