[bc-gnso] RE: ICANN Board Considering New UDRP Provider

[Phil Corwin <psc@xxxxxxxxxxx>]

On Saturday I sent the e-mail below to all BC members, requesting that the BC 
weigh in with the Board prior to its special meeting scheduled for this 
Thursday, February 28th at which the request of the ACDR to be an accredited 
UDRP provider is on the consent calendar. While the listing does not indicate 
whether the Board is lined up to approve or disapprove the request, one must 
presume that it would not be on the consent calendar if approval was not 
contemplated.

Here is additional information regarding this matter:

*         ACDR's application to be a UDRP provider was opened to public comment 
on September 28, 2010. In other words this matter was first contemplated almost 
two and one half years ago and ICANN has said and done nothing more on it since 
that time 
http://www.icann.org/en/news/announcements/announcement-28sep10-en.htm .

*         In addition to the BC comment requesting that no new UDRP providers 
be accredited until ICANN developed a standard contract for all UDRP providers, 
the IPC also expressed concerns about the application. All comments may be 
viewed at http://forum.icann.org/lists/acdr-proposal/ . A summary of comments 
prepared by ICANN staff is below.

In view of the facts that this matter has been dormant for the past 2.5 years, 
that ICANN has added it to the Board's calendar without any public notice other 
than the publication of the calendar, that ICANN has not stated whether and to 
what extent it has taken into account and accommodated the public comments (or 
whether ACDR has submitted a revised proposal) - and that this matter will be 
discussed and decided by the Board in about 72 hours -I am again requesting 
that the BC take immediate action to communicate the following to the Board:

*         Reiterate its position that no new UDRP providers should be approved 
absent development of a standard contract for all UDRP providers.

*         Defer action on this matter until a public notice has been published 
advising the community of whether and to what extent ACDR's application to be a 
UDRP provider has been revised to accommodate the comments that were received 
in 2010.
The BC has been vigilant in asserting its established policy positions in other 
matters when the need to do so has arisen, and I would hope and expect that it 
will do the same in this case.

Best regards,
Philip




ICANN staff summary of comments received ---
http://forum.icann.org/lists/acdr-proposal/msg00007.html




Summary and Analysis of Public Comments for ACDR Proposal to be Recognized as 
an Official Dispute Resolution Provider Under the UDRP

Comment period: 28 September 2010 - 28 October 2010

Background

The Arab Center for Domain Name Dispute Resolution (ACDR) submitted a proposal 
to ICANN to be recognized as an official dispute resolution provider under the 
UDRP. The proposal was submitted pursuant to the process specified at 
http://www.icann.org/en/dndr/udrp/provider-approval-process.htm .

At its 5 August 2010 meeting, the Board approved staff's recommendation to 
publish the ACDR proposal for a public comment for a period of not less than 30 
days.

Comments received

A total of seven comments were received.

Summary of relevant comments

George Kirikos of Leap Financial Services Inc. commented that ICANN should not 
approve another UDRP provider and should instead prioritize bringing existing 
UDRP providers under contract. 
http://forum.icann.org/lists/acdr-proposal/msg00000.html

Barbara Madonik of Unicom Communication Consultants Inc. commented that while 
she applauds the attempt to establish an international center, the locale of 
the ACDR "might not be ideal" and ICANN should seek a more neutral location to 
serve both Arab and non-Arab countries. 
http://forum.icann.org/lists/acdr-proposal/msg00001.html

Moe Alramahi expressed support for the ACDR's proposal, noting that it is 
"reasonable, comprehensive and robust." Mr. Alramahi also noted that recent 
developments in the domain name system, such as the introduction of IDNs and 
gTLDs will lead to increased disputes, and local knowledge and expertise will 
expedite the handling of those disputes. 
http://forum.icann.org/lists/acdr-proposal/msg00002.html

A commenter identified as Volodya submitted comments covering positive and 
negative aspects of the ACDR proposal. Among the positives are the location of 
the Center, which will provide a "more balanced process"; the provision of 
multilingual services, and the multinational composition of the initial panel. 
Among the negatives are the apparent view of the ACDR to enforce the "strong 
protection of Intellectual Property Rights," which raises questions of the 
ACDR's commitment to

neutrality. Further, the Advisory Board's selection is based upon experience in 
"intellectual property protection" - again demonstrating a bias. Though the 
panel selection procedures allow for persons to be chosen that "do[] not openly 
show support for Intellectual Property," the remainder of the document 
"suggests . . . a deliberate attempt to derail the neutral process of domain 
name resolution." Volodya notes that this could result in biased panels, and 
would not represent the "complexity of the IP debate." 
http://forum.icann.org/lists/acdr-proposal/msg00003.html

