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051040040 IGO Work Track Team Meeting - Shared screen with speaker view
Andrea Glandon - ICANN Org
23:24
Please review ICANN Expected Standards of Behavior here: https://www.icann.org/resources/pages/expected-standards-2016-06-28-en
Andrea Glandon - ICANN Org
25:18
**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
25:39
Nothing more to add. Looking forward to getting this wrapped up!
Paul McGrady
32:04
Reference out to formal Arbitration is a small change to the Policy. Building a Super Panel is a big change to the Policy.
Paul McGrady
33:31
+1 Alexandra. I also have my doubts that the courts will take a Super Panel decision seriously.
Paul McGrady
37:51
I tend to think that arbitration would also provide more due process safeguards for registrants than a Super Panel would. The evidence you can introduce in a arbitration is much more broad as are the defenses you can raise.
Brian Beckham (WIPO)
38:08
are there headings for the doc on screen?
Alexandra Excoffier (OECD)
38:55
May not be enforceable
Berry Cobb
39:25
The table shared on screen was sent to the list back in March after preliminary discussions on these two option. 11 Mar. 2021.
Mary Wong
39:27
@Brian, this is the summary doc that was circulated some time ago, and this table basically lists the options and some considerations (as you can see now).
Paul McGrady
40:34
@Jeff - indeed we could.
Mary Wong
41:36
@Jeff, yeah - it can’t be in the registration agreement.
Chris Disspain
42:04
it can be the same as the current agreement to mutual jurisdiction can’t it`/
Alexandra Excoffier (OECD)
42:59
That is a good question Jeff. We have to think about how to ensure consent
Paul McGrady
45:41
@Jeff, why does binding-ness of the UDRP govern whether or not a registrant can agree, or not, to be sent to arbitration?
Mary Wong
45:48
The registration agreement can include a provision whereby the registrant agrees to consider arbitration at a specific point in the proceedings, but the actual agreement to arbitrate needs to be separate and be with the relevant party (i.e. IGO, not the registrar).
Paul McGrady
46:08
@Mary- thanks.
Paul McGrady
46:25
So, the next question is why would a losing registrant ever agree to that?
Alexandra Excoffier (OECD)
47:07
Because they would not have access to a court
Brian Beckham (WIPO)
47:14
Every registrant agrees to the UDRP under the RA/RAA
Paul McGrady
47:23
Going to court doesn't automatically usurp the UDRP. It would be up to the Panelist.
Paul McGrady
48:20
If the registrant doesn't pick one of those jurisdictions, a UDRP decision will be implemented.
Berry Cobb
48:28
To be precise, the Registrant agrees to the UDRP/URS as part of the registration agreement with the Registrar as its obligated to do so via the RAA.
Mary Wong
49:42
Because the agreement to arbitrate (esp in lieu of a court proceeding) has to be between the two parties.
Paul McGrady
50:15
Current language from GoDaddy registration agreement: You agree to be bound by our current Dispute Resolution Policy. This policy is incorporated herein and made a part of this Agreement. You can view the Uniform Domain Name Dispute Resolution Policy online. You agree that GoDaddy may from time to time modify its Dispute Resolution Policy. GoDaddy will post any changes to its Dispute Resolution Policy at least thirty (30) days before they become effective. You agree that by maintaining your domain name registrations with GoDaddy after the updated policy becomes effective that you agree to the Dispute Resolution policy as amended. You agree to review GoDaddy's website periodically to determine if changes have been made to the Dispute Resolution Policy. If you cancel or terminate your Services with GoDaddy as a result of the modified Dispute Resolution policy, no fees will be refunded to you. You also agree to submit to proceedings commenced under ICANN's Uniform Rapid Suspension System, if applicable.
Mary Wong
51:22
In addition to the need for an agreement to arbitrate to be between the relevant parties, another potential complication with inserting mandatory arbitration with a third party (not the registrar) into the registration agreement could be the fact that it is basically a standard form contract.
