Public Comment Summary Report
Final Report from the EPDP on SpecificCurative Rights Protections for IGOs
Open for Submissions Date:
Monday, 28 November 2022
Closed for Submissions Date:
Monday, 30 January 2023 (extended from Friday, 13 January 2023)
Summary Report Due Date:
Wednesday, 1 March 2023 (extended from Wednesday, 15 February 2023)
Category: Policy
Requester: ICANN Board
ICANN org Contact(s): policy-staff@icann.org
Open Proceeding Link:
https://www.icann.org/en/public-comment/proceeding/final-report-from-the-epdp-on-specificcurative-rights-protections-for-igos-28-11-2022
Outcome:All the Public Comments submitted for this proceeding will be transmitted to the ICANN Board
for its consideration as it reviews the EPDP recommendations with a view toward acting onthem. Under the ICANN Bylaws, prior to any action by the Board on proposed policies that
substantially affect the operation of the Internet or third parties, ICANN is required to provide areasonable opportunity for parties to comment on these policies. The Bylaws also obligate theBoard to consider any timely advice that may be duly submitted by the Governmental Advisory
Committee as part of the Board’s decision-making.

|1Section 1: What We Received Input On
This Public Comment proceeding had sought public input on the five Full Consensus
recommendations from the Generic Names Supporting Organization’s (GNSO) Expedited Policy
Development Process (EPDP) on Specific Curative Rights Protections for International
Governmental Organizations (IGOs). The EPDP recommendations, if adopted by the ICANN
Board, will result in several procedural changes to ICANN’s existing second-level domain namedispute resolution processes, but without affecting their applicability, scope, or substantivecriteria.
The five EPDP recommendations are to:• add a definition of “IGO Complainant” to the Uniform Domain Name Dispute ResolutionPolicy (UDRP) and Uniform Rapid Suspension dispute resolution procedure (URS), toclarify the applicability of these dispute resolution mechanisms to IGOs that candemonstrate the requisite legal rights;• exempt IGO Complainants from the requirement to agree to a Mutual Jurisdiction (asdefined in the UDRP and URS), such that the question of an IGO’s immunity from thejurisdiction of a court is determined as a matter of law by the relevant court, while
preserving the existing right of a domain name registrant to file a court proceeding at any
time during a UDRP or URS proceeding;• add a voluntary mutual arbitration option to the two dispute resolution processes, such
option to remain available to a registrant even after the registrant has elected to file acourt proceeding; and• clarify the law to be applied in a voluntary arbitration proceeding.
Ten (10) Public Comments were submitted, including by one of ICANN’s Advisory Committees
and two of the GNSO’s Stakeholder Groups.

|1Section 2: Submissions
Organizations and Groups:NameSubmitted byInitials

ICANN Governmental Advisory Committee

Benedetta Rossi

GAC

GNSO Registrars Stakeholder GroupZoe Bonython

RrSG

GNSO Business Constituency

Business Constituency

BCInternet Commerce Association

Zak Muscovitch

ICA

GNSO Registries Stakeholder GroupRegistries Stakeholder Group

RySG

Name

Affiliation (if provided)

Initials

Nojus SaadYouth for Women FoundationNS

Individuals:

C. Hb.
Roger Fearon

CHUnited States

Md. Jahangir Hossain
George Kirikos

RFJH

Leap of Faith Financial Services,
Inc.

