RE: [council] IPC Proposed Revised IGO DRP

["Mike Rodenbaugh" <mxrodenbaugh@xxxxxxxxx>]

Personally, I also do not support substantively expanding the UDRP in any
way for NGOs, they should have to meet the same 3-factor test to prevail as
would any other complaining party.  

But I could support a special arbitration procedure for NGO's to dispute an
adverse UDRP decision, and a carveout from the current rules so they would
not have to submit to jurisdiction of a foreign court for such an appeal, as
they would today by filing a UDRP complaint.  I had always understood that
was the NGO's primary concern with proceeding under the UDRP.  I think such
an arbitration process could be run by the existing UDRP providers, and
could be as simple as a second review by a different panelist (even at a
different provider), at the NGO's cost.  This essentially would give them
two chances at ADR, rather than having to appeal to a court.

Mike Rodenbaugh

-----Original Message-----
From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On
Behalf Of Robin Gross
Sent: Thursday, November 29, 2007 2:55 PM
To: council@xxxxxxxxxxxxxx
Cc: David W. Maher
Subject: Re: [council] IPC Proposed Revised IGO DRP


I share David's concerns about this proposal.  (Without going into the 
specific concerns on the proposal) we should not circumvent the treaty 
making process and international legal institutions - which is the 
correct forum to take such a proposal to. 

ICANN has no authority to create special rights for IGOs vis-a-vis other 
legal rights to use domain names.

Robin


Gomes, Chuck wrote:

> David is very familiar with the underlying immunity issues and 
> believes that the DRP approach is a way for the IGOs to avoid the 
> treaty route. Here are his words, "This conflict can be reconciled by 
> the traditional means of treaties. I understand that the impetus for 
> this proposal is to do an end run around the treaty process."
>  
> Chuck Gomes
>  
> "This message is intended for the use of the individual or entity to 
> which it is addressed, and may contain information that is privileged, 
> confidential and exempt from disclosure under applicable law. Any 
> unauthorized use, distribution, or disclosure is strictly prohibited. 
> If you have received this message in error, please notify sender 
> immediately and destroy/delete the original transmission."
>  
>
>
------------------------------------------------------------------------
>     *From:* Rosette, Kristina [mailto:krosette@xxxxxxx]
>     *Sent:* Thursday, November 29, 2007 4:55 PM
>     *To:* Gomes, Chuck; council@xxxxxxxxxxxxxx
>     *Subject:* RE: [council] IPC Proposed Revised IGO DRP
>
>     Chuck,
>      
>     Given David's participation in the Joint Working Group on 2003,
>     I've assumed he's familiar with the underlying immunity issue that
>     motivates the arbitration proposal.  (For those Councilors who may
>     not have the institutional knowledge of the IGO issue, it's
>     discussed in pages 12-14 of the Issues Report.)  I, for one, would
>     welcome alternative suggestions from David - or anyone for that
>     matter - that take into account the  immunity-driven limitations.
>      
>     K
>      
>      
>
>
------------------------------------------------------------------------
>         *From:* Gomes, Chuck [mailto:cgomes@xxxxxxxxxxxx]
>         *Sent:* Thursday, November 29, 2007 4:42 PM
>         *To:* Rosette, Kristina; council@xxxxxxxxxxxxxx
>         *Subject:* RE: [council] IPC Proposed Revised IGO DRP
>
>         To get some discussion going, here's some feedback received
>         from David Maher in the RyC, sent with David's permission.
>          
>         "This proposal still has the fundamental flaw that it requires
>         mandatory ARBITRATION. It is an attempt to make ICANN a global
>         legislative body outside the jurisdiction of national courts.
>         The existing UDRP provides for a mandatory ADMINISTRATIVE
>         proceeding and has the following escape clause (4(k)):
>
>             Availability of Court Proceedings. The mandatory
>             administrative proceeding requirements set forth in
>             Paragraph 4 <BLOCKED::#4> shall not prevent either you or
>             the complainant from submitting the dispute to a court of
>             competent jurisdiction for independent resolution before
>             such mandatory administrative proceeding is commenced or
>             after such proceeding is concluded.
>
>         If ICANN can do this, it can make law on any other subject. I
>         don't think we, as registries, want to subject ourselves to
>         mandatory arbitration (except as provided in contracts we have
>         signed) on any subject that the GNSO comes up with."
>          
>         Chuck Gomes
>          
>         "This message is intended for the use of the individual or
>         entity to which it is addressed, and may contain information
>         that is privileged, confidential and exempt from disclosure
>         under applicable law. Any unauthorized use, distribution, or
>         disclosure is strictly prohibited. If you have received this
>         message in error, please notify sender immediately and
>         destroy/delete the original transmission."
>          
>
>
------------------------------------------------------------------------
>             *From:* owner-council@xxxxxxxxxxxxxx
>             [mailto:owner-council@xxxxxxxxxxxxxx] *On Behalf Of
>             *Rosette, Kristina
>             *Sent:* Wednesday, November 28, 2007 10:15 PM
>             *To:* council@xxxxxxxxxxxxxx
>             *Subject:* [council] IPC Proposed Revised IGO DRP
>
>             All,
>
>             Attached please find the IPC Proposed Revised IGO DRP,
>             which was approved by the IPC at its meeting this
>             morning.  Attached also for reference is a redline against
>             the IGO DRP that was contained in the 28 September 2007
>             staff report.
>
>             The IPC believes that its proposed revised IGO DRP
>             remedies the aspects of the original IGO DRP that were
>             previously identified as being of concern. 
>
>             The IPC proposed revised IGO DRP does not address - and
>             was not intended to address - the process by which an IGO
>             DRP would become applicable to existing gTLDs.   Once (or
>             if) it does become applicable to existing gTLDs, the
>             proposed changes reflect a mechanism that is believed to
>             treat existing gTLD registrants fairly.
>
>             Kristina
>
>
>
>             <<11282007 IPC Proposed Revised IGO DRP.DOC>> <<Redline
>             IPC Proposed Revised IGO DRP against Original.DOC>>
>