[Gnso-igo-ingo-crp] PLEASE READ: Co-Chairs' proposal for moving forward to determining consensus

[Paul Tattersfield]

Mary, I respectfully disagree with this approach as I believe it hinders
our attempts to find the correct solution.

Please can either of the co-chairs provide a simple written reply
confirming that they accept the reasoning below * or in the alternative
that they disagree with it, please can they provide a reasoned explanation
as to why it should be refuted?

Thanks,


Paul


** Why the IGOs are never entitled to an immunity defence*

Absent UDRP there are two possible ways the immunity question could come
before a court:

(a) A TM owner seeks to acquire a domain which an IGO has registered
(b) An IGO seeks to acquire a domain which a domain registrant has
registered

In (a) the IGO would be entitled to raise an immunity defence
In (b) the IGO would be required to waive immunity for the court to
consider the matter.

As the UDRP is an administrative procedure to help take less complex cases
out of the judicial system if UDRP is to afford the same protections as any
other forum then UDRP needs to take into account both cases.

(a) A TM owner seeks to acquire a domain which an IGO has registered by
bringing a UDRP
(b) An IGO seeks to acquire a domain which a domain registrant has
registered by bringing a UDRP

The working group has not looked at (a) which hides the fact that in (b)
the IGO is never entitled to immunity under any circumstances after
initiating an action.

Most of the reasoning in the Swaine report applies to (a) and is therefore
not relevant to the working group's report as we are not considering (a)
the case where a TM holder initiates UDRP proceedings against an IGO.

For example from the working group’s draft report (page 17):



*There is no single universal rule that is applicable to IGOs’
jurisdictional immunity globally. Rather, such immunity is essentially
contextual - IGOs generally enjoy immunity under international law, but
different jurisdictions apply the law differently, and even within the same
jurisdiction different IGOs may be treated differently:*Including this is
clearly incorrect as this reasoning can not be applied to (b) and the
report does not consider (a)



On Mon, Dec 18, 2017 at 4:46 PM, Mary Wong <mary.wong at icann.org> wrote:

> The following email is being sent on behalf of Philip Corwin & Petter
> Rindforth (WG co-chairs).
>
>
>
>
>
> It is the view of the co-chairs that our exhaustive discussion of the
> options for dealing with the potential situation of an IGO successfully
> asserting an immunity claim in a judicial context have reached an end
> point; that all issues relevant to our Charter have been raised, understood
> and discussed; and that further discussion is unlikely to yield additional
> options that enjoy consensus support, or sway the view of Working Group
> participants regarding which option should prevail.
>
>
>
> Therefore, the co-chairs intend to proceed in the following manner:
>
>
>
>    - If a significant number of WG members believe that further oral
>    discussion of the three additional options that will be presented in a
>    final consensus call is needed, supplementing the three that were presented
>    for WG consideration in our preliminary consensus call held in October
>    2017, and that email list discussion is insufficient for WG members to
>    understand the intent and effect of all six options to be included in the
>    consensus call, we will hold a WG meeting on December 21st at our
>    regular time. *Please respond to the mailing list if you believe a
>    call on December 21st is needed*.
>
>
>
>    - On December 22nd, a second poll will be sent to all WG members. The
>    purpose of this poll is to assist the co-chairs in determining the level of
>    support/opposition that each option enjoys. This poll will ask all WG
>    members to designate one of the six options as their preferred choice for
>    addressing the IGO immunity issue. WG members will also be provided with
>    means to add comments regarding that preferred choice, as well as each of
>    the other five options. These comments can indicate support or opposition
>    for each of the options, as well as whatever additional views a WG members
>    wishes to provide. Responses to this poll will be anonymous, although any
>    WG member will be free to share his/her response on the WG email list. *The
>    poll will remain open until Friday January 5th, 2018*. The aggregated
>    results of the poll, as well as all comments, will be shared with all WG
>    members and will be included as a section of our Final Report.
>
>
>
>    - Once the poll closes, the co-chairs will review all responses and
>    then share their views with WG members regarding the level of consensus
>    that each option enjoys. We hope to hold the *first meeting of the WG
>    on January 11th, 2018* in order to discuss poll results and the
>    co-chairs’ evaluation. The GNSO WG Guidelines provide all WG members with
>    an opportunity to provide feedback on those proposed classifications, and
>    the final consensus level for each option included in the Final Report will
>    be determined under the procedure provided in the Guidelines. As soon as
>    that process is completed we will publish a draft Final Report for WG
>    review and comment, and will provide a reasonable time for all WG members
>    to draft and submit Minority views. *We will try to have our Final
>    Report ready for submission to the GNSO Council in order to meet the
>    February 12th, 2018 document submission deadline*, at the latest, for
>    its February 22nd meeting.
>
>
>
> Please let us know if you have any questions about this procedure. Thank
> you.
>
>
>
> _______________________________________________
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>
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