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Nothing more to add. Looking forward to getting this wrapped up!

Reference out to formal Arbitration is a small change to the Policy. Building a Super Panel is a big change to the Policy.

+1 Alexandra. I also have my doubts that the courts will take a Super Panel decision seriously.

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.

are there headings for the doc on screen?

May not be enforceable

The table shared on screen was sent to the list back in March after preliminary discussions on these two option. 11 Mar. 2021.

@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).

@Jeff - indeed we could.

@Jeff, yeah - it can’t be in the registration agreement.

it can be the same as the current agreement to mutual jurisdiction can’t it`/

That is a good question Jeff. We have to think about how to ensure consent

@Jeff, why does binding-ness of the UDRP govern whether or not a registrant can agree, or not, to be sent to arbitration?

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).

@Mary- thanks.

So, the next question is why would a losing registrant ever agree to that?

Because they would not have access to a court

Every registrant agrees to the UDRP under the RA/RAA

Going to court doesn't automatically usurp the UDRP. It would be up to the Panelist.

If the registrant doesn't pick one of those jurisdictions, a UDRP decision will be implemented.

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.

Because the agreement to arbitrate (esp in lieu of a court proceeding) has to be between the two parties.

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.

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.

@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.

Also noting Kavouss' concerns about the "binding" question.

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.

(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)

right, 10 day's to "appeal" to court to stay the UDRP, but can always go later

Are domain names property? or a license?

What if the domain name is not transferred but simply taken away. IGOs don't necessarily want to own these domain names

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.

But why would IGOs consent to arbitration after being put though the courts?

a good point Alexandra but a separate one for now

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.

We need a flow chart...

Send it to me and I can share on screen.

Why prevent the registrant from asserting an in rem action after court says no jurisdiction over an IGO?

@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

sent you something Berry

Its better than the permanent title I've earned on these calls. :-)

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

Agree Chris. A dig would be good, even if it just turns out to be background.

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Agreed, and yes, we can agree on a select roster of experts (e.g., as Nominet does).

there are other situations where IGO loses or prevails, but it got way too complicated

I volunteer Matt :_)

We’ll check, Chris.

Chris you are invited to be on the Council call too.

May be premature, but suppose it could be a possibility

(right)

Note, there is a process for requesting funds that the WT will have to execute to get funds for any types of legal advice.

I will have to lean a bit on Susan and Paul but will support them as best I can

That makes sense

Susan, Brian, Paul - staff will follow up with you to find out how we can support your work.

None!

Thanks All!

thx