Final Report of the Expedited Policy Development
Process on Specific Curative Rights Protections forInternational Governmental Organizations (IGOs)

Status of this Document
This is the Final Report containing final recommendations from the GNSO’s Expedited Policy
Development Process (EPDP) on Specific Curative Rights Protections for International
Governmental Organizations (IGOs). This Final Report has been prepared for the GNSO
Council’s consideration of the EPDP recommendations, in accordance with the ICANN Bylaws
and the GNSO’s Policy Development Process Manual.

This Final Report will be translated into different languages; please note that only the English version is
authoritative.

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Date: 2 April 2022

PreambleThis Final Report is part of broader work that has been undertaken by the ICANN community tofacilitate the protection of IGO identifiers in the domain name system (DNS). The scope of work
described in this report is limited to the topics and considerations outlined by the GNSO Council
in its instructions to the EPDP team, via a motion proposed and carried during the GNSO
Council teleconference meeting on 23 January 2020. This report describes the EPDP team’s
deliberations and sets out its final recommendations on specific policy issues arising in cases
where, following an initial decision in favor of an IGO in a proceeding under either the Uniform
Domain Name Dispute Resolution Policy or the Uniform Rapid Suspension procedure, the losing
registrant seeks a review of the merits of the case in court and the court declines to proceed on
the basis of IGO privileges and immunities. Following its review of all Public Comments received
on its Initial Report, the EPDP team has finalized its policy recommendations and now submits
this Final Report to the GNSO Council.

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Table of Contents
Table of Contents
1 EXECUTIVE SUMMARY

42 FINAL RECOMMENDATIONS

7

3 SUMMARY OF DELIBERATIONS

18

4 CONCLUSIONS AND NEXT STEPS

23

5 RELEVANT PROCESS & ISSUE BACKGROUND

24

6 APPROACH TAKEN BY THE EPDP TEAM

28

7 ANNEX A – PRINCIPLES REGARDING ARBITRAL RULES

31

8 ANNEX B – SCOPE OF WORK (AS APPROVED BY THE GNSO COUNCIL)

34

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1 Executive Summary
1.1 Introduction
On 23 January 2020, the GNSO Council approved an Addendum to the Review of All
Rights Protection Mechanisms (RPM) Policy Development Process (PDP) Charter thatcreated an IGO Work Track. The GNSO Council initiated this work to consider “whether
an appropriate policy solution can be developed that is generally consistent with [thefirst four recommendations from the GNSO’s IGO-INGO Access to Curative Rights PDP]
and:a. accounts for the possibility that an IGO may enjoy jurisdictional immunity incertain circumstances;b. does not affect the right and ability of registrants to file judicial proceedings in acourt of competent jurisdiction;c. preserves registrants' rights to judicial review of an initial [Uniform Domain
Name Dispute Resolution Policy or Uniform Rapid Suspension decision; andd. recognizes that the existence and scope of IGO jurisdictional immunity in any
particular situation is a legal issue to be determined by a court of competentjurisdiction.”
Following the GNSO Council’s appointment of Chris Disspain as the IGO Work Track
Chair and confirmation of their representatives by interested GNSO Stakeholder Groups,
Constituencies, Advisory Committees, other Supporting Organizations and IGOs in
accordance with membership requirements outlined in the Addendum, the IGO Work
Track commenced its work in February 2021.
The GNSO Council’s decision to create the IGO Work Track followed from its 18 April
2019 resolution to approve only the first four recommendations from the IGO-INGO
Access to Curative Rights PDP, which had submitted its Final Report to the GNSO Council
in July 2018. The GNSO Council had elected not to approve Recommendation #5 fromthe PDP, preferring to refer the matter at the time to the RPM PDP for its Phase 2 work.
In August 2021, the GNSO Council made the procedural decision to continue the work of
the IGO Work Track via an Expedited Policy Development Process, since Phase 1 of the
RPM PDP had concluded but Phase 2 had not yet been initiated, pending a review of the
PDP Charter by the GNSO Council, which remains outstanding. The GNSO Council
confirmed that the scope of work for the EPDP team was not affected in any way by thisprocedural change, as the original Addendum became in effect the EPDP team Charter.
Recommendation #5 from the IGO-INGO Access to Curative Rights PDP attempted toaddress a situation where an IGO has prevailed in a Uniform Domain Name Dispute

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Resolution Policy (UDRP) or Uniform Rapid Suspension (URS) proceeding, following
which the losing registrant files suit in a court and the IGO asserts immunity from thejurisdiction of that court. Recommendation #5 provided that, in such a situation, theoriginal UDRP or URS panel decision is to be set aside. The effect of implementing
Recommendation #5 would be to put the parties to the dispute in their original
situations, as if the UDRP or URS proceeding in which the IGO had prevailed had neverbeen commenced.
During the GNSO Council’s deliberations over the Final Report from the IGO-INGO
Access to Curative Rights PDP, concerns were expressed as to whether
Recommendation #5 will require a substantive modification to the UDRP and URS as
well as result in a potential reduction of the existing level of curative protections
currently available to IGOs – such as they are; i.e., at present IGOs must agree to submit
to the jurisdiction of a court at “either (a) the principal office of the registrar (provided
that the domain name registrant has submitted in the Registration Agreement to thatjurisdiction for court adjudication of disputes concerning or arising from the use of thedomain name) or (b) the domain name registrant's address as shown for the registrationof the domain name in the concerned registrar's WHOIS database at the time theComplaint is submitted to a dispute resolution service provider (“Mutual Jurisdiction”).
IGOs are concerned that the agreement to this “Mutual Jurisdiction” clause could beconsidered an express or implied waiver of the IGOs’ immunities under existing nationallaws. The Curative Rights PDP had been chartered to determine “whether to amend the
UDRP and URS to allow access to and use of these mechanisms by IGOs and INGOs …orwhether a separate, narrowly-tailored dispute resolution procedure at the second level
modeled on the UDRP and URS that takes into account the particular needs and specificcircumstances of IGOs and INGOs should be developed”, and Recommendation 5 wasviewed by many as reducing access to curative rights mechanisms by IGOs. As a result,the GNSO Council decided that additional policy work was needed on the specific issue
that Recommendation #5 had been intended to resolve.

1.2 Final Recommendations
The EPDP team has arrived at five final recommendations to address the issues within
the scope of its work, in accordance with the GNSO Council’s instructions as
documented in its Charter.
The EPDP team reached final agreement on the following points: (1) adding a definition
of “IGO Complainant” to the current Rules applicable to the UDRP and URS, to facilitatean IGO’s demonstration of rights to proceed against a registrant (in the absence of aregistered trademark); and (2) including an option for voluntary arbitration following
the initial UDRP or URS panel decision in favor of an IGO Complainant, to resolve theissue of how to recognize an IGO’s jurisdictional immunity while preserving a
registrant’s right to choose to go to court.

