RE: [bc-gnso] RE: DRAFT FOR REVIEW: BC comment on ACDR's proposal to serve as a UDRP provider

[Phil Corwin <psc@xxxxxxxxxxx>]

As the author of the draft statement that has now received some objections, let 
me say that I appreciate and respect the viewpoints and concerns  that have 
been expressed by BC members, and also very much appreciate the offer by 
Mahmoud to participate in a call with BC members. I viewed my role as deviating 
as little as possible from the BC's prior position in preparing a draft, which 
would then be subject to comment from BC members. Indeed it has, and it's clear 
that a somewhat different approach may be the preference of BC members.

It seems to me that there are two separate issues before us:

1.       The application of ACDR to provide UDRP arbitration services.

2.       The need for some enforceable mechanism by which ICANN assures - as we 
witness inevitable applications from additional organizations to provide UDRP 
arbitration services, in an altered gTLD universe of more than 1,000 new 
extensions as well as IDNs - that the UDRP is administered in a UNIFORM manner 
by all providers and that we do not witness divergent approaches to UDRP 
jurisprudence from different providers in different regions. This is important 
not just for registrants but for trademark holders who want assurance that 
their IP rights will receive equivalent treatment by all providers.

While the ACDR is seeking accreditation in part due to the advent of Arabic 
gTLDs they will in no way be limited to adjudicating cases involving IDNs - 
indeed, their projection of 600 cases annually during their start-up period 
would indicate that they could well decide more than one-tenth of all UDRP 
cases at current filing levels.

Setting aside my rapporteur hat, issues that the entities I represent on the BC 
would seek to have addressed as we engage in dialogue with ACDR would include 
the means by which the 15 listed panelists who have no prior UDRP adjudication 
will receive training in contemporary UDRP practice (focused on the WIPO 2.0 
guidelines, which are the only authoritative source of case precedents that I 
am aware of), and how ACDR will assure that cases are randomly assigned amongst 
all its panelists (to avoid a situation like the NAF's continued assignment of 
about half its caseload to just five percent of its listed panelists). I look 
forward to that discussion and expect it to be quite constructive.

Finally, I greatly  appreciate Marilyn's suggestion that the BC advocate "that 
ICANN establish a process, involving all existing providers, and 
representatives from users of the UDRPs, drawn from the Constituencies and ALAC 
and other relevant parties, to undertake development of a uniform set of 
standards for approval of UDRP providers.  This should include a public comment 
process."

-- as well as her suggestion for this language -

The BC proposes that the Board direct staff to undertake a process, supported 
by the community of stakeholders and all UDRP providers, to establish uniform 
rules and procedures and flexible means to delineating and enforcing 
arbitration provider responsibilities.

An approach like that would decouple and continue to pursue the need for ICANN 
to adopt a mechanism to assure uniform UDRP administration from the immediate 
question of the ACDR application to provide UDRP services.

Best regards to all,
Philip



Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
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Twitter: @VlawDC

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

From: owner-bc-gnso@xxxxxxxxx [mailto:owner-bc-gnso@xxxxxxxxx] On Behalf Of 
Marilyn Cade
Sent: Friday, March 22, 2013 6:07 PM
To: Steve Delbianco; bc - GNSO list
Subject: RE: [bc-gnso] RE: DRAFT FOR REVIEW: BC comment on ACDR's proposal to 
serve as a UDRP provider

Steve, thanks.

I read the offer of a call to discuss and answer questions from BC members 
regarding the actual application with great interest. Can we prioritize that so 
that we are informed before a revised position?  I know that time is short 
before China, but perhaps this can be a priority?

Also, as Gabi and Mahmoud both suggested a discussion on what the standards 
should be, shouldn't we include that in our discussion?

I should note that I just traveled to Dubai to the ICANN MIG WORKS - 
Multistakeholder Works/Arab IGF Consultation and went onto MENA ICT Week. The 
interest in the region for  .arab in both Arabic and ASCII is high. I 
understand ICANN also just held meetings in Africa, Latin America, Singapore, 
S.Korea.

The BC should expect a high interest in LATIM, Africa, and MENA and Asia for 
IDN registrations.

