RE: [ga] Proposed Transfers Policy

[Joanna Lane <jo-uk@rcn.com>]

"A contract without
enforcement provisions does not suit the needs of the registrant community
that must be protected from the continued prospect of registrar abuse."

ICANN is not a legal enforcement organization according to Stuart Lynn. Who
do you propose does the enforcement?

Joanna

-----Original Message-----
From: owner-ga@dnso.org [mailto:owner-ga@dnso.org]On Behalf Of
DannyYounger@cs.com
Sent: Thursday, March 28, 2002 12:58 PM
To: synthesis@videotron.ca
Cc: ga@dnso.org; ross@tucows.com
Subject: [ga] Proposed Transfers Policy


Dear Dan,

Please convey the following sentiments to the Transfers TF:

The Registrar Constituency has proposed amending current contract language
by
adding one additional instance when a requested change of sponsoring
Registrar may be denied, such instance referencing the circumstances
described in the Registrar Transfer Statement of Best Practices document
cited at http://www.dnso.org/clubpublic/registrars/Arc01/doc00059.doc

These circumstances are predicated upon Losing Registrar arriving at a
determination that the Gaining Registrar has not appropriately implemented
the processes contemplated by this document.  Allowing the denial of
transfer
to rest solely upon a determination made by the Losing Registrar exposes the
registrant to an unacceptable risk factor, as his rights to a decision free
from arbitrary and capricious action are not guaranteed by this process.

The argument has been put forth that the Losing Registrar may deny a
transfer
request only when either of the following conditions are satisfied:  it
receives an express objection from a Registered Name holder or an individual
who has the apparent authority to legally bind the Registered Name Holder,
or
the Gaining Registrar fails to comply with the minimum standards and
practices contemplated by this document and/or the relevant Registry
Agreement.

Such minimum standards call for "a written or electronic copy of reliable
evidence of authorization by the Registered Name holder or an individual who
has the apparent authority to legally bind the Registered Name holder."
Nowhere in this document is apparent authority defined, and evidence of
authorization, either written or electronic, is subject to dispute based
solely on Losing Registrar's reasons (including allegations of suspicious
transaction patterns) and determination.

While both Gaining and Losing registrars are imbued with many rights in this
process, there are no rights to review or appeal accorded to the registrant.

Further, if the Gaining Registrar fails to respond to the request from the
Losing Registrar, the Losing Registrar may choose not to honor all future
transfer requests from the Gaining Registrar until such time that the
Gaining
Registrar can provide the Losing Registrar with a copy of the FOA as set
forth in the Transfers document.  This places all other such registrants at
risk of a denial of transfer solely based upon the failure of registrars to
abide by their own best practices, again with no right of appeal.

In similar fashion, if the Gaining Registrar provides evidence of compliance
not consistent with the minimum standards and processes contemplated by this
document, the Losing Registrar may choose not to honor all future transfer
requests from the Gaining Registrar until such time that the Gaining
Registrar can satisfy the Losing Registrar that they have adopted the
minimum
standards and processes contemplated by this document.  Once more, this
unacceptably places a potentially large class of registrants at the mercy of
the unappealable decisions of Losing Registrars without due process
provisions.

The rights of registrants have not been considered by this document as
tendered by the Registrars.  In addition to these concerns, registrants need
to be mindful of the possibility of capricious use of registrar lock
processes that have not been contemplated by this document.  There are no
penalties proposed for a registrar failure to comply with the terms of the
document, either monetary or by way of disaccreditation.  A contract without
enforcement provisions does not suit the needs of the registrant community
that must be protected from the continued prospect of registrar abuse.







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