[council] Here it is again...

[Amadeu Abril i Abril <Amadeu@nominalia.com>]

Hi pNCers,

At 22:47 my time (CET) I ent to this list a mail containing both a text and a
word versions of the text we are submitting to ICANN (vote; recommendations;
and supporting documentation).

For unkown reasons it never hit the list (Elisabeth, is there a size limit for council@dnso.org?).

Here it is again, only in text format.

Unfortunately we don't have time left for coments. It is nearly 6:00pm PST and
I will be forarding this to ICANN BoD in a few minutes. 

Pleae review the text and if you find inacuracies, mistakes or
misrepresentaitons (which Jonathan and I can assure would be involuntary ;-))
pleae send your comments to the list. In case they are relevant I hope that
ICANN will accept the amendments to the text they have to publish ASAP.

Best regards,

Amadeu

********

August 3, 1999

Ms. Esther Dyson, Interim Chairman of the Board
Mr. Michael Roberts, Interim President and Chief Executive Officer
Internet Corporation for Assigned Names and Numbers (ICANN)
4676 Admiralty Way, Suite 330
Marina Del Rey, CA 90202


Dear Esther and Michael:

In accordance with the Resolutions adopted by the Interim Board of ICANN in
Berlin on May 27, 1999, charging the ICANN Domain Names Supporting
Organization (DNSO) with the task of submitting its recommendations with
respect to Chapter 3 of the WIPO Final Report and a Uniform Dispute Resolution
Policy (UDRP) for registrars in the .com, .net and .org TLDs, to the ICANN
Board; and pursuant to the authority vested in the Provisional Names Council
(pNC) of the DNSO by the further Resolution adopted by the Interim Board of
ICANN in Berlin to the effect that the Names Council representatives chosen by
the provisionally recognized Constituencies shall constitute the provisional
Names Council, with all the powers set forth in the Bylaws other than the
selection of Directors (pursuant to Section 2(e) of Article VI-B of the
Bylaws), the pNC of the ICANN Domain Names Supporting Organization (DNSO)
makes the following submission to the ICANN Board as a result of the study
conducted by Working Group A (WG-A) on Chapter 3 of the WIPO Final Report (and
associated Annexes) and the pNC vote on WG-A’s Final Report dated July 29, 1999.


1.	The pNC Vote

The pNC voted pursuant to Article VI-B, Section 2 (d) of ICANN’s Bylaws on the
Final Report of WG-A (posted at
<http://www.dnso.org/dnso/notes/19990729.WGA-report.html>) on July 30 to
August 3, 1999.  The vote is publicly archived and may be accessed at
<http://www.dnso.org/votes/vote01/Archives/>.  

The ballot allowed pNC members to submit dissenting opinions in support of a
vote against any or all of the recommendations in the WG-A Final Report, and
these opinions are attached hereto as part of the supporting documentation
following the pNC recommendations below.  (They may also be accessed in the
vote archives at the site given above).  

The electorate consisted of eighteen pNC members.  The results of the vote are
as follows:  

Fifteen pNC members participated in the vote in time for the August 3, 1999,
9:00 EST deadline.  A sixteenth member voted after this deadline had passed,
and two members did not vote.

Ten members voted in favour of submitting the whole report to the ICANN Board
without reservation. The pNC member who voted after the deadline also favoured
the submission of the whole report.  

Three further members voted in favour of submitting the whole report, but
expressed partial dissenting opinion.

Two further members voted in favour of submitting some recommendations, but
not others, as detailed below:

Recommendation 1)
- fourteen eligible votes in support, one late vote in support, three partial dissents,
- one vote against;

Recommendation 2)	
- all fifteen eligible votes in support, one late vote in support, four
partial dissents and/or comments;

Recommendation 3)
- all fifteen eligible votes in support, one late vote in support, three
partial dissents and/or comments;

Recommendation 4)
- all fifteen eligible votes in support, one late vote in support, five
partial dissents and/or comments;

Recommendation 5)	
- thirteen eligible votes in support, one late vote in support, 
- two votes against
		  	

In sum, more than two-thirds, of the pNC voted to forward the set of
recommendations contained in the WG-A Final Report to the ICANN Board as a
community consensus recommendation.  

Accordingly, the consensus of the pNC seems to be in favour of the WG-A Final
Report, but with the overall caveat that the shortness of time available to
WG-A to solicit input from the DNSO constituencies, as well as lack of input
from the General Assembly (GA) leaves a question as to what the consensus of
the DNSO really is.  As noted in the WG-A Preliminary and Final Reports, WG-A
was asked to complete its work within an expedited time-frame, beginning at a
time when the pNC lacked a full complement of members and the administrative /
procedural framework for WG activity was not developed.  This latter process
is still ongoing.  In addition, a very limited number of comments were
received from the GA during the RFC period in which the WG-A Preliminary
Report was posted for public review and discussion (at
<http://www.dnso.org/dnso/notes/19990707.WGA1.html>). 