GKSection 3: Summary of Submissions
General:RrSG noted its appreciation that the EPDP team had incorporated the RrSG’s feedback to theInitial Report in making changes to the Final Report, to address a complicated and nuancedscenario.
GAC supports and welcomes the EPDP recommendations. It also noted that therecommendations were the result of compromises on policy outcomes that the GAC had
previously preferred.
BC emphasized its support for the existing UDRP and URS framework for IGOs without theneed to conceive, develop, and implement a separate rights protection mechanism for IGOs. ,BC considers that any adjustments to the UDRP to address participation by IGOs as
recommended by the EPDP should undergo further expert review within the GNSO’s expected
Phase 2 PDP on the Review of All Rights Protection Mechanisms (RPMs), to ensure overall
internal consistency with the existing UDRP.
ICA commended the EPDP team for incorporating public feedback into its finalrecommendations. ICA also proposed that the EPDP recommendations, if adopted by theBoard, should not be implemented until they are also approved through the RPMs Phase 2 PDPor a review by experts representing both complainants and respondents.
|1ICA further noted that the GNSO Council’s specific mandate to the EPDP team had been todevelop policy recommendations that are generally consistent with the approved outcomes ofthe prior GNSO PDP on IGO curative rights, including preserving registrant rights to file judicial
proceedings and have judicial review of UDRP and URS decisions. As such, ICA recommends
that the ICANN Board carefully consider if the EPDP recommendations fulfill that Councilmandate.
RySG recommends that the ICANN Board adopt and implement the EPDP recommendations as
efficiently as possible. It noted the length and complexity of the work involved and expressed
the hope that, following Board approval, IGOs will be able to take advantage of second leveldomain name registrations and registries will have the required information to operationalize
requests for registration.
GK believes that the ICANN Board should reject the EPDP final report in its entirety. He
considers the report the product of a demonstrably captured group that did not meaningfully
review the Public Comments submitted to its initial report and did not follow the Board’s
guidance not to provide IGOs with greater rights than exist under international law. GK’ssubmission included and expressly incorporated his feedback to the EPDP initial report and theprior GNSO PDP on IGO curative rights, which among other things traces the history of theUDRP and its Mutual Jurisdiction clause. GK contends that these comments remain valid inview of his belief that the EPDP ignored community input in finalizing its recommendations, tothe detriment of registrants.
GK also noted the GNSO Council’s directions to the EPDP team and stated that, byemphasizing a registrant’s right to file and initiate a court proceeding, the EPDP
recommendations do not succeed in preserving registrant rights to judicial review but actually
result in harm to registrants.
Specific Comments on EPDP Recommendation #1:
BC supports this recommendation as it believes this to be consistent with the BC’s previously
stated positions.
Subject to its objection to the other recommendations and proposed review by the RPMs Phase
2 PDP, ICA supports this recommendation if it is a minor change to the UDRP and URS that will
permit an IGO to use a proxy or agent to file complaints without having to itself submit to MutualJurisdiction.
Specific Comments on EPDP Recommendation #2:
BC supports this recommendation and alerts Respondents to their right to either challenge adecision in court or to agree to binding arbitration.
ICA strongly opposes the recommendation to exempt IGOs from the current Mutual Jurisdiction
requirement under the UDRP and URS, as it believes this would leave registrants without any
assurance of judicial review of an adverse UDRP decision. ICA highlighted the original premisefor the UDRP and commented that the UDRP and URS are convenient, expedited, and lowercost supplements to available judicial processes, not preemptive substitutes for them. ICA
believes that there is no legal basis for the EPDP recommendations, noting that only one legal
expert had been engaged to provide advice to the prior GNSO PDP. ICA recommended that the|2

