[Gnso-igo-ingo-crp] Follow up questions for IGO small group on sovereign immunity

[Mary Wong]

Hello George and everyone,

As always, thank you for the additional resources! If the WG would prefer,
we can add these references to the note, indicating that instead of ³at
least two² instances we have found ³several².

On the use of terms like ³rare² and ³limited², while I would suggest
retaining them where they refer to the IGOs¹ own feedback, we can
certainly rephrase those other parts where it seems to be the view of the
WG as well.

We can add Paul Keating¹s question about a ³limited waiver² to Question #3.

On Question #4, we can add George's suggested specific question about
whether IGOs ever initiate court action themselves and in their own names
and, if so, whether they can provide us with examples. We can also add a
reference to the Unitaid case in footnote 5.

Finally, on Questions #5 and #6, I would suggest retaining them in the
note nevertheless. I understand George¹s point, but it may be helpful to
indicate the concerns of this WG so that while the IGOs may not be in a
position to provide a full or authoritative answer, they will have the
opportunity to explain why these concerns are misplaced (if that is what
they believe to be the case).

Thank you for the substantive feedback, George, and thanks in advance to
others who may weigh in as well.

Cheers
Mary

Mary Wong
Senior Policy Director
Internet Corporation for Assigned Names & Numbers (ICANN)
Telephone: +1 603 574 4892
Email: mary.wong at icann.org







-----Original Message-----
From: George Kirikos <icann at leap.com>
Date: Tuesday, March 17, 2015 at 18:57
To: Mary Wong <mary.wong at icann.org>
Cc: "gnso-igo-ingo-crp at icann.org" <gnso-igo-ingo-crp at icann.org>
Subject: Re: [Gnso-igo-ingo-crp] Follow up questions for IGO small group
on sovereign immunity