WIPO’s RFC process, which took place over a ten-month period, involved
extensive international consultation and RFCs that were not possible in the
few weeks allotted to WG-A.  The WIPO Final Report may be considered to
represent a consensus of most interested stakeholders.  WG-A was aware of this
fact and took it into account in its own consultation process and in the
preparation of its Preliminary and Final Reports.  ICANN is therefore
encouraged to consider the dissents to WG-A’s recommendations in light of both
the WG-A process and the more extensive WIPO consultation process, and to
decide whether these dissents are relevant in this context to the course of
action ICANN determines it should take.  

It is the opinion of the pNC, as expressed in the vote, that the ICANN Board
of Directors adopt the following recommendations, giving effect in that way to
the White Paper requirement that the Interim Board consider "as soon as
possible" the recommendations on dispute resolution policy arising from the
WIPO process.  This is especially relevant, and urgent, at a time when,
following Amendments 11 & ff to the Co-Operative Agreement, and the subsequent
Registrar Accreditation Program, a number of accredited registrars need
assistance and guidance on these issues before entering the gTLD domain name
registration market and turning it into a competitive one.  


2.	WG-A’s Recommendations to ICANN Respecting the Implementation of the WIPO
Dispute Resolution Process

1) 	Generally, the recommendations of Chapter 3 of the WIPO Report relating
	to Uniform Dispute Resolution Procedures (UDRP) should be put into place as
	soon as possible after the ICANN Board meeting in Santiago, Chile, subject to
recommendation 4) below, and all Registrars should be required to adopt a
UDRP, namely, that recommended by WIPO, until such time as ICANN decides that
it should be replaced.


2)	The DNSO recommends the adoption and implementation of a uniform  Dispute
Resolution Policy.  Such  DRP should be uniform across current gTLDs, approved
by ICANN and implemented on a gTLD-wide level in a uniform way.


3)	Uniformity should affect both material or substantive rules as well as
procedural rules with an effect on substantive rights of the parties.  Some
minor, administrative, differences could be implemented in procedures followed
by different UDRP Service Providers. In this regard we recommend that ICANN
establish an accreditation process for DRP Service providers based on
objective criteria, and that all accredited DRP Service Providers should be
incorporated by the Registration Authorities in their Domain Name Registration
Agreements with registrants. 

4)	For at least the balance of 1999, this UDRP should apply only to bad-faith
/ abusive domain name registrations (cybersquatting) on a mandatory basis, but
without precluding the parties’ ability to litigate the dispute.  Further,
once proof of litigation is submitted to the WIPO panel, it should immediately
cease its decision-making process pending the outcome of the litigation. 
However, in response to a number of procedural and substantive concerns raised
during WG-A’s consultation process, it is recommended that WIPO be requested
to clarify the following issues listed below, and that its recommendations and
conclusions in relation to these issues should then be put back before ICANN
for evaluation by way of this, or another WG established for this purpose, for
a two week period, before being implemented.  However, this should not delay
implementation of the WIPO UDRP:  

a)	Establishing a "user’s guide" to the arbitral process, possibly to be
tested on focus groups prior to widespread implementation of the WIPO UDRP;

	b)      	The need to address the situation wherein a domain name registrant
who has been unsuccessful in the ADR process is effectively prevented from
"appealing" the result in a court due to the absence of a cause of action in
contract, tort, regulation, statute or constitutional right.  It was noted
that there is an imbalance in the WIPO process in that an unsuccessful
complainant will always be able to judicially challenge an ADR result by
virtue of the jurisdiction of the registry being imposed over the dispute by
the WIPO Report;

	c)	The need to re-examine and possibly refine the procedural timetable with
respect to notice of commencement of proceedings and the prescribed period in
which to submit a response.   While the notice provisions should not be
substantially changed or the response time extended at this time, it is
recommended that WIPO be asked to develop criteria for reasonable grounds upon
which an extension of time for response may be requested by the registrant;

	d)	In response to the need to clarify the arbitrators’ duty to ascertain the
applicable law in a dispute and to apply it, WIPO should be asked to consider
the development of an independent set of rules for the UDRP that is not based
on civil or common law, and that does not rely on any existing statute or body
of national case law;

	e)	The need to more clearly articulate the standard of proof in paragraph 171
of the Final Report, and associated sections of Annexes IV and V.

	5)	It is recommended that early in 2000 *, WIPO should be asked to provide a
timetable in which it can make available its UDRP with an adequate number of
arbitrators from a number of different countries who speak a cross-section of
languages, trained in online arbitration, making it possible to offer these
dispute resolution services on a voluntary basis to disputants having
trade-mark / domain name disputes.  It is recommended that such voluntary
dispute resolution shall not preclude access to courts unless both parties to
the dispute contract out of such access, in which case the results of the
online dispute resolution process will be final and binding.

* WG-A Co-Chairs Note:	The insertion of the 2000 time frame was one point
where there was a lack of unanimity among the members of the pNC.  Even though
the specific date was approved by the requisite majority, it is felt that the
recommendation may be amended in accordance with the expressed concerns to
replace the 2000 time frame with "as soon as ICANN considers it reasonable and
practicable" without materially altering the underlying substance of this
recommendation.  The original intent was to allow for a period of time after
implementation of the UDRP during which its operation could be evaluated and
any shortcomings addressed. Based on this experience and any required
modifications, the UDRP could be expanded to non-cybersquatting type disputes
on a voluntary basis.  