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1.2.1 Recommendation regarding UDRP and URS Eligibility
Requirements for IGOs
The first recommendation from the EPDP team (Recommendation #1) addresses aninitial challenge that IGOs face under the current UDRP and URS requirement for acomplainant to have trademark rights in order to proceed against a domain nameregistrant. In this regard, the EPDP team is proposing specific modifications to the Rules
applicable to the UDRP and URS that will add a definition clarifying the criteria for “IGO
Complainants”. The EPDP team believes that adding this definition will provide clearer
eligibility requirements for IGOs in relation to the need to show that they haveadequately demonstrated rights to proceed with a UDRP or URS complaint.

1.2.2 Recommendations to Address IGO Immunities While
Preserving a Registrant’s Right to Seek Review of a UDRP or
URS Decision Issued Against It
Together with Recommendation #1, Recommendations #2, #3, #4, and #5 from the
EPDP team comprise a set of related, interdependent recommendations. This set ofrecommendations is intended to achieve an appropriate policy balance between respect
for an IGO’s privileges and immunities (specifically, immunity from judicial process) andmaintaining a registrant’s right to file a court case seeking judicial consideration of themerits of the case where a UDRP or URS decision has been issued against the registrant.

1.3 Summary of Deliberations to Date
Section 3 of this report outlines the EPDP team’s deliberations regarding how it
considered and developed the final recommendations.

1.4 Next Steps
This Final Report will be delivered to the GNSO Council for its consideration of therecommendations developed through this EPDP.

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2 Final Recommendations
The EPDP team has kept the GNSO Council’s instructions regarding consideration of an
appropriate policy solution for Recommendation #5 from the IGO-INGO Access toCurative Rights PDP at the forefront in its work. However, most of the EPDP teamconcluded early on that a feasible and appropriate policy solution cannot be crafted
simply by looking at that recommendation in isolation. Although Recommendation #5 isconcerned with the outcome of a dispute resolution process where the affected IGO
asserts immunity from jurisdiction, most of the EPDP team agreed that, in order toaddress this specific issue, it needed to first determine how and which IGOs are able tofile a complaint under the relevant dispute resolution mechanism. In this regard, EPDP
team members noted that, due to national State obligations under the Paris Convention
for the Protection of Industrial Property, IGOs may not own or hold registeredtrademarks1 in their names, acronyms, or other identifiers.
This presents a challenge for such IGOs, as there is a specific requirement under the
UDRP and URS that a complainant “must demonstrate that the domain name at issue isidentical or confusingly similar to a trademark in which the complainant has rights”. As aresult of its discussions, the EPDP team proposes Recommendation #1, which it believes
will clarify eligibility requirements for IGOs to demonstrate (unregistered) rights under
the UDRP and URS.
To address the specific issue under Recommendation #5 from the IGO-INGO Access toCurative Rights PDP, the EPDP team proposes a further set of recommendations(Recommendations #2, #3, #4, and #5) that, in combination with Recommendation #1,
are intended to be “interdependent” (as contemplated by Section 13 of the GNSO’s PDP
Manual2). Most of the EPDP team believes that this set of recommendations is
responsive to the GNSO Council’s directions that the proposed policy solution be“generally consistent” with the four other recommendations from the IGO-INGO Accessto Curative Rights PDP.

1 IGOs do not engage in trade or commerce in the strict sense for which trademarks are generally

registered and used.
2 See https://gnso.icann.org/sites/default/files/file/field-file-attach/annex-2-pdp-manual-24oct19en.pdf (“Although the GNSO Council may adopt all or any portion of the recommendations contained in
the Final Report, it is recommended that the GNSO Council take into account whether the PDP Teamhas indicated that any recommendations contained in the Final Report are interdependent. The GNSO
Council is strongly discouraged from itemizing recommendations that the PDP Team has identified asinterdependent”.)

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2.1 Final Recommendations
The GNSO Council had decided not to approve the original Recommendation #5 fromthe IGO-INGO Access to Curative Rights Protection Mechanisms PDP. The EPDP Team’s
collective understanding is that the GNSO Council thereby rejected the original
Recommendation #5 and, instead, tasked the RPM PDP Working Group to develop apolicy solution for the problem that the original Recommendation #5 was intended tosolve and that would be generally consistent with Recommendations #1 - #4 from that
PDP. The EPDP Team believes that its final recommendations (below) address the issues
raised by IGOs’ jurisdictional immunity in relation to court proceedings following a UDRP
or URS decision, and that these recommendations are responsive to the GNSO Council’s
directions that the proposed policy solution be “generally consistent” with
Recommendations #1 - #4 from the IGO-INGO Access to Curative Rights PDP. As such,
the EPDP Team recommends that the GNSO Council approve the following final
Recommendations #1 - #5 from this EPDP.
To address the specific issue under Recommendation #5 from the IGO-INGO Access toCurative Rights PDP, the EPDP team is proposing the following single package ofrecommendations.
The EPDP team wishes to emphasize that its final recommendations are to be read in
the following context:• The inclusion of an arbitration option in the UDRP and URS does not replace,
limit, or otherwise affect the availability of court proceedings to either party, or,in respect of the URS, the ability to file an appeal within the URS framework.
Either party continues to have the right to file proceedings in a court, up to thepoint in time when an arbitration proceeding is commenced (if any).
• The inclusion of an arbitration option in the UDRP and URS does not affect the
timelines for filing or for implementing the relevant remedy, unless otherwise
expressly stated in the recommendations below.
The EPDP team understands that under the GNSO's PDP Manual, in the absence of
exceptional circumstances, the GNSO Council must direct the creation of an
Implementation Review Team (IRT) to assist ICANN org staff in developing
implementation details. Due to the complexity of the legal issues involved, the EPDP
team advises the GNSO Council to ensure that the IRT includes members familiar withthe substantive and procedural rules governing arbitration proceedings, in line with
Principle IC of the IRT Principles & Guidelines.

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2.1.1 Recommendation regarding UDRP and URS Eligibility
Requirements
Recommendation #1: Definition of “IGO Complainant”
The EPDP team recommends that the UDRP Rules and URS Rules be modified in thefollowing two ways:i.

Add a description of “IGO Complainant” to section 1 (i.e., the definitions sectionof both sets of Rules):“‘IGO Complainant’ refers to:(i) an international organization established by a treaty, and which possesses
international legal personality; or(ii) an ‘Intergovernmental organization’ having received a standing invitation,
which remains in effect, to participate as an observer in the sessions and thework of the United Nations General Assembly; or(iii) a Specialized Agency or distinct entity, organ or program of the United
Nations3.”ii.

Add the following explanatory text to UDRP Rules Section 3(b)(viii), URS Section
1.2.6 and URS Rules Section 3(b)(v):“Where the Complainant is an IGO Complainant, it may show rights in a mark bydemonstrating that the identifier which forms the basis for the complaint is usedby the IGO Complainant to conduct public activities in accordance with its statedmission (as may be reflected in its treaty, charter, or governing document). Suchuse shall not be a token use.”

