Further to the call of today and as requested in the call by Peter, these are my thoughts on the issue of arbitration following commencement of a UDRP by an IGO.

1. It is in the interests of both IGOs and Respondents to have an available pathway to arbitration instead of court.

2. This is the intent of the Recommendations according to those that were in the EPDP.

3. This intent is embodied in the Recommendation #2(b)(ii) in the Final Report, which states:

“that the respondent has the option to agree to binding arbitration to settle the dispute at any time, including in lieu of initiating court proceedings or, if it files a claim in court, where the court has declined to hear the merits of the case.”

4. There is no way around this Recommendation. It is clear that the intent - at least in this specific Recommendation -  is to permit arbitration to occur immediately after filing a UDRP by an IGO who is not submitting to the Mutual Jurisdiction of a national court. This Recommendation envisions that in every IGO initiated UDRP Complaint, the Respondent will be given the option of going to arbitration immediately.

5. As the Staff Memo points out however, the above Recommendation 2(b)(iii) “appears after Recommendation 2b(ii), which refers to a court action challenging a UDRP/URS decision. Reading this in context, we read this language as providing an alternative after the court challenge referenced in 2b(ii), not a path before a UDRP/URS determination occurs.” I do not see this. Recommendation 2(b)(ii) states:

“The EPDP team recommends that, when forwarding a complaint filed by an IGO Complainant to the respondent (pursuant to Paragraph 2(a) of the UDRP or Paragraph 4.2 of the URS, as applicable), the relevant UDRP or URS provider must also include a notice informing the respondent; 

…

(ii) that, in the event the respondent chooses to initiate court proceedings, the IGO Complainant may assert its privileges and immunities with the result that the court may decline to hear the merits of the case on the basis of IGO privileges and immunities; and 

This is quite correct of course. An IGO can assert its privileges and immunities in the event that a Respondent elects to go to court following the commencement of a UDRP. But it does not negate the other option, which is clearly presented in subsection (iii), namely that;

“(iii) that the respondent has the option to agree to binding arbitration to settle the dispute at any time, including in lieu of initiating court proceedings or, if it files a claim in court, where the court has declined to hear the merits of the case.”

6. Now, the Staff Memo points out that “The Final Report provides no guidance on how this new arbitral proceeding would affect or interact with the current UDRP/URS process if this proceeding was intended to be made available prior to a UDRP/URS decision.” As the Staff Memo suggests, there are no provisions in the Final Report that set out “how the filing of an arbitral proceeding should impact the status of an ongoing UDRP/URS proceeding”. If both parties are agreeing to arbitration under subsection (iii), then the UDRP is administratively dismissed either by the Provider or the Panel. This is a fairly easy gap to fill.

7. The Staff Memo also points out the concern that the reference to “at any time” [in subjection (iii)] could be read even more broadly to mean that a UDRP or URS proceeding would not even have to be initiated in order for a registrant to initiate an arbitral proceeding, which also does not appear to be contemplated in the Final Report. I do not think that this is a possibility. The only contractual agreement giving rise to access to arbitration exists in the filing of the Complaint itself where the Complainant offers to go to arbitration if elected by the Respondent. Without the initiation of a Complaint, there is no contractual basis to submit to arbitration by the Complainant.

8. Nevertheless, even if there are some areas of the Final Report which could be interpreted as inconsistent with access to arbitration immediately after filing a UDRP Complaint, the fact remains that there is a basis, as outlined above at least in part, to interpret it permissively in favour of access to arbitration immediately upon filing. Given this, it is likely in my view that a reasonable GNSO Council would understand and approve of this IRT proceeding in a manner which is consistent with the original intent of the EPDP and in the spirit of the overarching principle of fashioning a UDRP regime for IGO’s that mirrors the original one as closely as possible.

9. In any event, if the IRT members want to proceed as per above, we will need to lend a hand to Staff to hammer out the areas where they have shown gaps and do so quickly.

Yours truly,

Zak

Dear All, 

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