Respectfully submitted:

Members of the pNC.
JCC/AA/VC
 Supporting Documentation

In further accordance with Article VI-B, Section 2 (d) of ICANN’s Bylaws, the
following materials and information about the WG-A process are provided to
assist the ICANN Board in its review of WG-A’s recommendations:

A)	Final Report of WG-A

B) Dissenting Opinions from the Vote of the pNC

C)	Statement from Jon Englund on the Vote of the pNC

D)	Comments to the Preliminary Report RFC and Final Report

E)	Report on the Formation of WG-A

F)	Personal Comments from Jonathan C. Cohen, Co-Chair of WG-A


 A) Final Report of WG-A

WG-A’s recommendations, along with explanatory commentary are contained in the
following authoritative text of the Final Report of WG-A to the Names Council,
which was considered by the pNC for its vote on July 30 - August 3, 1999 and
posted at <http://www.dnso.org/dnso/notes/199990729.WGA-report.html>.  WG-A
Co-Chairs note: this document was posted before certain housekeeping changes
were made to the text.  These amendments are reflected in the text below.  Any
discrepancies between the posted text and that below should be resolved in
favour of the latter.  

We encourage the ICANN Board to review the full Final Report, as well as the
report on the formation of WG-A set out in section C) below, in order to
understand the context in which its recommendations (and the dissents thereto)
are made.


WG-A Final Report to the Names Council - July 29, 1999 - REVISED DRAFT *  

Introduction

The preliminary report of WG-A was posted on July 8, 1999 for public comment
after approximately three weeks of consultation.  At the time the preliminary
report was released, the point was made that this time frame was very short in
relation to the breadth and complexity of the subject matter.  It was also
noted that the scope of consultation and ability of people to participate was
affected by the time given to WG-A in which to prepare its report.  

The RFC period for the WG-A preliminary report was approximately two and a half
weeks, with submissions invited to be posted on the General Assembly (GA) list,
the WG-A list or the list for WIPO comments, all of which were accessible from
http://www.dnso.org.   WG-A notes that the number of comments received was very
limited, and this could be due to the short time period available for the RFC
process mandated by the deadline for submission of the Names Council’s report
to ICANN by July 31, 1999.  Of the few comments received, it is noteworthy that
the submissions by Professor Michael Froomkin represented a detailed and
thoughtful analysis, and have been of considerable assistance to WG-A in
formulating these recommendations to the Names Council.  

While some commentators have suggested areas where the WIPO process may be
refined, nothing has been said that differs significantly from the conclusions
drawn in the preliminary report, namely that the WIPO Uniform Dispute
Resolution Process (UDRP) should be implemented on a mandatory basis in respect
of disputes involving "cybersquatting" or "abusive / bad-faith" registrations.

Further, although there are legitimate concerns about expanding the UDRP to
other types of disputes on a voluntary basis until such refinements to the
process have been
made, there was no argument presented that would militate absolutely against
such eventual expansion, provided that the disputants’ recourse to the courts
was not precluded.


WG-A’s Recommendations to the Names Council:

1) Generally, the recommendations of Chapter 3 of the WIPO Report relating
to Uniform Dispute Resolution Procedures (UDRP) should be put into place as
soon as possible after the ICANN Board meeting in Santiago, Chile, subject to
recommendation 2) below, and all Registrars should be required to adopt a UDRP,
namely, that recommended by WIPO, until such time as ICANN decides that it
should be replaced.

2) The DNSO recommends the adoption and implementation of a uniform  Dispute
Resolution Policy.  Such  DRP should be uniform accross current gTLDs,
approved by ICANN and implemented on a gTLD-wide level in a uniform way.


Comment: This uDRP is to be viewed as an alternative to litigation, as a fast,
inexpensive and Internet-friendly alternative (at least in relative terms) to
wordlwide legal systems and jurisdictions.

The main goals of such a uDRP would be increasing legal certainty, providing a
solution in cases where multijurisdictional conflicts prevent actual
court-based dispute resolution and prevent forum shopping.  In this regard it
is viewed as an alternative, not a substitute for Court litigation, which
should remain open to the parties. 

Even if the DNSO remains open to consider gTLD-specific DRPs, or variations
thereof for future for certain new gTLDs in light of possible specific uses,
characteristics or charters, we recommend a uniform DRP across the current 
three gTLDs regarding both their undifferentiated use and the nature of the DRP
being recommended. Moreover, such a uDRP should be more than a series of
similar or even identical policies proposed by each registrar, a gTLD-wide
(or, in the current situation, a registry-wide) DRP approved by ICANN


3) Uniformity should affect both material or substantive rules as well as
procedural rules with an effect on substantive rights of the parties. Some
minor, administrative, differences could be implemented in procedures followed
by different uDRP Service Providers. In this regard we recommend that ICANN
establishes an accreditation process for DRP Service providers based on
objective criteria, and that all accredited DRP Service Providers should be
incorporated by the Registration Authorities in their Domain Name Registration
Agreements with registrants.