Consensus level designation for Recommendation #1: Full Consensus
Explanatory Text:
The EPDP team acknowledged that there is no single authoritative source fordetermining whether an organization is an IGO. To ensure that its recommendations arelimited to a policy solution for the specific issue it was tasked to address, the EPDP teamthought it necessary to ensure that its recommendations apply only to thoseorganizations for which there is demonstrable factual proof of their status as IGOs. In
arriving at its final definition for an “IGO Complainant”, the EPDP team analyzed theUnited Nations system and documentation, relevant provisions in international treaties

3 A visual depiction of the United Nations system is available here, including its Specialized Agencies

and various programs: https://www.un.org/en/pdfs/un_system_chart.pdf.

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(such as Article 6ter of the Paris Convention for the Protection of Industrial Property),and GAC advice.
The EPDP team also believes it is critical to maintain the UDRP and URS standing
requirement that a complainant must have rights in a trademark or service mark withwhich the registrant’s domain is identical or confusingly similar. In the case of IGO
Complainants (as defined) who may not possess a registered trademark in the relevant
IGO identifier, the EPDP team’s recommendation makes it clear how such complainants
address that standing requirement by proving unregistered rights that are functionallyequivalent to a trademark.

2.1.2 Recommendations to Address IGO Immunities While
Preserving a Registrant’s Right to Seek Review of a UDRP or
URS Decision Issued Against It
Recommendation #2: Exemption from Submission to “Mutual Jurisdiction”(a) The EPDP team recommends that an IGO Complainant (as defined underRecommendation #1) be exempt from the requirement under Section 3(b)(xii) of
the UDRP Rules and Section 3(b)(ix) of the URS Rules.
(b) The EPDP team recommends that, when forwarding a complaint filed by an IGO
Complainant to the respondent (pursuant to Paragraph 2(a) of the UDRP or
Paragraph 4.2 of the URS, as applicable), the relevant UDRP or URS provider
must also include a notice informing the respondent;(i) of its right to challenge a UDRP decision canceling or transferring the domain
name, or a URS Determination rendered in favor of an IGO Complainant, by filinga claim in court;(ii) that, in the event the respondent chooses to initiate court proceedings, the
IGO Complainant may assert its privileges and immunities with the result thatthe court may decline to hear the merits of the case on the basis of IGO
privileges and immunities; and(iii) that the respondent has the option to agree to binding arbitration to settle
the dispute at any time, including in lieu of initiating court proceedings or, if it
files a claim in court, where the court has declined to hear the merits of the case.
Consensus level designation for Recommendation #2: Full Consensus
Explanatory Text:

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This recommendation addresses the GNSO Council’s instructions that the EPDP team’s
recommended policy solution must “[account] for the possibility that an IGO may enjoy
jurisdictional immunity in certain circumstances; … not affect the right and ability ofregistrants to file judicial proceedings in a court of competent jurisdiction whether
following a UDRP/URS case or otherwise; and … [recognize] that the existence and scopeof IGO jurisdictional immunity in any particular situation is a legal issue to be determinedby a court of competent jurisdiction”.
Early in its deliberations, the EPDP team agreed on the need to balance the rights andinterests of registrants and IGOs. In finalizing its recommendation to exempt IGO
Complainants from the requirement to agree, with respect to any challenge to a UDRP
decision or URS Determination, to submit to the jurisdiction of the courts in at least one
specified Mutual Jurisdiction (as the term is defined in the UDRP Rules and URS Rules),the EPDP team thought it important to ensure that registrants who wish to challenge a
UDRP or URS outcome in court be made aware that an IGO Complainant’s exercise of its
privileges and immunities may mean that the court declines to hear the registrant’s
case.
Recommendation #3: Arbitral Review following a UDRP Proceeding
The EPDP team recommends that the following provisions be added to the UDRP toaccommodate the possibility of binding arbitration to review an initial panel decision
issued under the UDRP:i.

When submitting its complaint, an IGO Complainant shall indicate that it agrees,
if the registrant also agrees, to have the final determination of the outcome of
the UDRP proceeding settled through binding arbitration.

ii.

In communicating a UDRP panel decision to the parties where the complainant is
an IGO Complainant, the UDRP provider shall provide both parties withinformation regarding the applicable arbitral rules.

iii.

In accordance with Paragraph 4(k) of the UDRP, the relevant registrar shall waitten (10) business days (as observed in the location of its principal office) before
implementing a UDRP panel decision rendered in the IGO Complainant’s favor.
The registrar shall stay implementation if, within that period, it receives official
documentation that the registrant has either initiated court proceedings in its
location or in the location of the registrar’s principal office or has submitted arequest for or notice of arbitration.

iv.

Where the relevant registrar has received a request for or notice of arbitration, it
shall stay or continue to stay, as applicable, implementation of the UDRP panel
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arbitration or other satisfactory evidence of a settlement or other final
resolution of the dispute.
v.

Where the registrant initiates court proceedings and the court declines to hear
the merits of the case on the basis of IGO privileges and immunities, theregistrant may submit the dispute to binding arbitration within ten (10) businessdays from the court order declining to hear the merits of the case, by submittinga request for or notice of arbitration to the competent arbitral institution with acopy to the relevant registrar and UDRP provider. Where the registrant does not
submit a request for or notice of arbitration to the competent arbitral institution(with a copy to the registrar, UDRP provider and the IGO Complainant) within ten(10) business days from the court order declining to hear the merits of the caseon the basis of IGO privileges and immunities, the original UDRP decision will be
implemented by the registrar.

vi.

Where a registrant decides to submit the dispute to binding arbitration, it shallnotify the relevant registrar prior to initiating the arbitration proceeding with thearbitral tribunal.

vii.

The arbitral institution to whom the registrant submits a request for or notice ofarbitration shall notify the IGO Complainant of the registrant’s decision toinitiate arbitration.

Consensus level designation for Recommendation #3: Full Consensus
Implementation Guidance:
The EPDP team believes that the selection of the appropriate arbitral rules andprovider(s) is a matter more appropriately addressed during implementation. To that
end, the EPDP team has developed a set of policy principles which are set out in Annex
A of this Final Report. These policy principles are intended to be an overarchingguidance framework for the Implementation Review Team that will be formed to advise
ICANN org on the implementation of approved policies from this EPDP.
Recommendation #4: Arbitral Review following a URS Proceeding
The EPDP team recommends that the following provisions be added to the URS toaccommodate the possibility of binding arbitration to review a Determination madeunder the URS:i.

When submitting its complaint, an IGO Complainant shall indicate that it agrees,
if the registrant also agrees, to have the final determination of the outcome of
the URS proceeding settled through binding arbitration.

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ii.

In communicating a URS Determination to the parties where the complainant is
an IGO Complainant, the URS provider shall provide both parties withinformation regarding the applicable arbitral rules.

iii.

Where the registrant initiates court proceedings and the court declines to hear
the merits of the case on the basis of IGO privileges and immunities, theregistrant may submit the dispute to binding arbitration within ten (10) businessdays from the date of the court order declining to hear the merits of the case, bysubmitting a request for or notice of arbitration to the competent arbitralinstitution, with a copy to the URS provider. The relevant domain name(s) willremain suspended throughout the pendency of any such arbitration proceeding.

iv.