Paul McGrady
54:58
@Brian - correct. We would be making it up from scratch and so it would mean big changes to the UDRP/URS. Fine, if we need to, but it seems like just referencing out to arbitration would be cleaner. Yet, I do note Mary's concerns about how we making it binding.
Paul McGrady
56:07
Also noting Kavouss' concerns about the "binding" question.
Mary Wong
57:15
There have been some cases where a third party was subject to an arbitration clause in a contract between two other parties, but those were in very specific circumstances and based on the somewhat arcane law of third party beneficiaries. For clarity (even if not always 100%) it’s best to have a voluntary agreement to arbitrate that is signed between the two parties concerned.
Mary Wong
58:30
(Caveat - staff are also not experts on the law of third party beneficiaries or on the form and enforceability of arbitration agreements in multiple jurisdictions)
Brian Beckham (WIPO)
01:01:16
right, 10 day's to "appeal" to court to stay the UDRP, but can always go later
Alexandra Excoffier (OECD)
01:02:31
Are domain names property? or a license?
Alexandra Excoffier (OECD)
01:03:48
What if the domain name is not transferred but simply taken away. IGOs don't necessarily want to own these domain names
Mary Wong
01:05:12
Most countries/jurisdictions have not ruled on whether a domain name is property, and many do not allow for the possibility of “in rem” proceedings.
Alexandra Excoffier (OECD)
01:08:24
But why would IGOs consent to arbitration after being put though the courts?
Chris Disspain
01:08:58
a good point Alexandra but a separate one for now
Mary Wong
01:09:38
In general, binding arbitral awards will be enforceable in most jurisdictions (e.g. under the New York Convention), though not without challenges in some instances. Presumably that is a critical difference between using a widely-recognized ADR option like binding arbitration (if in accordance with accepted rules like ICC or AAA) vs a super panel.
Paul McGrady
01:10:43
We need a flow chart...
Berry Cobb
01:11:16
Send it to me and I can share on screen.
Jay Chapman
01:13:35
Why prevent the registrant from asserting an in rem action after court says no jurisdiction over an IGO?
Brian Beckham (WIPO)
01:14:47
@Jay, I may have totally misunderstood but I never thought anything we have been discussing would foreclose a registrant from going to court at some later point
Brian Beckham (WIPO)
01:16:12
sent you something Berry
Paul McGrady
01:16:13
Its better than the permanent title I've earned on these calls. :-)
Alexandra Excoffier (OECD)
01:16:52
From my understanding in Rem proceedings in the US are very limited in scope and doubtful that it would go ahead here. Also, assuming that domain names are property and IGO would own that property, our property is inviolable and not subject to court decisions, so we are back to scratch
Paul McGrady
01:19:06
Agree Chris. A dig would be good, even if it just turns out to be background.
Andrea Glandon - ICANN Org
01:27:24
**Members: reminder, when using chat, please select all Panelists and Attendees in order for everyone to see chat.
Brian Beckham (WIPO)
01:28:12
Agreed, and yes, we can agree on a select roster of experts (e.g., as Nominet does).
Alexandra Excoffier (OECD)
01:31:48
there are other situations where IGO loses or prevails, but it got way too complicated
Alexandra Excoffier (OECD)
01:32:26
I volunteer Matt :_)
Mary Wong
01:33:10
We’ll check, Chris.
Berry Cobb
01:34:19
Chris you are invited to be on the Council call too.
Brian Beckham (WIPO)
01:35:23
May be premature, but suppose it could be a possibility
Brian Beckham (WIPO)
01:35:40
(right)
Berry Cobb
01:36:26
Note, there is a process for requesting funds that the WT will have to execute to get funds for any types of legal advice.
Brian Beckham (WIPO)
01:36:34
I will have to lean a bit on Susan and Paul but will support them as best I can
Paul McGrady
01:36:44
That makes sense
Mary Wong
01:37:23
Susan, Brian, Paul - staff will follow up with you to find out how we can support your work.
Paul McGrady
01:38:20
None!
Paul McGrady
01:38:25
Thanks All!
Brian Beckham (WIPO)
01:38:52
thx