>There are more than simply 2 instances of IGOs bringing UDRPs. In
>particular, I managed to find that the Bank for International
>Settlements has five (5) other UDRPs that weren't referenced, namely:
>
>(1) bisettlement.com --
>http://www.wipo.int/amc/en/domains/decisions/html/2004/d2004-0571.html
>
>(2) bfisonline.net --
>http://www.wipo.int/amc/en/domains/decisions/html/2004/d2004-0575.html
>
>(3) bisonlinedept.com --
>http://www.wipo.int/amc/en/domains/decisions/html/2003/d2003-0987.html
>
>(4) bankforinternationalsettlement.com -
>http://www.wipo.int/amc/en/domains/decisions/html/2003/d2003-0986.html
>
>(5) bfis.net --
>http://www.wipo.int/amc/en/domains/decisions/html/2003/d2003-0984.html
>
>I also found another one that was brought, and then terminated, for
>"United States Fund for UNICEF", in relation to unicefonline.net/org:
>
>(6) http://www.udrpsearch.com/wipo/d2007-1920
>
>(both domains appear to have been transferred to the US Fund for UNICEF)
>
>Of course, there was also that UNITAID case we've discussed before,
>brought by the law firm as a proxy:
>
>(7) http://www.wipo.int/amc/en/domains/search/text.jsp?case=D2012-1922
>
>involving unitaid.biz/com/info/net/org.
>
>Also, the United Nations World Food Programme brought a UDRP that was
>terminated:
>
>(8) http://www.udrpsearch.com/wipo/d2005-0099
>http://www.wipo.int/amc/en/domains/decisionsx/list.jsp?prefix=D&year=2005&
>seq_min=1&seq_max=199
>
>regarding wfpafrica.com, wfpasia.com, wfpenvironment.com, wfpnews.com
>worldfoodprogram.com, worldfoodprogrammes.com
>
>(seems some of those domains are now available!)
>
>Given the increase in the number of discovered cases, one might need
>to rethink the use of phrases like "limited instances" (first
>paragraph of page 2), or "rare decisions" (last paragraph of page 2).
>Given the small number of IGOs in relation to all potential
>complainants, it might turn out that they've filed a statistically
>proportionate number of cases, all things considered (which might
>inform the question as to whether they've actually been deterred from
>filing cases, as they suggest -- statistics might prove otherwise).
>
>As for the questions on the list, I think Question #5 isn't one where
>the IGOs can give an authoritative answer -- they're not the
>individuals being prejudiced. IGOs should should only be asked
>questions that are within their knowledge. Similarly #6 isn't
>something they would be able to answer -- it's really something for us
>to answer (like #5).
>
>One might expand on #4, in particular ask directly about IGOs
>initiating their own actions in national courts, whether they *ever*
>do that themselves -- we already know of at least 2 cases, as
>discussed previously:
>
>http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2015-March/000302.html
>
>They should give us more examples where they've brought cases (e.g. in
>other countries). I would be amazed if those were the only 2 cases
>ever brought (indeed, I'd be skeptical if they couldn't produce
>others). Why should IGOs be treated differently, if they've brought
>cases themselves before the courts?
>
>One might also ask in relation to Paul Keating's idea that if the
>nature of the mutual jurisdiction (waiver of immunity) was expressly
>made limited, i.e. circumscribed to apply *only* to the domain name
>under dispute for IGOs, and nothing else (i.e. not to attack the
>assets of the IGOs), whether that accommodates the concerns of the
>IGOs.
>
>For footnote #5, one might want to directly reference the UNITAID
>case, in case the IGOs aren't aware of that technique.
>
>Sincerely,
>
>George Kirikos
>416-588-0269
>http://www.leap.com/
>
>On Tue, Mar 17, 2015 at 2:04 PM, Mary Wong <mary.wong at icann.org> wrote:
>> Dear WG members,
>>
>> Please find attached a draft note addressed to the IGO small group that
>>was
>> prepared by the WG co-chairs and staff, based on recent WG discussions
>>and
>> research done to date on the sovereign immunity issue. The co-chairs
>>propose
>> that following review and approval from the WG, they send these
>>questions
>> along with a cover note to the IGO small group, in the hope that the IGO
>> representatives will continue to be responsive and helpful to ICANN¹s
>> efforts to work through the matter. The cover note will include the WG¹s
>> thanks to the IGO small group for its January response, along with an
>>update
>> on the WG¹s current thinking on the ³standing² issue and Article 6ter
>>of the
>> Paris Convention.
>>
>> Please reply to the list via email with any comments you or your groups
>>may
>> have on the document as soon as you can. For your information, you will
>>see
>> from the draft that we have added another UDRP decision to the World
>>Bank
>> example that George provided earlier in our deliberations ­ this second
>>case
>> concerns the Bank for International Settlements, which also is on the
>>GAC
>> list of IGOs dating from 2013. I attach also an updated version of the
>>staff
>> Briefing Note on sovereign immunity and IGOs that was circulated last
>>week ­
>> this update adds a reference to the Canadian statute that the Canadian
>> Supreme Court relies on in the NAFO case which George brought to the
>>WG¹s
>> attention last week.
>>
>> Finally, please note that the GNSO Council has been updated on the WG¹s
>> progress during our recent face-to-face facilitated meeting in
>>Singapore,
>> and will take up at its meeting on Thursday the specific question of
>>whether
>> they agree with the WG¹s thinking that the list of IGOs in the WIPO
>>database
>> who requested Article 6ter protection should be the list upon which the
>>WG¹s
>> recommendations (if any) will be based, especially for ³standing² and in
>> principled preference to the original GAC list, which contains IGOs
>>selected
>> based on fulfillment of the .int eligibility criteria and which was the
>>list
>> that our WG was chartered to discuss. We will provide the WG with a
>>further
>> update following the Council¹s deliberations on this point later this
>>week.
>>
>> Thanks and cheers
>> Mary
>>
>> Mary Wong
>> Senior Policy Director
>> Internet Corporation for Assigned Names & Numbers (ICANN)
>> Telephone: +1 603 574 4892
>> Email: mary.wong at icann.org
>>
>>
>>
>>
>>
>> _______________________________________________
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>> Gnso-igo-ingo-crp at icann.org
>> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
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