Where the registrant files an appeal under URS Section 12 and does not prevailin the appeal, it may submit the dispute to binding arbitration within ten (10)business days from the date of the appeal panel’s decision, by submitting arequest for or notice of arbitration to the arbitral institution, with a copy to the
URS provider and the IGO Complainant. The relevant domain name(s) will remainsuspended throughout the pendency of any such arbitration proceeding.

v.

Where a registrant decides to submit the dispute to binding arbitration, it shallnotify the relevant URS provider prior to initiating the arbitration proceedingwith the competent arbitral tribunal.

vi.

The arbitral provider to whom the registrant submits a request for or notice ofarbitration shall notify the IGO Complainant of the registrant’s decision toinitiate arbitration.

Consensus level designation for Recommendation #4: Full Consensus
Implementation Guidance:
The EPDP team believes that the selection of the appropriate arbitral rules andprovider(s) is a matter more appropriately addressed during implementation. To that
end, the EPDP team has developed a set of policy principles which are set out in Annex
A of this Final Report that is intended to serve as a guidance framework for the
Implementation Review Team that will be formed to advise ICANN org on theimplementation of policies from this EPDP that are approved by the GNSO Council andadopted by the ICANN Board.
Recommendation #5: Applicable Law for Arbitration Proceedings
Arbitration will be conducted in accordance with the law as mutually agreed by theparties. Where the parties cannot reach mutual agreement, the IGO Complainant shallelect either the law of the relevant registrar’s principal office or the domain nameholder's address as shown for the registration of the disputed domain name in the

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relevant registrar's Whois database at the time the complaint was submitted to the
UDRP or URS provider. Where the parties cannot reach mutual agreement in a casewhere the domain name was registered through a privacy or proxy service4 and theunderlying registrant’s identity is disclosed as part of the UDRP or URS proceeding, the
IGO Complainant shall elect either the law of the relevant registrar’s principal
office or the law in the location of the underlying registrant. In all cases,
where neither law provides for a suitable cause of action, the arbitral tribunal shallmake a determination as to the law to be applied in accordance with the applicablearbitral rules.
Consensus level designation for Recommendation #5: Full Consensus

NOTE ON RECOMMENDATIONS #1 - #5:
The flow chart below depicts the sequence of events that occur during a UDRP or URS
proceeding, with the additions and changes proposed by the EPDP team highlighted inblue. The flow chart was prepared by the EPDP team for illustrative purposes only, toassist with understanding of the implications of the EPDP team’s final
recommendations. It should not be interpreted as the authoritative source of the EPDP
team’s final recommendations, nor is it an indication of the entire UDRP/URS
procedures. In the event of any inconsistencies or gaps between the flow chart and thetext of the EPDP team’s final recommendations (as set forth above), the text version of
the recommendation shall prevail.

4 The EPDP team has considered the differences between privacy and proxy services (e.g., as expressedin the respective definitions in Sections 1.2 and 1.3 of the Privacy & Proxy Specification in the Registrar
Accreditation Agreement: https://www.icann.org/resources/pages/approved-with-specs-2013-09-17en#privacy-proxy) as well as UDRP Rule 4(b) (concerning timely updates to a respondent’s data,
including as a result of a request by a privacy or proxy service to disclose underlying customer data). As
Recommendation #5 is intended to ensure that the choice of law for an arbitration proceeding is linked
to the actual or underlying registrant and where they are located, the EPDP team has included languagein the recommendation to address a situation where a domain name was registered via a privacy orproxy service.

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Link to full chart
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2.2 Policy Change Impact Analysis
The EPDP team believes that its recommendations, if approved and adopted, will
facilitate access to and use of the UDRP and URS by IGOs while preserving existingregistrant rights. In addition, the EPDP team has developed specific rationale for its
recommendations that it believes demonstrates how its proposed solution isappropriate and proportionate to the problem it was tasked to solve, without modifying
the essential structure or scope of the UDRP or URS, both of which have been or will be
reviewed by the GNSO’s RPM PDP in its Phase 2 work.
The EPDP team understands that, if these recommendations become consensus policy,
the policy will undergo review. Although the GNSO Council is responsible fordetermining when consensus policy reviews take place, the EPDP team suggests that
initiation of a review should be triggered by a certain threshold number of IGO
Complaints rather than conducted at fixed intervals or by calendar date.
The EPDP team believes that a review should include determination of the effectivenessof the policy. The EPDP team therefore proposes that a review include consideration of
the following questions:
•
•
•

•

Did the introduction of a definition of “IGO Complainant” assist IGOs with accessing andusing the UDRP and URS?
Were there instances where IGOs were not able to proceed with a UDRP or URS
complaint for failure to meet the definition of “IGO Complainant”?
Are UDRP and URS providers aware of any instances where a respondent was confusedby the information included with the notice of complaint or opted for arbitration
instead of initiating court proceedings?
Did the changes outlined in recommendations 3 and 4 preserve the registrant’s rights
for judicial review in a court but also provided the option for arbitration instead of courtor subsequent arbitration where an IGO successfully asserted its immunity?

The EPDP team also proposes the following metrics to assist with defining context toassess the effectiveness of the policy:
•
•

•
•
•

Number of UDRP and URS complaints filed by IGOs
Number of UDRP and URS panel decisions in favor of IGO Complainants:o (i) implemented by a registrar after ten (10) business days, without a court or
arbitral proceeding; ando (ii) stayed (i.e., not implemented) by a registrar as a result of thecommencement of arbitration proceedings
Number of UDRP and URS panel decisions involving IGO Complainants where there wasno response from the registrant, and their outcomes
Number of court proceedings filed by the registrant and whether the court assumed or
declined jurisdiction
Number of arbitration proceedings between an IGO Complainant and losing registrant

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The EPDP team recognizes that while some of these suggested metrics may be obtained
from the relevant UDRP and URS service providers and ICANN-accredited registrars, itwill likely be very difficult to obtain accurate counts and reports regarding postUDRP/URS court proceedings. Similarly, obtaining accurate numbers and outcomes ofarbitration proceedings will be extremely difficult, especially where these are not public.
In these cases, it may be necessary to attempt to obtain illustrative data via registrant
and IGO surveys, although the EPDP team acknowledges that the data obtained via suchmeans are likely to be incomplete.

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3 Summary of Deliberations
This Section provides an overview of the deliberations of the EPDP team. The points
outlined below are meant as brief, relevant background information on the group’s
discussions that provide the context for its proposed outcomes. They should not be readas representing the entirety of the deliberations of the EPDP team.
The EPDP team published its Initial Report for Public Comments in September 2021. It
received a total of thirty-three (33) comments, fourteen (14) of which were submitted
by individual commentators, thirteen (13) by organizations (largely from either IGOs ormembers of the domain investor community), with the remaining six (6) filed by one of
ICANN’s recognized community structures (viz., the Business and Intellectual Property
Constituencies, the At Large Advisory Committee (ALAC), the Governmental Advisory
Committee (GAC), the Registrars Stakeholder Group and the Registries Stakeholder
Group)5. The EPDP team used the GNSO’s Public Comment Review Tool to organize thevarious submissions according to each preliminary recommendation contained in theInitial Report. This facilitated the EPDP team’s analysis of each comment andidentification of any new issues, facts or concerns raised by the commentators.
The Public Comment Review Tool and the EPDP team’s discussions of the comments it
received can be reviewed on the EPDP team’s wiki space here.
Between October 2021 (when the Public Comment Proceeding on the Initial Report wasclosed) to February 2022, the EPDP team reviewed the input it received and began
developing draft final recommendations based on the feedback and its subsequentdeliberations. The following sub-sections summarize the major themes andconsiderations discussed by the EPDP team in reaching its final conclusions.

