ICA files comment on ICANN proposals to deprive registrants of recourse to court following IGO UDRPs

In response to ICANN’s request for comments from stakeholders, the ICA filed its Comment, on the Initial Report on Specific Curative Rights Protections for IGOs. This is an important issue that the ICA has been actively involved in for many years and ICA Board Member Jay Chapman served in the ICANN group working on this issue on behalf of the Business Constituency. The ICA thanked Jay Chapman for “his tireless efforts on behalf of registrants”.

The Initial Report raises numerous concerns, which the ICA addresses in its Comments to ICANN. Any proposed policy solution which “affects the right and ability of registrants to file judicial proceedings” and/or which fails to “preserve registrants’ rights to judicial review” of a UDRP or URS decision is unjust and will not comply with the clear and specific mandate given by ICANN’s GNSO Council. It is crucial that the GNSO Council carefully evaluate whether the policy proposals made in the Initial Report genuinely comply in substance and in spirit with the specific mandate provided to the EPDP, and ensure that registrant rights are protected.

 You can view the ICA’s Comment on the ICANN Public Comment webpage (https://www.icann.org/en/public-comment/proceeding/initial-report-epdp-specific-curative-rights-protections-igos-14-09-2021/submissions/internet-commerce-association-22-10-2021) download it, ICA IGO Public Comment on EPDP Initial Report – October 22, 2021 and below is the Executive Summary of the ICA’s Comment.

 Executive Summary

• Preliminary Recommendation #3 – exempting IGOs from the usual requirement of agreeing to a Mutual Jurisdiction for a challenge to a UDRP transfer without guaranteeing the right of a registrant to have its case heard on the merits – is unjustified and should not be accepted by the GNSO. By exempting IGOs from agreeing to the Mutual Jurisdiction requirement, registrants are left with the very real possibility that a national court will refuse to assume jurisdiction in a post-UDRP action to overturn a UDRP transfer order; leaving the registrant without any meaningful redress or ability to have its case heard on the merits.
• The proposal (Option 1 under Recommendation #4) to eliminate all substantive recourse for errant UDRP and URS decisions in the event that an IGO successfully avoids a court proceeding by asserting immunity after ICANN has stripped away the Mutual Jurisdiction requirement is unconscionable and effectively repudiates the GNSO’s mandate to the EPDP which inter alia, requires that any policy option preserve registrants’ rights to judicial review. Such a right to judicial review can only entail a substantive review, not merely an opportunity to receive a dismissal.
• Option 2 under Recommendation #4 is the only genuine option between it and Option 1 however it is unfortunately premised on the unfair and undesirable exemption from Mutual Jurisdiction under Recommendation 3. For that reason and because they are both inferior to the original Recommendation 5 from the IGO PDP, we cannot support Option 1 or Option 2, however as between the two, Option 2 at least does not unconscionably deprive the registrant of all recourse. Therefore if it comes down to a choice solely between Option 1 and Option 2, we would prefer and support Option 2.
• It is premature to decide whether to impose any arbitral procedure when the nature of the arbitral procedure hasn’t even yet been identified. The selection of an arbitration provider and the appointment of arbitrators are not minor features of arbitration and can contribute to or even determine the outcome. Therefore, the design of any arbitral procedure cannot be left to an Implementation Review Team as this is not a matter of implementation but rather a matter of substantive policy. Any post-UDRP or post-URS arbitral process should follow as close as possible the robust procedures and safeguards available in a credible national court.
• The UDRP is a delicate procedure that cannot sustain ad hoc policy revisions without examining how they would affect and work with the existing and remaining procedures. The RPM Working Group is the group that has the requisite expertise to fully and comprehensively consider any proposed IGO-centric revisions within the overall UDRP.
• Any new, untried, and untested procedures for IGOs should be subject to a sunset clause that automatically repeals such provisions unless a preemptive decision is made based upon evidence, consultation, and Consensus to maintain it.