Dear IRT, Thank you to those who have already responded to the rationale<https://docs.google.com/document/d/1CDkX-FNmNMncwVS6VBoKL2aDnKSmOrQ-SlTKVzpt...>. We encourage further input, especially from remaining members yet to share their views, either following the structure suggested in the issuing email or in any other format that members prefer. Based on current responses, I expect to confirm a meeting date tomorrow - December 3 appears to be the preferred option and would provide more time for additional input. To support further discussion, I would like to briefly restate the purpose of the rationale and the context in which it was provided. During our meeting in Dublin, a view was expressed that the UDRP redlines would allow the new arbitral process proposed in the EPDP Final Report<https://itp.cdn.icann.org/en/files/generic-names-supporting-organization-cou...> to be initiated prior to a UDRP decision (an interpretation held to apply equally to URS proceedings). As this view had not been raised previously during our meetings - and appeared to inform the IRTs support for sending the UDRP redlines to public comment - staff considered it important to clarify the issue, confirm the extent of agreement within the IRT on this point, and ensure everyone was working from a shared understanding. So, firstly, if this was not the precise argument advanced in Dublin, we welcome any corrections. In response to some of the feedback provided so far, the rationale was not intended to argue that the new arbitral route is only available after court action, or that a losing registrant must first go to court to access it. Rather, it reflects what is contained in the current UDRP and URS redlines, which were drafted based on EPDP Recommendations 3 and 4. As drafted, these recommendations allow a registrant to elect the new arbitral process in two situations: * Within 10 days of a UDRP decision or URS appeal determination, without needing to pursue court action; or * Within 10 days of a court declining to hear a case due to IGO immunity, should the respondent choose to file in court. The rationale notes that, based on the approved policy language in the Final Report, there appears to be no procedural path to initiate arbitration outside of these two 10 day windows, described in Recommendations 3 and 4 of the Final Report as occurring after a UDRP/URS determination. However, the “10 days following a court determination” scenario can also be interpreted to apply following a court action at any point, e.g. if a registrant/respondent commenced court proceedings during an ongoing UDRP/URS process. This is what is referred to when the rationale states that the new arbitral proceeding is restricted to after “the issuance of a UDRP decision or URS Determination or a court decision declining to hear the merits of the case due to an IGO Complainant’s jurisdictional immunity”. However, we acknowledge Brian’s view in his response that the EPDP WG presumed the existence of a final UDRP/URS decision during the course of its deliberations - additional IRT input on this point would be helpful. The rationale further observes that the Final Report provides no guidance on how arbitration would function or interact with the UDRP/URS before those processes conclude, including how a “de novo” review would operate in the absence of a decision. While we recognize the opinion of some members that the WG intended the new arbitral process to be available at any time during (or even in lieu of?) the UDRP/URS process, the rationale points out that it is not clear how this could be implemented under the current approved language without creating a new trigger and associated conditions in addition to the two windows set out in Recommendations 3 and 4. It also notes potential concerns about attempting to accommodate this option based on current policy language, including whether doing so could raise questions about whether the IRT is creating policy beyond the Final Report. The intent of our email, therefore, was to invite alternative interpretations and to obtain a better understand of how a hypothetical pre-UDRP/URS decision arbitration might be grounded or possible within the existing recommendations, as well as gauging the level of agreement in the IRT for such a reading. I hope this has been helpful, Kind regards, Peter 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