3.1 Initial Fact-Finding and Research
Under the Addendum establishing the IGO Work Track and reflected in the EPDP teamCharter, the EPDP team “is expected to take into account the review of the relevant
historical documentation and prior community work conducted by the IGO-INGO Accessto Curative Rights Protection Mechanisms PDP Working Group (see Sections 3.1 and 3.2of the PDP Final Report), relevant GAC Advice, the 31-October-2016 letter from IGO
Legal Counsels to Council Leadership, the external legal expert opinion commissioned by
the PDP Working Group (Annex F), and the IGO Small Group Proposal (Annex D).” EPDP
team members were provided with these documents and a Briefing Paper to clarify the

5 The Public Comment proceeding, submissions and the staff report can be viewed here:

https://www.icann.org/en/public-comment/proceeding/initial-report-epdp-specific-curative-rightsprotections-igos-14-09-2021.

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expected scope of work and to highlight the previous deliberations that took place in
the IGO-INGO Access to Curative Rights PDP.
Notably, the Addendum provides that “[i]n order to avoid, to the extent possible, reopening or re-visiting the policy recommendations, the GNSO Council instructs the IGO
Work Track to base its recommendations on its analysis of the materials cited in thisparagraph, and its deliberations as to whether there is a need to develop appropriate
policy recommendations to address identified IGO needs in respect of the specific issue
that was referred to the RPM PDP by the GNSO Council.” In this context, the EPDP teamalso reviewed a limited number of prior materials that the IGO-INGO Access to Curative
Rights Protections PDP had considered relating to its discussions of an appeal process
and possible elements of an arbitration process.

3.2 Deliberations Regarding IGO Eligibility under the UDRP andURS
As noted in Section 2 above, most of the EPDP team agreed that, to develop an
appropriate policy solution for the problem it was tasked to solve, it was necessary to
first consider the challenges which IGOs face with the current UDRP and URS
requirement that a complainant have trademark rights. The GNSO Council had
previously approved Recommendation #2 from the IGO-INGO Access to Curative Rights
Protections PDP, which would allow IGOs to attempt to satisfy this requirement throughreliance on the protections afforded by Article 6ter of the Paris Convention for theProtection of Industrial Property. In this regard, the EPDP team noted that, while Article
6ter requires member states at minimum to protect IGO identifiers against potentiallyconfusing third-party trademark registrations or use as a mark, it does not in and of
itself confer a recordation of substantive trademark rights to IGOs. The EPDP team also
observed that the original Recommendation #2, as approved, leaves the decision as towhether Article 6ter protections would suffice for eligibility to file a UDRP and URS
complaint to the relevant panelist(s) in each case, thereby potentially creating
uncertainty for the parties involved.
The EPDP team sought to reach a solution that would provide more uniform and clearer
guidance to IGOs, registrants and panelists without creating inconsistency with
Recommendation #2. Following its analysis of Article 6ter, relevant GAC advice and theUnited Nations system, the EPDP team developed a proposed definition (including ademonstration of their public activities) for an “IGO Complainant” that would allow an
IGO to demonstrate the rights that would be functionally equivalent to unregisteredtrademark rights.
The EPDP team’s review of the Public Comments received on its proposed initial
definition showed that those commentators who addressed the topic generally
supported the EPDP team’s proposal, though a few expressed concerns relating to the

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need to ensure consistency with the prior Curative Rights PDP recommendations andone commentator opposed the EPDP team’s proposal. As a result of its consideration of
the comments submitted, the EPDP team formed a small team to review its initial
proposed definition. The small team proposed a refinement to the definition that the
EPDP team discussed and approved. The EPDP team’s final recommendations, including
its amended proposed definition for an “IGO Complainant”, can be found in Section
2.1.1, above.
The EPDP team referred to the following resources about the United Nations system inarriving at its proposed definition:•

A list of the current (as of August 2020) states and organizations that havereceived standing invitations to be observers at the United Nations General
Assembly: https://undocs.org/A/INF/75/3.

•

A list of the United Nations’ various entities and programs, including its
Specialized Agencies: https://www.un.org/en/about-us/un-system.

•

A list of the United Nations’ subsidiary bodies, including its standing and ad hoc
committees: https://www.un.org/en/ga/about/subsidiary/index.shtml.

3.3 Deliberations Regarding IGO Immunity and Registrant Rights
The EPDP team noted that an external legal expert, Professor Edward Swaine, had been
engaged previously to provide subject matter advice to the IGO-INGO Access to Curative
Rights Protections PDP. The EPDP team discussed Professor Swaine’s conclusion that
requiring a complainant to submit to Mutual Jurisdiction 6, as is the case under the UDRP
and URS, can amount to a waiver of jurisdictional immunity by an IGO. Conversely, theEPDP team acknowledged that removing this requirement for IGO Complainants could
prejudice a registrant’s right and ability to have an initial UDRP or URS determination
reviewed judicially, in that a successful assertion of immunity by an IGO means that the
court in question will decline to proceed with the case. The EPDP team took note of thefact that Professor Swaine had suggested a few alternatives that could be pursued as apolicy solution.
The EPDP team discussed several proposals that could allow for the recognition of IGO
privileges and immunities without adversely affecting a registrant’s right to fileproceedings in a court: in particular, the benefits and risks of developing an appeal
process internal to the UDRP (i.e., where appeals from an initial UDRP panel decision
would be reviewed by a panel comprising experienced UDRP panelists) compared with

6 This term in the UDRP and URS refers to the jurisdiction either of a court where the relevant registrar’s

principal office is located, or of the registrant’s location.

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allowing for a voluntary arbitration process. The EPDP team reviewed proposals
concerning the required elements for either an appeal process or an arbitration option,
covering matters ranging from the selection of an appeals panel or arbitral tribunal andhow to ensure their neutrality to the procedural rules that should apply to either
process option. Initially, some EPDP team members believed that an internal appeals
process was the most efficient path forward (e.g., pointing to the process that Nominethas been using in the “.uk” ccTLD), but other members of the Work Track thought thatmaking the option of voluntary arbitration explicit in the UDRP and URS was the more
appropriate solution.
The EPDP team ultimately agreed to work on an arbitration process rather than aninternal appeal mechanism and reached agreement on several elements that needed to
be incorporated into the UDRP and URS as requirements, e.g., the arbitration must be
conducted as a substantive, de novo review of the case, and in UDRP cases theregistrar’s lock on the disputed domain must be maintained for the duration of therelevant proceedings. The EPDP team decided to seek public input on other key aspects
regarding an arbitration option. In its Initial Report, which it published for Public
Comments in September 2021, the EPDP team requested community feedback on thefollowing two questions:•

Whether a losing registrant should have the ability to preserve the option to go
to arbitration if it decides to first file a case in court and the court declines tohear the merits of the case; and•What substantive law should apply in the arbitration proceeding.

