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051040040 IGO Work Track Team Meeting
Terri Agnew
27:49
Please review ICANN Expected Standards of Behavior here: https://www.icann.org/resources/pages/expected-standards-2016-06-28-en**Members: reminder, when using chat, please select all Panelists and Attendees in order for everyone to see chat. Alternates not replacing members are not allowed to engage in the chat (apart from private chats) or use any of the other zoom room functionalities such as raising hands or agreeing/disagreeing.
Paul McGrady
29:05
All comments welcome!
Brian Beckham (WIPO)
29:45
Noted, thx (also bears on first item).
Terri Agnew
31:39
@Brian, we are unable to hear you clearly.
Brian Beckham (WIPO)
31:42
sorry seem to have mic issues; will dial in, perhaps Alex or David can jump in
Terri Agnew
32:49
Brian has reconnected audio
Terri Agnew
39:03
If your zoom version is updated, raised hand will now appear on bottom tool bar
Terri Agnew
39:30
Some appear on the bottom tool bar, others bottom tool bar/ reactions area.
Jay Chapman
41:18
Can you ask the question again?
Paul McGrady
44:32
Thanks Chris. No objection to agreeing to this in principal but the details of how it is implemented will affect whether or not it is ultimately acceptable.
Brian Beckham (WIPO)
49:49
@Jay an isolated past incidence should not be conflated to portray a position for all IGOs -- *clearly* this is not the case given that we have formed this WG
Paul McGrady
53:46
@Chris - I'm happy to answer that
Chris Disspain
53:54
yup
John McElwaine
54:30
The Complainant consents to having any appeal heard in either the jurisdiction of the Respondent or the Registrar
Mary Wong
55:49
From the UDRP Rules: “Mutual Jurisdiction means a court jurisdiction at the location of either (a) the principal office of the Registrar … or (b) the domain-name holder's address …
John McElwaine
56:03
Can a losing Respondent also appeal in any jurisdiction they want to provided that that Court would exercise jurisdiction?
Jeff Neuman
56:28
You cannot force a defendant into arbitration without a contract
Jay Chapman
57:18
Thanks @Brian - was just saying that IGOs have chosen to utilize the UDRP in the past.
Mary Wong
59:09
@John, even though the UDRP itself simply says “court of competent jurisdiction” (for Availability of Court Proceedings), that part where the registrar waits 10 business days before implementing the UDRP Panel decision also speaks to “a lawsuit against the complainant in a jurisdiction to which the complainant has submitted under Paragraph 3(b)(xiii) of the Rules of Procedure.”
Mary Wong
01:04:58
We are currently discussing the specific question of whether to recommend that IGOs will not be required to submit to Mutual Jurisdiction. The purpose here is to preserve those jurisdictional immunities which IGOs are entitled to but not to limit or affect a registrant’s ability to go to court. Will it help for the group to identify what (if any) are the implications for the registrant if the Work Track pursues this specific suggestion?
Paul McGrady
01:06:21
@Jeff - it is actually up to the panel whether or not it dismisses a UDRP if a court case is filed. Also, the registrant consents to the UDRP when it registers a domain name.
Paul McGrady
01:07:48
@Jeff - I don't think that is accurate. There is no "removal" process
Jeff Neuman
01:09:39
Its not a removal per se, but it is a right to stay the UDRP case
Jeff Neuman
01:09:55
And the UDRP Panelists defer to courts of jurisdiction
Jeff Neuman
01:10:01
competent jurisdiction
Jeff Neuman
01:10:24
Can I respond?
Jeff Neuman
01:10:31
I was referring to the gamble option
Jeff Neuman
01:10:49
meaning you try to sue in court and if no jurisdiction, it is over
Jay Chapman
01:11:33
+1 Jeff
Jeff Neuman
01:12:31
But this is their property that you want to take away
Jeff Neuman
01:12:52
And Panelists do not always get it right
Jeff Neuman
01:13:00
I would love to think we do
Jeff Neuman
01:13:05
But I am realitic
Jeff Neuman
01:13:51
oops realistic
Alexandra Excoffier (OECD)
01:14:00
Is property more important than IGO protecting their public interest missions and the public?
