Thank you for these comments Nigel.

I was not aware of any requirements regarding the format. To my knowledge, .doc/x is as open as .pdf and both are supported by third party applications beyond those (MS Word and Acrobat) of the original publisher. As for vulnerabilities of either format, I must say I do not have particular knowledge on that issue. That being said, I think submitting cases in an easily editable format has its advantages when working collaboratively, but I can certainly submit a pdf along the .doc/x, or eventually only the pdf is that is what is agreed upon.

As for the doctrines used, I did not spend a lot of time evaluating the validity and strength of the legal arguments presented by the counsel for EmployMedia; I merely relayed the fact that this counsel claimed that the governing law for the contract was either Ohio or California contract law.

The main issue regarding jurisdiction which I raised in my submission and highlighted at the call yesterday is the fact that there is no choice of law in registry agreements and that these registry agreements have an arbitration clause. This combination makes it difficult to determine in advance with reasonable certainty which law governs the contract, even more so than if the dispute was to be settled in court, because courts are bound by choice of law rules, and (usually) not arbitration panels. This has an effect, in turn, on legal certainty and risk assessment of the parties. I presume that ICANN has a good reason for such a choice, and a question will be drafted by Jorge and submitted to ICANN legal.

As such, I am not sure to understand your suggestion that "anyone who wishes to rely on estoppel should file in court, not IRP" or that "all this is a thin gruel on which to base a discussion of jurisdictional principle;" if you mean that the facts of the case are not really relevant as far as jurisdictional issues this SWG is concerned with, then yes I do agree. I provided the additional info on the settlement simply because some participants requested it (Milton, I recall, and someone else I think.)

Best,

2017-04-19 8:30 GMT+02:00 Nigel Roberts <nigel@channelisles.net>:

I'd like to make the following submissions.

1. Non-proprietary formats

Not everyone uses Microsoft Windows. I would request that ICANN and the community respect this, by please avoid proprietary formats such as .DOC or .DOCX in favour of standard formats such as PDF. Furthermore .DOC/DOCX are a security risk as they are susceptible to macroviruses.

2. On the content, it is important to note that the claims of estoppel and/or laches (which were not adjudicated in this case) do not form part of contract law.

In fact they are not legal doctrines at all in the strict sense of the meaning he words 'law' and 'legal' in common-law jurisdictions. They are part of Equity, which although in most places (I think Virginia was the last) are adjudicated in the same courts, is a separate system of law, deriving from medieval religious law.

So far, so irrelevant.

But what is very definitely not irrelevant is that equitable rules are not enforceable in the same way as legal rules.

They are discretionary.

I cam across this quote from Hegel

“Equity involves a departure from formal rights owing to moral or other considerations and is concerned primarily with the content of the lawsuit. A court of equity, however, comes to mean a court which decides in a single case without insisting on the formalities if a legal process or, in particular, on the objective evidence which the letter of the law may require. Further, it decides on the merits of the single case as a unique one, not with a view to disposing of it in such a way as to create a binding legal precedent for the future."

Of course 'discretion' does not mean freedom to act arbitrarily. But what does this mean for jurisdiction?

There has been much discussion in the UDRP process about whether estoppel in particular can be relied upon. Whilst much of this is inconclusive, I would suggest that anyone who wishes to rely on estoppel should file in court, not IRP.

And finally, this discussion is on a Claim of equitable principles in an IRP which was not found necessary to be decided upon.

It's a thin gruel on which to base a discussion of jurisidictional principle in my view.

On 18/04/17 21:54, Raphaël BEAUREGARD-LACROIX wrote:

As a follow up from the call, and to answer the question raised by some
regarding the settlement of the case:

As a reminder on the facts of the dispute,It was claimed by ICANN that
certain .jobs registrants did not comply with the requirements set out in
the registry charter and that Employ Media, the registry, has proceeded
with a unilateral broadening of the charter. Boiling it down, the dispute
focused on how to interpret the list of requirements set out in the
charter, as they were not all factually mutually exclusive (it was
eventually possible to imply the satisfaction of some requirements from the
satisfaction of some others)

ICANN and Employ Media settled on the basis of representations made by the
sponsor of .jobs (the Society for Human Rights Management), to the effect
that, among others, it would ensure that registrants provide the necessary
representations with regards to their own compliance with the requirements
of the charter. The letter provided by SHRM states that it believes all
currently registered names comply with the charter.

In that sense, it would be difficult to determine a clear winner in this
case, while ICANN did not "back off," no names had to be deregistered as a
result of the settlement. In a way, the sponsor seems to have stepped in
and vouched for the actions of Employ Media.

I have amended the case report with this information. The new version is
attached here.

Best,

2017-04-18 8:22 GMT+02:00 Greg Shatan <gregshatanipc@gmail.com>:

All,

I encourage you to review this case summary as well (which alsol has now
been on our list nearly two weeks) and reply with any observations or
questions you may have.

Greg

*Greg Shatan *C: 917-816-6428
S: gsshatan
Phone-to-Skype: 646-845-9428
gregshatanipc@gmail.com

On Thu, Apr 6, 2017 at 5:33 AM, Raphaël BEAUREGARD-LACROIX <
raphael.beauregardlacroix@sciencespo.fr> wrote:

Hello everyone,

You will find attached the summary for Employ Media LLC v ICANN, an ICC
arbitration case that was ultimately settled.

Best,

--
Raphaël Beauregard-Lacroix
Sciences Po Law School 2014-2017
LinkedIn
<https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/>
- @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
<+33%207%2086%2039%2018%2015>

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Raphaël Beauregard-Lacroix

Sciences Po Law School 2014-2017

LinkedIn - @rbl0012 - M: +33 7 86 39 18 15