The EPDP team had decided to seek Public Comments on these questions as some EPDP
team members believed that preserving the option for a registrant to go to arbitration
following an unsuccessful attempt to invoke judicial consideration of its case would leadto a much more costly and inefficient process, while other members thought it was
important to ensure that a registrant continues to be able to seek consideration of themerits of its case.
The Public Comments demonstrated strong concerns, particularly amongst individualcommentators, regarding the EPDP team’s proposal to exempt IGO Complainants fromthe requirement to agree to submit to a Mutual Jurisdiction, to the extent that it would
result in limitations on the registrant’s ability to file court proceedings against an IGO orin compelling a registrant to go to arbitration. These commentators emphasized that theoutcomes of the EPDP should not reduce or otherwise adversely affect the rights ofregistrants.
Some commentators, including the ALAC and the GAC, welcomed the introduction of anarbitration option into the UDRP and URS processes, noting that arbitration is a wellrecognized dispute resolution process, including for commercial disputes. However,
although there was some support for an arbitration option, there was no universal

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agreement amongst the commentators as to whether arbitration should be the soleavenue for final resolution of a dispute or whether a registrant should continue to beable to seek arbitration following an unsuccessful attempt to have the merits of its caseconsidered by a court. Several commentators expressed the clear view that adding
arbitration to the UDRP and URS should not remove or reduce a registrant’s right toinitiate court proceedings, and a few commentators suggested that the EPDP teamshould clarify its recommendations in this regard.
The EPDP team agreed that its final recommendations must represent a balance
between the rights of IGOs and those of registrants. In reviewing all the Public
Comments received on this topic, the EPDP team also considered specific alternative
suggestions and text raised by a few commentators. A small team was tasked to develop
specific policy principles on key elements that the EPDP team believes are important forarbitration proceedings between an IGO Complainant and a registrant. These policy
principles are intended to guide the future Implementation Review Team in selecting an
arbitration provider (or providers) and the applicable arbitral rules.
Based on its analysis of the Public Comments, the EPDP team modified its preliminary
recommendations to:(i)Clarify that its proposal to exempt an IGO Complainant (as defined) from therequirement to agree to submit to a Mutual Jurisdiction does not alter orlimit a registrant’s ability and right to initiate court proceedings;(ii)
Include an obligation for a UDRP or URS provider to inform a registrant, when
notifying it of a complaint filed by an IGO Complainant, that it has the right tofile court proceedings as well as to seek arbitration, and the potential
implications where an IGO raises its immunities and privileges in a court
proceeding;(iii)
Provide that a registrant continues to have the option to seek arbitration
after it has filed suit in court and the court has declined to hear the merits ofthe case on the basis of IGO privileges and immunities; and(iv)
Require that the relevant registrar (in a UDRP proceeding) or URS provider (ina URS proceeding) inform the IGO Complainant should a registrant decide topursue arbitration.
The EPDP team’s final recommendations can be found in Section 2.1.2 (above).

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4 Conclusions and Next Steps
4.1 Final Conclusions
As described more fully in Section 2, above, the EPDP team has reached agreement on
the addition of a definition of “IGO Complainant” to the current Rules applicable to the
UDRP and URS, which is intended to clarify how an IGO may demonstrate rights toproceed against a registrant in the absence of a (registered) trademark. The EPDP teamhas also agreed that providing for voluntary arbitration within the overall framework of
the UDRP and URS is an appropriate approach toward resolving the issue of how torecognize an IGO’s jurisdictional immunity, provided that a registrant’s right to choose
to go to court is also preserved.

4.2 Next Steps
This Final Report will be delivered to the GNSO Council for its consideration of therecommendations from the EPDP team.

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5 Relevant Process & Issue Background
5.1 Process Background
In June 2014, the GNSO Council chartered the IGO-INGO Access to Curative Rights PDP
to develop policy recommendations as to whether “to amend the UDRP and URS toallow access to and use of these mechanisms by IGOs and [International NonGovernmental Organizations (INGOs)] and, if so in what respects or whether a separate,
narrowly-tailored dispute resolution procedure at the second level modeled on the UDRP
and URS that takes into account the particular needs and specific circumstances of IGOs
and INGOs should be developed.” The PDP Working Group submitted its Final Reportcontaining five recommendations to the GNSO Council in July 2018. Following several
months of deliberations over the PDP recommendations, during which several
Councilors voiced concerns over the implications of Recommendation #5, in April 2019
the GNSO Council voted to approve the first four recommendations, and to refer
Recommendation #5 to the RPM PDP to consider during Phase 2 of its work.
As indicated in its April 2019 resolution, the GNSO Council approved an Addendum to
the RPM PDP Charter in January 2020 to initiate the necessary policy work on
Recommendation #5. The Addendum reflects the outcomes of various discussions
between the GNSO Council and the GAC as well as interested IGOs, during which the
GAC and IGO representatives had indicated that they would be willing to participate in atargeted policy effort that focuses on the issue of curative rights for IGOs and drawing
on the community's recent experiences with the Expedited PDP on the Temporary
Specification for gTLD Registration Data and Work Track 5 of the GNSO New gTLD
Subsequent Procedures PDP.
In October 2020, the GNSO Council issued a call for Expressions of Interest to serve as
the IGO Work Track Chair. Following the GNSO Council leadership team’s review of theapplications it received, the GNSO Council appointed former ICANN Board Director Chris
Disspain to the position in December 2020.
The Addendum to the RPM PDP Charter laid out certain criteria for membership
appointments to the IGO Work Track and specified its overall composition andrepresentativeness across the ICANN community. The GNSO’s Business Constituency,
Intellectual Property Constituency, Internet Service Providers and Connectivity Providers
Constituency and the Non-Commercial Stakeholder Group, as well as the ALAC, the GAC
and interested IGOs all appointed members in accordance with the requirements in the
Addendum.
Following the completion of Phase 1 of the RPM PDP and pending the launch of Phase 2,
the GNSO Council resolved to continue the IGO Work Track’s work through an EPDP in
August 2021. The Council emphasized that this decision was wholly procedural in nature

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and was intended to provide a process framework to maintain the momentum the IGO
Work Track had displayed and to continue the same scope of work (via the new EPDP
Charter) as reflected in the original Addendum that the GNSO Council had previously
approved.