ICANN Board review that advice and seek further expert guidance prior to approving thisrecommendation.
GK notes that removing the need for IGOs to agree to submit to Mutual Jurisdiction will havedeleterious impacts on registrants, as this would enhance IGOs’ ability to claim jurisdictional
immunity and result in courts declining to hear most cases filed by losing registrants, whereas in
the current situation this is a rare occurrence.
Specific Comments on EPDP Recommendation #3:
BC partially supports this recommendation, subject to the caveat that the final structure of thearbitration system must first be determined in a manner satisfactory to all parties, to function as
an adequate substitute for court proceedings. In this regard, BC considered the principles as set
out by the EPDP team in Annex A of the EPDP Final Report to be generally agreeable andpromising.
GAC continues to believe that arbitration as the default means of appeal for a UDRP decision
will be more efficient; however, as a matter of compromise, GAC supports the recommendationthat if a court declines jurisdiction over an appeal from a UDRP case, the IGO and registrant
should have an arbitration option available to resolve their dispute.
ICA considers it premature to ask if stakeholders support post-UDRP arbitration, since thesystem has not been finalized. ICA noted the likely expense and time that setting up such asystem would entail, as well as the importance of determining questions about the selection of aprovider, and appointment and accreditation of arbitrators.
Specific Comments on EPDP Recommendation #4:
For the reasons stated in relation to Recommendation #3 regarding the UDRP, BC expressed
qualified support for Recommendation #4.
Specific Comments on EPDP Recommendation #5:
BC supports a reasonable approach toward the choice of applicable law for arbitration. To avoid
gaming of the system and subject to any subsequent recommendations from the RPMs Phase 2PDP, BC specifically supports the recommendation that “[i]n all cases, where neither law
provides for a suitable cause of action, the arbitral tribunal shall make a determination as to thelaw to be applied in accordance with the applicable rules.”Other Comments
NS agreed with the concerns that the GNSO Council and IGOs had expressed regarding
Recommendation #5 from the prior GNSO PDP on IGO curative rights, and proposed thedevelopment of a separate, narrowly tailored dispute resolution mechanism modeled on theUDRP and URS.
CH’s and RF’s submissions did not address the EPDP recommendations.
GAC noted previous GAC advice on the topic and stated that, as IGOs are unique treaty-based
institutions created by governments under international law to undertake global public service
missions, protecting their names and acronyms in the DNS serves the global public interest.
GAC also noted that, owing to the public funding of IGOs’ missions, curative rights protection
mechanisms such as the UDRP should be at no or nominal cost to IGOs.

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ICA stated its belief that there is no evidence that cyber-squatting on IGO domains is asignificant problem, and that the EPDP recommendations represent a solution in search of aproblem, especially since the UDRP can be used for that purpose, potentially with some minoradaptations.
ICA also recommended that any approach that the ICANN Board may adopt in relation to RPMs
be evaluated in the near and mid-term, and subject to a sunset clause that automatically repeals
it unless a preemptive decision is made based upon evidence, consultation, and consensus, tomaintain it.
JH supports preserving registrant rights to judicial review and the need for clear, transparent,
and universally accepted guidelines to protect registrant rights.
GK provided a detailed analysis of the EPDP team’s consideration of the Public Comments
submitted to its initial report to support his contention that the EPDP team did not perform ameaningful review of the substantive input it received. He also noted his concern that IGOs may
have undermined the legitimacy of ICANN’s multi-stakeholder model by relitigating their issues
excessively, including in the EPDP which he considered had only limited, unbalanced, andunengaged participation.
GK suggested a few ways for the ICANN Board to mitigate damage that may result from its
adoption of the EPDP recommendations. These suggestions include “grandfathering” existingdomain registrations, reconsidering the metrics proposed in the final report, creating a“supergroup” consisting of members from the prior GNSO PDP and the new EPDP teams,
permitting legitimate registrants to opt out of the UDRP and URS by posting a security bond,providing financial aid to registrants who waive the right to go to court, and consideration of a
“Notice of Objection” system as proposed in GK’s feedback to the prior PDP and the ICANN
Board. In addition, he suggested that the ICANN Board meet with members of the prior GNSO
PDP team (including himself), to try to obtain the consensus of all affected stakeholders.

Section 4: Analysis of Submissions
While some commentators expressed support for the EPDP recommendations, includingcommentators representing ICANN community structures such as the GAC and various GNSO
stakeholder groups, a few commentators noted specific concerns, including with the potential
consequences for registrant rights should IGOs be exempt from the current UDRP and URSrequirement to agree to submit to a Mutual Jurisdiction. Several commentators commended theEPDP team for its work on a complex and longstanding topic and noted that the EPDP
recommendations are the result of compromise.

Section 5: Next Steps
This summary report as well as all the Public Comments received will be forwarded to theICANN Board for its consideration.

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