[bc-gnso] Prior BC Position on Uniform Agreements with UDRP Providers ( RE: [bc-gnso] UDRP Motions (competing) for GNSO Council call)

[Phil Corwin <psc@xxxxxxxxxxx>]

Per Steve's suggestion, here is the October 2010 BC position regarding 
accreditation of new UDRP arbitration providers (emphasis added) -

http://forum.icann.org/lists/acdr-proposal/msg00004.html

Business Constituency (BC) Comment on ICANN Proposal
to Recognize New Domain Name Dispute Provider

*Background*
There is a pending request for comment regarding the application of the Arab
Center for Domain Name Dispute Resolution (ACDR) to become a certified
Uniform Dispute Resolution Procedure (UDRP) arbitration provider.
*Summary*
The Business Constituency (BC) cannot support approval of this or any other
UDRP accreditation application at this time on the grounds that no new UDRP
providers should be accredited until ICANN implements a standard mechanism
for establishing uniform rules and procedures and flexible means of
delineating and enforcing arbitration provider responsibilities.

*Explanation*
The BC notes that the voluntary registration or renewal of a gTLD domain
must be undertaken via an ICANN-accredited registrar. All registrars are
subject to a uniform contractual agreement with ICANN, the Registrar
Accreditation Agreement (RAA). ICANN recently strengthened the RAA with
additional amendments and the addition of flexible enforcement options, and
a Final Report proposing additional RAA amendments has just been delivered
to the GNSO for its consideration.
In stark contrast, the involuntary termination or transfer of a domain can
be ordered under the authority of a UDRP provider that has been accredited
by ICANN but which is not bound by any constraints on or requirements
pertaining to the exercise of that delegated authority.  This has led to
increasing concerns about the lack of adequate procedural and substantive
consistency in the UDRP process. Such concerns are likely to grow if
additional providers are accredited in the absence of the uniform framework
of a standard mechanism.
The BC strongly advocates that ICANN must first implement a standard
mechanism with any and all UDRP arbitration providers that defines and
constrains their authority and powers, and establishes regular and
standardized review by ICANN with flexible and effective means of
enforcement. The ultimate sanction of cancelling accreditation is an extreme
sanction that ICANN has demonstrated a reluctance to initiate in other
contexts.

ICANN appears to be transitioning from an environment in which the vast
majority of UDRP cases (approximately 98%) were handled by two arbitration
providers (WIPO and NAF) and in which significant gTLDs were based in a
limited number of national jurisdictions to one in which the majority of
gTLDs and UDRP providers may well be headquartered in a widely distributed
group of jurisdictions.

In the future, business interests may well be investing substantial amounts
in these new gTLDs, for both defensive,  new branding, and other purposes.
In this type of environment it is even more important that  all  UDRP
providers be subject to uniform and enforceable responsibilities, as that is
the only means of furthering the goal that UDRP decisions are consistent
within and among UDRP providers, and that the UDRP remains an expedited and
lower cost remediation for addressing cybersquatting.
The BC notes that the issue of whether UDRP providers should be under a
standard mechanism with ICANN is almost entirely separable from the question
of whether the UDRP evaluation standards for determining the existence of
cybersquatting should be reformed.  There is no need to debate the
substantive elements of the UDRP in order to address the fundamental issue
of whether UDRP providers should be under a standard mechanism.

***

The rapporteur for these comments was Phil Corwin.

ICANN Business Constituency
http://www.bizconst.org



Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/cell

"Luck is the residue of design" -- Branch Rickey

From: owner-bc-gnso@xxxxxxxxx [mailto:owner-bc-gnso@xxxxxxxxx] On Behalf Of 
Zahid Jamil
Sent: Thursday, November 10, 2011 10:49 AM
To: bc-gnso@xxxxxxxxx
Subject: RE: [bc-gnso] UDRP Motions (competing) for GNSO Council call

A tabular comparison of the two UDRP motions with highlights to make them more 
convenient to review is attached.