5.2 Issue Background
The IGO-INGO Access to Curative Rights PDP (active from June 2014 to July 2018) had
been preceded by an IGO-INGO Protections in All gTLDs PDP, which had taken place
between October 2012 and November 2013. One of the recommendations from thatprior PDP, which the GNSO Council approved, was for the GNSO Council to request an
Issue Report to determine whether a separate PDP should be initiated to explore
possible amendments to the UDRP and the URS that would enable access to and use ofsuch curative rights protection mechanisms by IGOs and INGOs. The Final Issue Reportthat the GNSO Council requested includes background on prior work within and outside
the ICANN community on the issue of curative rights protections for IGOs and INGOs,
and documented the challenges that these organizations face in using the existing UDRP
and URS. Consequently, the GNSO Council initiated the IGO-INGO Access to Curative
Rights PDP in June 2014, “to evaluate: (i) whether the UDRP and/or URS should be
amended (to enable their access and use by IGOs and INGOs whose identifiers had been
recommended for protection by the IGO-INGO PDP WG) and if so, in what way; or (ii)whether a separate narrowly-tailored procedure modeled on these curative rights
protection measures to apply only to protected IGO and INGO identifiers should be
developed."
Following four years of deliberations, the IGO-INGO Access to Curative Rights PDP
proposed five recommendations to the GNSO Council, as follows:
Recommendation #1:
1(a): For INGOs (including the Red Cross movement and the International
Olympic Committee), no substantive changes to the UDRP and URS are to be
made, and no specific new dispute resolution procedures are to be created.
1(b): For IGOs, no specific new dispute resolution procedures are to be created.
Recommendation #2:
The Working Group notes that an IGO may seek to demonstrate that it has therequisite standing to file a complaint under the UDRP or URS by showing that it
has complied with the requisite communication and notification procedure inaccordance with Article 6ter of the Paris Convention for the Protection ofIndustrial Property. An IGO may consider this to be an option where it does nothave a registered trademark or service mark in its name and/or acronym but
believes it has certain unregistered trademark or service mark rights for which it
must adduce factual evidence to show that it nevertheless has substantive legal
rights in the name and/or acronym in question.
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In this regard, the Working Group recommends that specific Policy Guidance on
this topic be issued by ICANN to clarify the following points:(a) this alternative mechanism for standing is not needed in a situation where an
IGO already holds trademark or service mark rights in its name and/or acronym,
as the IGO would in such a case proceed in the same way as a non-IGO
trademark owner;(b) whether or not compliance with Article 6ter will be considered determinativeof standing is a decision to be made by the UDRP or URS panelist(s) based on thefacts of each case; and(c) the possibility that an IGO may seek to rely on its compliance with Article 6ter
to demonstrate standing should not modify or affect any of the existing grounds
which UDRP and/or URS panelists have previously found sufficient for IGO
standing (e.g., based on statutes and treaties).
Recommendation #3:
ICANN shall create and issue Policy Guidance: (a) outlining the various procedural
filing options available to IGOs, e.g. they have the ability to elect to have acomplaint filed under the UDRP and/or URS on their behalf by an assignee, agent
or licensee; and (b) advising IGOs and INGOs to, in the first instance and prior tofiling a UDRP or URS complaint, contact the registrar of record to address theharms for which they are seeking redress. In addition, ICANN shall ensure that
this Policy Guidance document is brought to the notice of the Governmental
Advisory Committee (GAC) for its and its members’ and observers’ informationand published along with the procedures and rules applicable to the UDRP and
URS on the ICANN website.
Recommendation #4:
Notwithstanding GAC advice concerning access to curative rights processes for
IGOs as well as the Charter language requiring the Working Group to consider“the need to address the issue of cost to IGOs and INGOs to use curative
processes”, there was no support within the Working Group for a
recommendation to provide subsidies to any party to use the UDRP or URS.
Nevertheless, the Working Group recognizes that it has no authority to obligate
the expenditure of ICANN funds, and it understands, further, that the feasibilityof providing IGOs with access to the UDRP and URS at no or nominal cost to the
IGOs is a question that must be addressed directly through discussions between
the ICANN Board with the GAC and IGOs. The Working Group also notes thatmany Working Group members believe that a respondent should also be eligible
to receive financial support for its defense in a case where ICANN has subsidized
the complainant.
Recommendation #5:

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Where a losing registrant challenges the initial UDRP/URS decision by filing suitin a national court of mutual jurisdiction and the IGO that succeeded in its initial
UDRP/URS complaint also succeeds in asserting jurisdictional immunity in thatcourt, the decision rendered against the registrant in the predecessor UDRP or
URS shall be set aside (i.e. invalidated).
As noted in Section 1, above, the GNSO Council’s review of the PDP Final Report
revealed several concerns over the implications of Recommendation #5. The GNSO
Council therefore decided not to approve this recommendation, electing instead torefer it to the RPM PDP and to create a separate IGO Work Track within that PDP
framework that was to try to develop a policy solution that would nevertheless be“generally consistent” with the other four PDP recommendations that the GNSO Council
approved.
The GNSO Council’s intentions and instructions as to the scope of work for the new IGO
Work Track are documented in its resolution creating the Work Track and theAddendum laying out the problem statement, membership requirements and process
methodology for the Work Track. As noted above, these instructions and scope of work
were not affected or modified through the GNSO Council’s procedural decision tocontinue the Work Track’s work via an EPDP.

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6 Approach Taken by the EPDP Team
6.1 Working Methodology
The EPDP team held its first meeting in February 2021. Recordings and transcripts of thegroup’s discussions can be found on its wiki space. It has conducted its work primarily
through weekly conference calls, in addition to email exchanges on its mailing list.
As instructed by the GNSO Council, the EPDP team prepared a work plan which it
reviewed on a regular basis. The EPDP Chair and the GNSO Council liaison to the EPDP
team also provided regular reports to the GNSO Council regarding the status andprogress of the group’s work. Details of the project schedule, attendance and action
items can be found in the monthly project packages.
The EPDP Team email archives can be found at https://mm.icann.org/pipermail/gnsoigo-wt/.

6.1.1 EPDP Membership and Attendance
Plenary Meetings:• 39 Plenary calls (w/ 6 cancelled) for 58.5 call hours for a total of 1015.5 person
hours• 80.3% total participation rate
Small Team Meetings:• 8 Small team calls for 8.0 call hours for a total of 62.0 person hours• 100.0% total participation rate
Leadership Meetings:• 33 Leadership calls for 33.0 call hours for a total of 200.0 person hours

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The Members of the EPDP team are:Represented Group / Member

SOI

Start Date

At-Large Advisory Committee (ALAC)

Depart Date

Attended %93.2%

Justine Chew

SOI

17-Dec-2020

91.4%

Yrjö Länsipuro

SOI

17-Dec-2020

94.9%

Commercial Business Users Constituency (BC)Jay Chapman

Role

100.0%
SOI

17-Dec-2020

GNSO Council

100.0%
93.2%

Chris Disspain

SOI

17-Dec-2020

100.0%

Chair

Jeffrey Neuman

SOI

8-Jan-2021

87.2%

LiaisonJohn McElwaine

SOI

8-Jan-2021

92.3%

LiaisonGovernmental Advisory Committee (GAC)