Having qualified UDRP providers from the regions that are committed to IP rules 
is a critical part of protecting the Security, stability and reliability of the 
DNS.

I see this as an opportunity for the BC, and was impressed that both Gabi and 
Mahmoud welcomed the BC discussion on retroactive standards. Clearly, we cannot 
do that alone as the BC, but we could be a catalyst.  Could this be a joint 
activity with the NPOC and IPC, for instance?

But first, of course, we should have our own discussions about what kinds of 
requirements are needed and can be enforced.

I look forward to joining a call with the applicant to clarify and discuss 
outstanding issues, and further discussion on this matter.

Marilyn Cade

________________________________
From: sdelbianco@xxxxxxxxxxxxx<mailto:sdelbianco@xxxxxxxxxxxxx>
To: bc-gnso@xxxxxxxxx<mailto:bc-gnso@xxxxxxxxx>
Subject: Re: [bc-gnso] RE: DRAFT FOR REVIEW: BC comment on ACDR's proposal to 
serve as a UDRP provider
Date: Fri, 22 Mar 2013 21:52:34 +0000
By my count, there are 5 objections to the draft comment. (Cade, Szlak, 
Lattouf,  Halvorsen,  Andruff)

As I said when circulating the draft:
However, if 10% of BC membership objects or proposes changes to the prior 
positions expressed here, we'll hold a call to consider changing the present BC 
position.  We have until 13-Apr to debate and develop a new position, if it 
comes to that.  Keep in mind that any vote to change positions would require a 
majority vote of BC members.   (per Charter section 7.3)
We have 46 members in good standing at this time, and 5 objections meets the 
10% threshold.  I will ask Bene's help to schedule a call to discuss amending 
the position.  We have until 13-Apr to submit.


From: owner-bc-gnso@xxxxxxxxx<mailto:owner-bc-gnso@xxxxxxxxx> 
[mailto:owner-bc-gnso@xxxxxxxxx] On Behalf Of Steve DelBianco
Sent: 21 March, 2013 04:56
To: bc - GNSO list
Subject: [bc-gnso] DRAFT FOR REVIEW: BC comment on ACDR's proposal to serve as 
a UDRP provider

Attached is a draft comment from the BC regarding ICANN's call for comments on 
ACDR's proposal to serve as a UDRP provider 
(link<http://www.icann.org/en/news/public-comment/acdr-proposal-01mar13-en.htm>).
   The initial comment period ends 22-Mar and reply comments close 13-Apr.  
(UDRP is the Uniform Domain Name Dispute Resolution Policy)
Note: ACDR is the Arab Center for Domain Name Dispute Resolution, and is 
affiliated with BC Member Talal Abu-Ghazaleh.
Phil Corwin volunteered as rapporteur for these comments.
As mentioned on our member call last week, this draft does not propose any 
changes to previous BC positions.   Instead, the attached comment repeats the 
BC position expressed twice before:
2011:  BC comments on Preliminary Issue Report on current state of the UDRP 
(link<http://www.bizconst.org/Positions-Statements/BC_on_UDRP_Issues_Report_July_2011.pdf>)
2010:  Business Constituency comment on recognizing new UDRP providers 
(link<http://forum.icann.org/lists/acdr-proposal/msg00004.html>)
The 2010 BC position on ACDR's initial application was that the BC could not 
support any accreditation of additional UDRP providers until ICANN developed a 
standard and enforceable mechanism to assure  uniformity in UDRP 
administration. BC members should note that non-support is distinct from 
outright opposition.
We are taking comments on this draft until midnight 21-Mar with plan to submit 
on 22-Mar.  In my view, there is no requirement for formal voting since the BC 
is not taking any new positions in this draft.
However, if 10% of BC membership objects or proposes changes to the prior 
positions expressed here, we'll hold a call to consider changing the present BC 
position.  We have until 13-Apr to debate and develop a new position, if it 
comes to that.  Keep in mind that any vote to change positions would require a 
majority vote of BC members.   (per Charter section 7.3)
--
Steve DelBianco
Vice chair for policy coordination
Business Constituency
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