Thank you, Peter for inviting IRT members to provide their feedback on the IGOs’ position that respondents not be permitted to commence arbitration prior
to UDRP decision unless IGOs consent.
I want to state at the outset, that at this late point there is a compelling interest in getting this IRT done, but I would of course like to see this done
with the full support of IGOs who are of course central to this process.
I also try to remain mindful of how likely the contingencies we are planning for are to occur. I don’t expect that we will see much in the way of IGOs going
after righteous registrations and as a result, do not anticipate Respondents in such proceedings having to often resort to arbitration or the courts.
That being said, I have three points to make in relation to the issues at hand, as I attempted to set out in last week’s call:
-
This appears to have already been decided. The Council’s Resolution states inter alia, as follows:
Resolved,
“The GNSO Council confirms that the intent of the EPDP policy recommendations was to enable the respondent to a UDRP or URS dispute to voluntarily leverage
alternative dispute resolution mechanisms at any time once the UDRP or URS proceeding has been initiated, and the policy recommendations enabling the new arbitral proceeding should not be read to limit that ability.”
Accordingly, I am very apprehensive about relitigating of this issue and am concerned about having to send this back to Council and any further delays in finalizing this IRT.
- The IGOs objective with the original policy development process was to enable them to avoid having to submit to Mutual Jurisdiction
when commencing a UDRP, due to not wanting to give up their privileges and immunities to a national court.
That has been accommodated, but the quid pro quo of that - to my understanding - was that there be an arbitration procedure available instead which would approximate
recourse to courts as best as possible.
The UDRP enables parties to go to court before, during, or after a UDRP proceeding. Accordingly, the new arbitration procedure was designed to enable recourse
to arbitration at any time as well.
However in order to truly afford a respondent genuine recourse to arbitration in a like fashion as it has to courts under the UDRP, it must be available not just
after a UDRP decision, but after a UDRP is commenced as well. And it must be mandatory, because otherwise IGOs could simply decline arbitration post commencement.
- It seems undesirable to force a Respondent to wait out a UDRP when it has indicated that it wants to arbitrate – both from the perspective
of IGOs and for Respondents. It just delays things and runs up costs.
It also seems against IGO interests to prevent a Respondent from going to arbitration prior to a UDRP decision. Such an approach could compel a Respondent to try its
luck in court despite no submission to mutual jurisdiction, at substantial expense and headache to both IGOs and Respondents.
Moreover, a Respondent intent on arbitration, would wait out the UDRP proceeding only to go to arbitration de novo afterwards. This would be inefficient for IGOs since
inevitably they would end up in arbitration even though they had prevented it from occurring earlier on.
Additional Possible Solutions
There is however, a potential way of further accommodating IGOs here - even though I believe that this has already been decided, as I stated above.
If the IGOs’ concern is ‘not wanting to have to undergo contemporaneous proceedings’ (a UDRP plus a contemporaneous arbitration, if the arbitration is post-Commencement of the UDRP),
then perhaps we can explore the mandatory termination of a pending UDRP upon commencement of an arbitration. Failing that or another solution, I support Option 1, i.e. “that
the UDRP and URS documentation would include narrowly scoped provisions addressing pre- determination use of the new Arbitral Proceeding, as reflected in the current drafts.”
If however, IGOs are concerned about the current drafting for a different reason that I have not considered here, I would like to hear it so that an appropriate accommodation can perhaps
be reached.
Regarding Staff’s
“Additional Proposal” (below), I would be willing to consider this as well. I think it is a creative solution, however I would be concerned that IGOs would needlessly cause UDRP costs to be incurred (for themselves and possibly for Respondents) when
they end up at arbitration afterwards anyhow, so it seems there are some practicality and efficiency issues to consider.
Zak Muscovitch
General Counsel, ICA
Exactly right, Chris - 15 APRIL everyone. My mistake!
Please submit your responses as soon as possible, by Wednesday 15 May.
Presumably you mean April...
Senior Advisor on Policy and Internet Governance
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I wish to bring two items to your attention:
Item 1: Request for Input
As I requested at the end of the call, to best help staff progress this project we would like all IRT members, including those who spoke on yesterday’s
call, to submit answers to the following questions on the email list. Feel free to include additional thoughts/information that you feel may be useful.
When submitting your response, it would helpful if you set out your argument supported by reference to the underlying principles and logic on which
it is based. Clarifying the ‘why’ behind your position – e.g. policy interpretation concerns, practical impacts/problems - will make it easier for staff to identify where views algin or differ:
-
Do you believe the IRT is resolving a policy disagreement (e.g. how to interpret the Final Report/WG intent) or an implementation disagreement (how to address the pre-determination
use of the new arbitral mechanism in the UDRP Rules or elsewhere)?
-
Should the EPDP developed arbitral
mechanism be available for
use before a UDRP or URS determination?
Please explain why you disagree with the alternative point of view (whether for or against pre-determination availability)
-
What do you believe are the practical differences, if any, between potential use of the EPDP arbitral mechanism and
general arbitration in a pre UDRP or URS determination context? If parties already have the right to arbitrate privately at any time, what are the benefits/objections to allowing this via the EPDP arbitral mechanism?
-
Why is it important that pre-determination use of the EPDP developed arbitral
mechanism be addressed/not be addressed by ICANN? If it should/can be addressed, how/where should this be accomplished?
-
Do you consider any of the 4 options advanced by ICANN in the options
paper [docs.google.com]as offering, or forming the basis of, a path forward on this issue?
Please submit your responses as soon as possible, by Wednesday 15 May.
Item 2: Additional Proposal regarding IGO Consent to Arbitration
On yesterday’s call, an IGO representative noted that one of the main concerns with allowing pre-determination use of the EPDP arbitral process was
that, under the EPDP recommendations, by filing a UDRP, IGOs must consent to arbitration as a challenge to a UDRP/URS decision. However, IGOs object to being required to consent to a ‘parallel’ arbitration that takes place before a UDRP/URS decision has been
reached, as is the case in the most recent draft updates .
Following internal discussions, staff would like to put the following proposal to the IGOs/wider IRT for your consideration as a possible compromise:
-
The new Arbitral Proceeding exists and can be filed by a registrant at any time after a UDRP/URS is filed.
-
However, an IGO is not required to consent to resolution via arbitral proceeding until after a UDRP/URS decision is issued.
-
A Registrant can elect arbitration once a complaint is filed, and the IGO at that time can decide whether to agree to consent to arbitration or not.
-
In this scenario, there is no direct impact to the UDRP or URS proceeding unless the parties elect to terminate the proceeding
We are interested to hear your thoughts on this proposal as soon as possible.
Policy Research Specialist, Policy Research & Stakeholder Programs
Internet Corporation for Assigned Names and Numbers (ICANN)
Office: 6 Rond Point Schuman, Bt. 1, Brussels B-1040, Belgium
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