Steve DelBianco on behalf of the ICANN Business Constituency (BC) submitted the 
BC's comment that it cannot support the approval of ACDR's proposal nor any 
other proposal until "ICANN implements a standard mechanism for establishing 
uniform rules and procedures and flexible means of delineating and enforcing 
arbitration provider responsibilities." The BC noted that gTLD names can only 
be registered through accredited registrars under contract with ICANN, but 
non-contracted UDRP providers have the power to order the involuntary deletion 
or transfer of those same names. The BC raised a concern of the consistency of 
the UDRP process among providers, and noted that these concerns grow if 
additional providers are approved without first creating a uniform framework. 
Therefore, the BC "advocates" that ICANN should first standardize a framework 
for UDRP providers - allowing for regular ICANN review and ultimate loss of 
approval where appropriate - prior to approving any new providers. The creation 
of a uniform framework - including constraints on provider authority - is 
increasingly important with the anticipated expansion of gTLDs and 
jurisdictions where disputes are likely to arise. This will further the goal of 
consistency among decisions and will allow the UDRP to remain "an expedited an 
lower cost remediation" to address cybersquatting. The BC notes that the 
standardization of provider practices does not require a full review of the 
substantive elements of the UDRP. 
http://forum.icann.org/lists/acdr-proposal/msg00004.html

J. Scott Evans on behalf of the Intellectual Property Constituency (IPC) 
submitted conditional approval of the ACDR proposal, noting the geographic and 
cultural diversity the ACDR would bring to the UDRP process at a time where 
Arabic expertise is needed. The IPC provides substantive comment on portions of 
the ACDR's proposal, suggesting that a proposal adopting all of the IPC's 
modifications would be appropriate for approval, but if the ACDR elects not to 
incorporate all revisions, the proposal should be presented for further public 
comment. The IPC also cautioned that "any enthusiasm for the ACDR's proposal 
must be tempered by the desire to ensure a predictable and equitable system of 
domain name dispute resolution - as opposed to any profit-driven 'race to the 
bottom' between UDRP providers." The IPC's substantive comments on the proposal 
identified issues such as potential inconsistencies with the UDRP and its Rules 
on electronic filings, commencement dates, and definition of "writings." The 
IPC also recommends changes to the fee structure proposed, with an eye to 
minimizing fees to complainants. Additional recommendations include: inclusion 
of statements on the commitment to impartiality and fairness; additional 
information on the start-up

period and background and track record for handling ADR proceedings; and 
clarification of the role of a presiding panelist. 
http://forum.icann.org/lists/acdr-proposal/msg00006.html

Philip Corwin on behalf of the Internet Commerce Association (ICA) submitted 
its opposition to the ACDR proposal. As with the BC comments, the ICA notes 
that it "strongly opposes" the approval of any new UDRP dispute resolution 
provider until ICANN forms a uniform, enforceable agreement with all UDRP 
providers, to assure due process to all parties to a UDRP actions, and to 
prevent forum shopping among UDRP providers. The ICA provides substantial 
discussion of the need for enforceable agreements with UDRP providers, echoing 
many comments made by the BC regarding the contractual regime in place for the 
registration of domain names within gTLDs and the lack of contracts with the 
entities that may force involuntary deletions or transfers of those names. The 
ICA emphasizes the need for uniformity of process that can be achieved through 
enforceable agreements. The ICA comments refer to prior ICA communications on 
this same topic, including comments relating to a proposal of another UDRP 
provider to allow for reduced fees for UDRP proceedings where no response is 
filed. The ICA provides a suggested list of topics that such an agreement 
should encompass. The ICA then identified deficiencies to be addressed in 
ACDR's proposal. These deficiencies include: a lack of "meaningful" information 
on the types of arbitration handled by the ACDR's component entities and their 
"track records"; more fulsome documentation of the preparation of panel 
training materials; no representations of monthly case handling capabilities; 
the "meaningless" assertion of being able to handle 5,000 proceedings in a 
start-up period, particularly when compared to the numbers of cases handled by 
existing UDRP providers; a lack of description of communications with other 
UDRP providers, and a commitment to researching decisions of other providers so 
as to assure consistency.

ICA notes its opinion that if ACDR is approved as a provider, a strict 
limitation on the number of cases it may handle, subject to an ICANN quality 
review before the limitation can be lifted. Finally, ICA comments on the 
confidentiality of ACDR's internal operating procedures and that the community 
will not be able to review those for fairness. 
http://forum.icann.org/lists/acdr-proposal/msg00005.html

Analysis and Next Steps

The commenters were of varied opinions on the ACDR's proposal: Three commenters 
(George Kirikos, the BC and the ICA) were expressly against the ACDR proposal. 
The IPC noted its conditional approval subject to incorporation of suggested 
changes, and only one commenter (Alramahi) submitted unqualified support for 
the ACDR proposal.

Some commenters identified the fact that the ACDR would bring greater cultural 
and geographic diversity to the UDRP providers, as well as expand multi-lingual 
abilities of UDRP providers. Though one commenter questioned whether Jordan is 
a neutral

enough locale for a UDRP provider, if the ACDR were to be approved as a 
provider, such approval would not limit the ability for others in the region to 
seek to become an approved provider as well.