Sincerely,


Zahid Jamil
Barrister-at-law
Jamil & Jamil
Barristers-at-law
219-221 Central Hotel Annexe
Merewether Road, Karachi. Pakistan
Cell: +923008238230
Tel: +92 21 35680760 / 35685276 / 35655025
Fax: +92 21 35655026
www.jamilandjamil.com<http://www.jamilandjamil.com/>

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From: owner-bc-gnso@xxxxxxxxx<mailto:owner-bc-gnso@xxxxxxxxx> 
[mailto:owner-bc-gnso@xxxxxxxxx]<mailto:[mailto:owner-bc-gnso@xxxxxxxxx]> On 
Behalf Of Zahid Jamil
Sent: 10 November 2011 20:19
To: bc-gnso@xxxxxxxxx<mailto:bc-gnso@xxxxxxxxx>
Subject: [bc-gnso] UDRP Motions (competing) for GNSO Council call

Dear BC Members,

Here are two competing motions that have recently been posted to the Council 
list for inclusion in the next GNSO Council call:


ROPOSED MOTION ON REVIEW OF THE UDRP

Made by: Mary Wong (Non-Commercial SG)

Seconded by:

     WHEREAS, on 3 February 2011 the GNSO Council adopted a resolution 
requesting an Issue Report on the current state of the Uniform Dispute 
Resolution Policy (UDRP) from ICANN staff, to include consideration of: (1) how 
the UDRP has addressed the problem of cybersquatting to date, and any 
insufficiencies/inequalities associated with the process; (2) whether the 
definition of cybersquatting inherent within the existing UDRP language needs 
to be reviewed or updated; and (3) suggestions for how a possible PDP on this 
issue might be managed;

     WHEREAS, a Preliminary Issue Report was prepared by ICANN staff and 
released for public comment from 27 May 2011 to 22 July 2011, for which 24 
community comments were received;

     WHEREAS, further feedback was received in the form of responses by various 
UDRP providers to a questionnaire issued by ICANN staff, a Webinar conducted by 
ICANN staff, and two UDRP-related sessions held at the 41st ICANN meeting in 
Singapore;

     WHEREAS, a Final Issue Report taking into account the community comments 
and public feedback received was prepared by ICANN staff and published on 3 
October 2011;

     WHEREAS, the Final Issue Report illustrates a diversity of views among the 
ICANN community as to a number of UDRP-related issues, such as: (1) the 
advisability of commencing a PDP at this time rather than when the new 
rights-protection mechanisms (RPMs) mandated by the new gTLD program (e.g. the 
Uniform Rapid Suspension (URS) system) are reviewed; (2) whether the UDRP, 
although improved over time in terms of consistency of application and 
streamlining of processes, is fair; and (3) other matters such as whether to 
launch a PDP or form an experts' panel, and whether more formal accreditation 
or contracts between ICANN and UDRP providers is desirable;

     WHEREAS, a PDP provides the best means for assessing how to respond to 
this diversity of views, in particular because a PDP can be designed to address 
concerns about the size and complexity of the UDRP review, such as: (1) by 
identifying short-term issues that can be worked on during the launch of the 
new gTLD program and up to the first review of the URS, and other issues that 
may require a longer time frame for work, including any process-related or 
current implementation problems; (2) the formation of Sub-Teams within the 
Working Group to handle different issues, tasks and timelines; and (3) the 
division of the PDP into work phases, including possible issues and time frames 
corresponding to the new gTLD program, if appropriate;

     WHEREAS, the UDRP is the oldest GNSO policy that has yet to be reviewed, 
and the further postponement of a PDP is unlikely to improve or correct some of 
the flaws and problems with the current UDRP that were identified by the ICANN 
community during the process of preparation of the Final Issue Report; and

     WHEREAS, the issue of community bandwidth and resource allocation may not 
diminish even after the launch of the new gTLD program and the new RPMs, and 
reviewing such a complex policy as the UDRP together with the URS is likely to 
exert even more pressure on community bandwidth and resources;

     Be it RESOLVED, that the GNSO Council approves the initiation of a PDP on 
the UDRP and the establishment of a Working Group on UDRP Review;

