Peter and IRT,

I am highly disappointed in the overly formalistic approach ICANN policy staff has taken to review the discussions we had on this topic rather than taking a step back and thinking about what is best for the IGOs and the Registrants.  This is especially the case when both Brian (from WIPO) and I agreed on how this should be read. 

I want to tackle the first issue, which I believe, points out the futility of ICANN's interpretation.  This involves whether a registrant must first go to court prior to going to arbitration.  The Policy WG spent dozens of hours (at least) discussing the ramifications of removing the mutual jurisdiction provisions in the UDRP/URS Policy/Rules.  The most obvious result that most of the policy WG agreed upon, was that without this clause, IGOs would exercise their sovereign immunity, and most courts (at least in the US) would dismiss the case without ever getting to the merits.  Yes, a few of the members of the WG did want the ability to test that out and try their luck in court anyway.  I recall making statements in the Policy WG, that this would only be tried a couple of times, and once a court or multiple courts rule that the IGOs have sovereign immunity, everyone would elect to go directly to arbitration. 

By introducing a requirement to have to go to court, ICANN would be requiring registrants who have first lost the UDRP/URS action to:
A)  File a case in a court it believes MAY have jurisdiction;
B)  Make arguments as to why sovereign immunity should not apply (knowing it is likely to lose)
C)  And, as we all believe, the registrant will likely lose (having wasted tens of thousands of dollars); The IGO will have also had to spent thousands of dollars to assert sovereign immunity.  
D)  Then and only then can the registrant seek redress on the merits by filing an arbitration.

This is fundamentally unfair and certainly was not what the Policy WG intended.  And taking a step back, it makes no sense.   It is incorrect to interpret the policy WG's recommendation in any other manner.   Sure, the Policy WG left the option open for registrants to go to court, but the PDP WG never meant to make that mandatory.

If we have to go to the Council to explain our rationale, I am very comfortable they would agree. 

Sincerely,

Jeff 

On Mon, Nov 17, 2025 at 5:27 AM Peter Eakin via Igo-ingo-curative-rights-irt <igo-ingo-curative-rights-irt@icann.org> wrote:

Dear IGO Curative Rights IRT,

 

I hope everyone enjoyed a productive ICANN84, whether attending in person or remotely.

 

During our IRT discussion in Dublin, we left off with a question on whether a URS or court determination is required before a registrant may elect to utilize the new arbitral proceeding we are implementing pursuant to the EPDP curative rights recommendations. While this discussion arose in the context of the URS and URS Rules redlines under review by the IRT, the question also exists in the draft updates to the UDRP and UDRP Rules.

 

The approach taken in both the UDRP and URS redlines shared with the IRT to-date is that a registrant may only pursue this new arbitral proceeding after one of the following two triggering events: (a) the issuance of a UDRP or URS determination, or (b) a court decision declining to exercise jurisdiction over an IGO complainant.

 

ICANN org understands the view expressed by some IRT members in Dublin to be that this new arbitral proceeding should ideally be available to the registrant at any point after a URS or UDRP complaint is filed. The discussion in Dublin appeared to surface a difference of approach between the URS and UDRP redlines shared with the IRT to-date and that expressed by at least a portion of IRT members.  

 

Following ICANN84, we need to determine whether the IRT as a whole disagrees with ICANN org’s interpretation of the text of the recommendations on this matter so that we can determine our path forward. To this end, we share attached a written rationale for the staff interpretation to-date, and request the IRT’s written feedback on the following questions no later than 24 November. We understand that this is a short requested turnaround time, but are requesting your feedback by this date so that we can determine how to move forward expediently and minimize impacts to our implementation timeline.  As you are aware, full implementation of these policy recommendations is currently planned for Q2 2026 and serves as a dependency for the release of IGO acronyms currently withheld from registration, as well as the launch of a post-registration notification system for IGOs, both scheduled for completion in Q3 2026.

 

Questions for IRT Members

  1. As an IRT member, do you believe that the UDRP, UDRP Rules, URS, and URS Rules redlines (hereinafter, “the redlines”) shared with the IRT accurately reflect the policy recommendations in the Final Report with respect to the “triggers for arbitral proceeding” issue? Please see the attached rationale for the approach taken in the redlines.
  2. If not, why do you disagree with this interpretation?
  3. If you disagree with the approach taken in the redlines, in your view, does your position align with or differ from the consensus of the IRT? 

We note that the IRT has been convened to assist staff in developing the implementation details for the policy to ensure that the implementation conforms to the intent of the policy recommendations (see IRT principles and guidelines). In the event of a disagreement between the IRT and staff regarding the proposed implementation approach, we will strive to resolve the disagreement. If the disagreement cannot be reconciled, the GNSO Council liaison, in consultation with the IRT, is expected to make an assessment as to the level of consensus within the IRT on whether to raise the issue with the GNSO Council for consideration.

 

Next Steps

 

Due to the issue raised in Dublin, we believe it would be premature to proceed to public comment in November as envisioned in our work plan. 

 

Please share your thoughts on the questions above on-list by Monday, 24 November. Mindful of the upcoming US holiday period, we have provisionally identified two dates for an IRT meeting, one in the week of 24 November, another in the week of 1 December - please complete the doodle poll issued by Renate earlier to indicate your availability. We will select the date most convenient for the group. We will also endeavour to schedule an additional meeting before the Christmas break if needed.

 

As ever, happy to discuss.

 

Best,


Peter

 

(see attached, Rationale for Approach Taken in Draft Redlines):

Google link: https://docs.google.com/document/d/1CDkX-FNmNMncwVS6VBoKL2aDnKSmOrQ-SlTKVzptrZg/edit?tab=t.0
MS Word version – attached to email

 

Peter Eakin

Policy Research Specialist, Policy Research & Stakeholder Programs

Internet Corporation for Assigned Names and Numbers (ICANN)

Tel: + 32 493 547 913

Office: 6 Rond Point Schuman, Bt. 1, Brussels B-1040, Belgium

 

 

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