RE: [gtld-council] string criteria
- To: "Ross Rader" <ross@xxxxxxxxxx>, "Bruce Tonkin" <Bruce.Tonkin@xxxxxxxxxxxxxxxxxx>
- Subject: RE: [gtld-council] string criteria
- From: "Mike Rodenbaugh" <mxr@xxxxxxxxxxxxx>
- Date: Fri, 2 Mar 2007 07:34:22 -0800
We don't need to create a 'large pseudo-bureaucracy', nor do we need to
force these disputes into courts which could take years and surely would
be a greater expense then predetermined ADR. There are plenty of ADR
providers who could handle this specific type of dispute, which
mechanism would be agreed in advance by the applicant, and paid by both
applicant and challenger. We should talk to American Arbitration
Association, JAMS, WIPO and other similar groups about options here.
This would still allow a challenger to take a matter to court, as they
would not have contractually agreed to the ADR mechanism. However, they
likely would benefit to choose the lesser cost, faster, specialized
mechanism if indeed they want to run the TLD with the string in
question. Indeed ICANN could require a decision through this procedure,
in order to continue consideration of a challenged string. The
alternative would be a lawsuit and the string would not be released
during the current round, at least.
Sr. Legal Director
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[mailto:owner-gtld-council@xxxxxxxxxxxxxx] On Behalf Of Ross Rader
Sent: Friday, March 02, 2007 6:20 AM
To: Bruce Tonkin
Subject: Re: [gtld-council] string criteria
On 2-Mar-07, at 4:37 AM, Bruce Tonkin wrote:
> I can understand that a court in
> the USA would have such authority over ICANN with respect to adding a
> string to the root.
> (1) Are we creating a system that requires a party affected to use the
> USA legal processes
I am also not a lawyer, but I believe the answer to this is yes - we
would be looking for a system that requires ICANN to submit to the
judgement of a court that has authority over ICANN - wherever that
may be. Not only would this include the United States, but any
country where ICANN has nexus. For example, Tucows is a Canadian
company, but we have nexus in many, many countries (notably the US)
and depending on circumstances, would need to submit to these foreign
courts in various circumstances - either that or risk arrest or other
action when our executives touch soil in those regions ;)
As ICANN becomes increasingly globalized, the number of courts that
have authority over ICANN will ostensibly increase.
BTW - this situation exists no matter what administrative choices we
make. I believe you are proposing that we create options so that
ICANN can avoid the courts, but this simply amounts to recreating a
subset of these legal systems (badly) inside our various contracts.
My preference would be to preserve this status quo instead of
creating a large pseudo-legal bureaucracy in an attempt to cover over
the fact that ICANN is a US corporation.
Director, Retail Services
"To solve the problems of today, we must focus on tomorrow."
- Erik Nupponen