[Gnso-igo-ingo-crp] Report on Meeting with Prof. Edward Swaine

[Phil Corwin]

Members of the IGO CRP WG:

In preparation for our final WG call of 2015 tomorrow, I wanted to provide a summary of my meeting with Prof. Edward Swaine of George Washington University Law School in Washington, DC. As you know, he has been retained by ICANN to provide answers to our questions regarding the generally accepted scope of IGO sovereign immunity and its application within the UDRP context.

I met with Prof. Swaine on the afternoon of Friday, December 11th at his law school office and we spoke for just over an hour. My main purpose in requesting the meeting was, besides establishing a more personal line of communications, to acquaint him with the history, purpose and operation of the UDRP (and, to some extent, the URS) and specifically with the option for a Respondent to file an intervening court action, and for either party to "appeal" a UDRP decision to a court of mutual jurisdiction. I also explained the history and purpose of our WG as well as some of the internal ICANN "politics" and dynamics concerning interactions between the Board, GAC & IGOs, and GNSO.

We reviewed the WG's conclusions so far regarding our decision that there was no need to cover INGOs, and that IGOs which had asserted their Paris Convention Article 6ter protections would have standing to file a UDRP or URS, as well as our finding that some IGOs over the years had made use of the UDRO notwithstanding the sovereign immunity issue. Finally, we reviewed the specific questions posed by the WG. Throughout the discussion Prof. Swaine asked a variety of questions. I also made him aware, and he  made note, of the guidance for UDRP experts provided on WIPO's website as well as the recently published volume on Domain Name Arbitration authored by Gerald Levine; its final chapter extensively discusses Paragraph 4k of the Policy (submission to a court of competent jurisdiction).

Prof. Swaine is just undertaking the project and has not reached any preliminary conclusions,  but believes he can provide a response to our questions in January 2016. I have suggested that he share a near-final draft so that we can review it and make comments and inquiries before it is deemed final. I also made clear that Petter and I as well as ICANN support staff will be happy to respond to any of his questions as he moves forward.

I hope you find that report useful. I'll be happy to discuss the meeting further and answer any questions during our call tomorrow. We all hope that once we receive the Professor's responses to our questions we can resume our previously quick pace and move expeditiously toward a final report and recommendations.

Speak to you on the call tomorrow.

Very best, Philip



Philip S. Corwin, Founding Principal
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