     RESOLVED, further, that the drafting team that will be formed and charged 
with developing a charter for the Working Group on UDRP Review take into 
account the diverse possibilities for Working Group modalities and work 
phasing; and

     RESOLVED, further, that the charter for the Working Group specifically 
task the Working Group with considering: (1) related issues and recommendations 
raised by the Post-Expiration Domain Name Recovery (PEDNR) PDP Working Group, 
which were adopted by the GNSO Council as recommendations to the ICANN Board of 
Directors at its meeting on 21 July 2011; and (2) recommendation #7 of the IRTP 
Part B Working Group, which the GNSO Council at its meeting on 22 June 2011 
received and agreed to consider when it takes up consideration of the Final 
Issue Report on the Current State of the UDRP; and (3) such  other similar 
issues and recommendations as it considers appropriate.
---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Competing Proposed Motion on the UDRP PDP

Made by: Jeff Neuman (Registries SG)

Seconded by:

Whereas the Registration Abuse Policies Working Group submitted a final report 
the GNSO Council on 29 May 2010 (see 
http://gnso.icann.org/issues/rap/rap-wg-final-report-29may10-en.pdf), 
recommending an issue report on the current state of the UDRP considering both 
(a) How the UDRP has addressed the problem of cybersquatting to date, and any 
insufficiencies/inequalities associated with the process, and (b) Whether the 
definition of cybersquatting inherent within the existing UDRP language needs 
to be reviewed or updated, and

Whereas, on February 3, 2011, the GNSO Council requested an Issues Report in 
accordance with the recommendations of the Registration Abuse Policies Working 
Group [LINK], and

Whereas, a Preliminary Issue Report was published on 27 May 2011 [LINK] and 
series of webinars and workshops were held soliciting public comment to allow 
for the ICANN community to provide feedback on the analysis and recommendations 
contained therein, and

Whereas, a Final Issue Report was published on 3 October 2011 [LINK] in which 
ICANN staff recommended the GNSO Council consider the "perspective of the 
majority of the ICANN community, and the advice of the Government Advisory 
Committee (GAC), and the At-Large Advisory Committee" and that "a PDP be 
delayed until after the New gTLD Uniform Rapid Suspension System (URS) has been 
in operation for at least eighteen months. . . [to] allow the policy process to 
be informed by data regarding the effectiveness of the URS, which was modeled 
on the UDRP, to address the problem of cybersquatting."

RESOLVED, that the GNSO approved the initiation of a PDP and the establishment 
of a Working Group on recommendation #7 of the IRTP Part B Working Group 
concerning the requirement to lock a domain name subject to UDRP proceedings, 
which the GNSO Council at its meeting on 22 June 2011 received and agreed to 
consider when it takes up consideration of the Final Issue Report on the 
Current State of the UDRP.

RESOLVED further, the GNSO Council requests a new a new Issue Report on the 
current state of all rights protection mechanisms implemented for both existing 
and new gTLDs, including but not limited to, the UDRP and URS, should be 
delivered to the GNSO Council by no later than eighteen (18) months following 
the delegation and launch of the first new gTLD.


Sincerely,


Zahid Jamil
Barrister-at-law
Jamil & Jamil
Barristers-at-law
219-221 Central Hotel Annexe
Merewether Road, Karachi. Pakistan
Cell: +923008238230
Tel: +92 21 35680760 / 35685276 / 35655025
Fax: +92 21 35655026
www.jamilandjamil.com<http://www.jamilandjamil.com/>

Notice / Disclaimer
This message contains confidential information and its contents are being 
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recipient you should not disseminate, distribute or copy this e-mail.  Please 
notify the sender immediately by e-mail if you have received this message by 
mistake and delete it from your system. The contents above may contain/are the 
intellectual property of DNDRC, and constitute privileged information protected 
by attorney client privilege. The reproduction, publication, use, amendment, 
modification of any kind whatsoever of any part or parts (including 
photocopying or storing it in any medium by electronic means whether or not 
transiently or incidentally or some other use of this communication) without 
prior written permission and consent of DNDRC is prohibited.

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