Alexandra Excoffier (OECD)
01:14:35
and we give them a way to litigate, but outside the courts
Alexandra Excoffier (OECD)
01:17:21
Is superpanel final and binding?
Susan Anthony, USPTO
01:17:59
@Alexandra - I believe that is a question yet to be explored by the group.
Mary Wong
01:18:20
@Alexandra, @Susan, yes; that is part of the discussion.
Paul McGrady
01:19:25
Alexandra's question is an important one. My sense of how it would go in the U.S. is that the arbitration outcome would be more respected by the Courts than a "Super Panel" outcome. U.S. courts don't give UDRP decisions much weight (if any) as they view the UDRP as "arbitration light." I expect the "Super Panel" will be put into the same category.
Jeff Neuman
01:19:33
@Alexandra - I don't see this as a contest of rights (namely, whose rights are supreme). Both the right of a registrant to enjoy its property AND an IGOs rights to protect their public mission are important.
Jeff Neuman
01:21:39
Their are some limitations on Arbitration in the US, which is governed by the Federal Arbitration Act. I am NOT by any means a specialist in this area of law at all...but we would need to get legal advice.
Mary Wong
01:24:24
Presumably the UDRP process will have to accommodate consent to binding arbitration by both parties.
Mary Wong
01:25:56
As well as applicable arbitral rules, venue and (as Jeff and Brian are saying) clarify choice of law.
Paul McGrady
01:27:16
@Jeff - you may need to explain the difference between Choice of Law and consent to jurisdiction.
Mary Wong
01:28:41
@Paul, do you mean applicable jurisdiction (venue) vs applicable law? Presumably both would need to be addressed in any consent to binding arbitration.
Jeff Neuman
01:29:20
We would also have to think about appropriate contract language for "click-wrap" arbitrations. In the US, there is a lot of new case law as to how a contract requiring binding arbitration is presented and agreed to.
Mary Wong
01:30:32
@Jeff, yes; which is also why staff has noted the need to obtain consent from both parties at some point in the process. It’s quite possible that it will not be enough to incorporate the registrant’s “agreement” via incorporation/reference in the Registration Agreement with the registrar.
Paul McGrady
01:31:54
Is WIPO even willing to provide a Super Panel? Remember how hard it was to find a URS provider...
Paul McGrady
01:35:43
@Chris - correct
Paul McGrady
01:37:11
Not every country even has a law that defines what a domain name is.
Alexandra Excoffier (OECD)
01:38:02
Jeff makes sense
Brian Beckham (WIPO)
01:38:11
@Paul, that was why as "choice of law" I suggested the UDRP model vs a particular country
Alexandra Excoffier (OECD)
01:38:35
agree with Jeff and Brian
Jeff Neuman
01:38:39
Right Brian
Jeff Neuman
01:39:00
A fallable expert :)
Paul McGrady
01:40:31
@Alexandra - I think that is correct. The Super Panel can just apply past UDRP decisions.
Jeff Neuman
01:40:41
Right, it would be law of the "UDRP" (even though that is not a law) :)
Alexandra Excoffier (OECD)
01:41:22
circumscribe not circumvent, sorry
Jeff Neuman
01:41:28
But this brings us back to the point raised by Paul, which is that courts in the US do not give huge deference to UDRP decisions.
Mary Wong
01:46:01
We can put Paul’s table into a Google Doc or Sheet, if it will help with comments.
Paul McGrady
01:46:47
@Mary - I would like that. I think it would be a better way to capture comments/improvements than back and forth emails (although those are welcome too).
Mary Wong
01:47:08
Thanks, Paul - we’ll do that and send around the link.
John McElwaine
01:48:23
Lost audio. I'm going to ty to rejoin
Mary Wong
01:48:40
@Chris, yes - if anyone prefers email we will add their email comments to the Google Doc for completeness.
John McElwaine
01:48:47
back
Terri Agnew
01:48:51
The IGO Work Track Team meeting is scheduled on Monday, 10 May 2021 at 15:00 UTC for 90 minutes.
Mary Wong
01:50:05
@Chris, sure, we can try to have a go, at least initially.
Alexandra Excoffier (OECD)
01:50:32
it should be on paper either way
Alexandra Excoffier (OECD)
01:50:49
I think
Brian Beckham (WIPO)
01:51:39
thx