74.4%

Alexandra ExcoffierSOI

17-Dec-2020

69.2%

Brian Beckham

SOI

17-Dec-2020

92.3%

Kavouss Arasteh

SOI

17-Dec-2020

38.5%

Susan Anthony

SOI

17-Dec-2020

97.4%

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Intellectual Property Constituency (IPC)
Paul McGrady

89.7%
SOI

11-Jan-2021

89.7%Internet Service Providers and Connectivity Providers Constituency (ISPCP)

69.2%

Osvaldo Novoa

69.2%

SOI

17-Dec-2020

Non-Commercial Stakeholder Group (NCSG)

56.3%

Ioana Florina Stupariu

SOI

17-Dec-2020

59.0%

Juan Manuel Rojas

SOI

17-Dec-2020

51.3%

Krishna Seeburn

SOI

17-Dec-2020

SOI

Start Date

3-Mar-2021

100.0%The Alternates of the EPDP Team are:Represented Group / Alternate

Depart Date

At-Large Advisory Committee (ALAC)

Attended %

Role

55.1%

Carlos Raúl Gutiérrez

SOI

17-Dec-2020

18.5%

Vanda Scartezini

SOI

17-Dec-2020

91.7%

Governmental Advisory Committee (GAC)

66.7%

David Satola

SOI

17-Dec-2020

100.0%

Jorge Cancio

SOI

17-Dec-2020

0.0%

Matthew Coleman

SOI

17-Dec-2020

100.0%ICANN org Policy Staff Support for the EPDP Team:
Represented Group / Staff Assigned

SOI

Start Date

Andrea Glandon

17-Dec-2020

Berry Cobb

17-Dec-2020

Julie Bisland

17-Dec-2020

Mary Wong

17-Dec-2020

Steve Chan

17-Dec-2020

Terri Agnew

17-Dec-2020

Depart Date

Attended %Role

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7 Annex A – Principles regarding Arbitral Rules
In agreeing to include a voluntary arbitration option in the UDRP and URS, the EPDP
team understood and agreed that it will also be necessary to provide guidance for thepolicy implementation phase regarding the key elements to include in an arbitration
proceeding. The EPDP team acknowledged that there are several major sets ofinternational arbitral rules that could potentially be applied, which it noted in its Initial
Report7.
Following further deliberations and consideration of the Public Comments that were
submitted, the EPDP Team agreed that the Implementation Review Team would benefit
from the clarity that a set of governing policy principles can provide. A small team of
EPDP members was formed to develop the proposed principles. Below is the final set ofprinciples that the EPDP team approved. As a general matter, the EPDP teamacknowledges that these principles are subject to the applicable law governing aparticular arbitration proceeding.
General Principles:
1. As the type of arbitration proceeding contemplated by the EPDP
recommendations is intended to be final and binding, the arbitration should be
conducted in such a manner as to be the substantive equivalent of a judicial
review of the merits of the case as much as is feasible.
2. At the same time, any arbitration proceeding should be conducted as
expeditiously as possible. As such, the arbitral rules framework should be
sufficiently flexible to allow for a more streamlined process if the parties agree.
3. The arbitration process must include customary and reasonable protections
against abuse of process.
4. To ensure predictability, the process for initiating, conducting, and concluding
the arbitration should be clear and should allow for electronic communications
by default.
5. The arbitration process should be cost-efficient. A fixed range of arbitral fees
should be encouraged to ensure predictability and affordability.
6. Arbitration is not an appeal limited to specific circumstances; it is a de novo
review of the elements of the UDRP or URS action.
7. Unless the parties agree to a more streamlined process, there should be a fullexchange of documents and information relevant to the proceeding.

7 These were the rules in use at the International Center for Dispute Resolution, the Permanent Court of

Arbitration, the United Nations Commission for International Trade Law, and the World Intellectual
Property Organization.

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8. The parties should be encouraged to consider voluntary mediation prior to or
during the arbitration.
9. Unless agreed otherwise by the parties, the arbitration should be conducted
through hearings where both parties may present oral and written evidence aswell as call, question and cross-examine witnesses. By default, hearings should
be conducted online, though the parties should have the ability to opt for inperson or “hybrid” (i.e., combination of in-person and online) hearings.
10. The arbitrator(s) should have discretion as to the general conduct of theproceedings. In particular, the arbitrator(s) should have discretion regarding theadmissibility and weight of the evidence presented by both parties.
11. There should be a clear, transparent, and uniform process for the selection andappointment of arbitrators, as well as for challenging an appointment. All
arbitrators should be required to attest to their impartiality and independence.
12. All arbitration proceedings must result in clear and enforceable outcomes. Thesemay include confirmation of a transfer or cancellation of the disputed domainname(s), or an order that the registrant retains the disputed domain name(s),including a declaration of abuse of process or reverse domain name hijacking incases where the arbitrator(s) has/have found such behavior. The arbitrator(s)should have the discretion to award injunctive relief where this is considerednecessary for equitable reasons.
Specific Principles:
1. To facilitate flexibility, the parties should be permitted to tailor any
requirement or step in the arbitration process to their specific, mutuallyagreed needs.
2. Each party may be represented by a person of their choice, who need not be
an attorney.
3. Except when presenting their case during the hearing, parties should beprohibited from communicating with the arbitrator(s) prior to or during thearbitration process.
4. The parties should be encouraged to agree on the appointment of a single
arbitrator. In the event the parties cannot agree on the appointment of asingle arbitrator, the arbitral tribunal shall appoint the sole arbitrator from a
pre-defined list of arbitrators.
5. Either party may elect that a three-person panel be constituted, in whichcase each party is to elect an arbitrator from a pre-defined list of arbitrators,
and the third (presiding) arbitrator shall be chosen through mutual
agreement. In the event the parties cannot agree on the appointment of thethird (presiding) arbitrator, the parties’ designated arbitrators shall choose
the third (presiding) arbitrator from the available list.
6. Consideration should be given to publishing a list of potential arbitrators who
are recognized as experts in domains name issues.

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7. Arbitrators should observe specific rules of evidence, similar to those
applicable to court proceedings.
8. Parties should be able to discuss and disclose details regarding possible
settlements at any time.
9. Consideration should be given to the possibility of sanctions against parties
that do not comply with applicable rules, who have been found to haveengaged in an abuse of process, or who seek to cause unnecessary delay or
expense.
10. All final arbitral decisions should be published or otherwise made available tothe public. This does not include case filings or other documentation relating
to the conduct of the proceedings.

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IGO EPDP Final Report

Date: 2 April 2022

8 Annex B – Scope of Work (as approved by the
GNSO Council)
EPDP Team Charter, as approved by the GNSO Council:
https://gnso.icann.org/sites/default/files/file/field-file-attach/specific-crp-igo-epdpcharter-16aug21-en.pdf
GNSO Council resolution establishing the EPDP Team:https://gnso.icann.org/en/council/resolutions/2020-current#20210819-2
GNSO Council project webpage for the EPDP: https://gnso.icann.org/en/groupactivities/active/specific-crp-igo-epdp

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