The three commenters opposed to the approval of the ACDR proposal noted their 
opinion that ICANN should not approve any additional UDRP providers prior to 
establishing a uniform, enforceable arrangement with all existing UDRP 
providers. The ICA also recommended that ICANN undertake an expert third party 
review of the operation of UDRP generally.

One commenter, Volodya, raised the question of the neutrality of the panelists 
to be appointed by the center, based upon the statement in the ACDR's proposal 
that it will enforce the "strong protection of Intellectual Property Rights." 
No other commenters raised this neutrality argument. The IPC and the ICA each 
provided substantial comments on the substance of the ACDR proposal. The IPC 
noted that if all of its suggestions were addressed, then it may be appropriate 
for ICANN to approve the ACDR's application; otherwise the proposal should be 
posted for additional public comment. The ICA, after attempting to evaluate the 
proposal against the published criteria for applying to be a UDRP provider, 
suggested that there is no way for ICANN to proceed to approval of the ACDR's 
proposal.

Some areas identified by the IPC and ICA include:

(i) Provision of more detail on track record in handling alternative dispute 
resolution proceedings;

(ii) A more precise statement regarding the case load administrative capacity 
that the ACDR anticipates handling;

(iii) Better documentation regarding the creation of training materials;

(iv) Revision of specific terms in the supplemental rules to better align with 
the UDRP process;

(v) Revision to the ACDR's fee structure; and

(vi) Release of confidential internal operating procedures.



ICANN is providing the ACDR with a copy of this summary and analysis so that 
the ACDR may determine how to respond and whether it wishes to revise any 
portion of its proposal. When a revised proposal is received, the proposal will 
be reviewed to determine if further public comment is advisable prior to 
presentation to the Board for consideration. Further comment may not be 
necessary, for example, if the ACDR elects to not alter its fee schedule, as 
the UDRP allows providers to set their own fees.

Separate from the ACDR proposal, ICANN has been undertaking a process to review 
its relationships with UDRP providers, and that review is ongoing.

Contributors (chronological order of posting):

George Kirikos, President, Leap of Faith Financial Services Inc.

Barbara Madonik, President, Unicom Communication Consultants Inc.

Moe Alramahi, Law Lecturer/ Domain Name Panelist (ADNDRC)

Volodya

Steve DelBianco, Business Constituency

J. Scott Evans, Intellectual Property Constituency
Philip Corwin, Internet Commerce Association

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

Twitter: @VlawDC

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

From: Phil Corwin
Sent: Saturday, February 23, 2013 2:36 PM
To: Phil Corwin; bc-gnso@xxxxxxxxx
Subject: RE: ICANN Board Considering New UDRP Provider
Importance: High

Fellow BC Members:

In October 2010 the BC adopted a position of non-support the accreditation of 
the Arab Center for Domain name Dispute Resolution or any other new gTLD 
provider "until ICANN implements a standard mechanism
for establishing uniform rules and procedures and flexible means of delineating 
and enforcing arbitration provider responsibilities." I was the rapporteur for 
the position statement but it received consensus support from the entire BC, 
with many trademark owners expressing concern about a diminishment of UDRP 
standards in the absence of some standard and enforceable mechanism to assure 
uniform application of that policy.

The accreditation of the ACDR is on the ICANN Board's Consent calendar for its 
meeting of Thursday, February 28th. I am hereby requesting that the BC 
communicate this position statement to the Board in advance of its discussion 
of that matter, as it has done in the past on other issues for which the BC has 
a relevant established position.

Thank you for your consideration of this request.

Best, Philip



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

Twitter: @VlawDC

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

From: owner-bc-gnso@xxxxxxxxx<mailto:owner-bc-gnso@xxxxxxxxx> 
[mailto:owner-bc-gnso@xxxxxxxxx] On Behalf Of Phil Corwin
Sent: Friday, February 22, 2013 3:37 PM
To: bc-gnso@xxxxxxxxx<mailto:bc-gnso@xxxxxxxxx>
Subject: [bc-gnso] ICANN Board Considering New UDRP Provider
Importance: High

FYI, on the consent calendar for the 2/28 ICANN Board Meeting 
https://www.icann.org/en/groups/board/documents/agenda-28feb13-en.htm ---

Arab Center for Dispute Resolution's Proposal to Serve as UDRP Provider


You may recall that the BC is on record as stating several years back (don't 
have time right now to find document) that ICANN should not accredit any new 
UDRP providers until it developed a standard contract for all providers. My 
recollection is that this provider was one of the two being considered at that 
time and is based in Amman, Jordan.

In a related matter, while ICANN announced yesterday that NAF would be a URS 
provider, it did not state whether NAF would be placed under contract per the 
STI recommendation.

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

Twitter: @VlawDC

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

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