[Gnso-igo-ingo-crp] A clean appraisal regarding NGOs

[Paul Keating]

All,
 
After much consideration a light has suddenly appeared.  We need do nothing
in this case at all.  The answers exist in the current Policy.
 
Here is a summary of my proposal.  I ask that it be discussed at the next
call and if necessary we retain counsel to determine if it is legally sound.
 
The current UDRP requires that complainants waive any claim as against the
ADR provider.  There is no similar provision for respondents.  The result is
that Complainants waive claims against that ADR provider.  Respondents do
not.
 
     Complainants:  (xiii) Conclude with the following statement followed by
the signature (in any electronic format) of the Complainant or its
authorized representative:
"Complainant agrees that its claims and remedies concerning the registration
of the domain name, the dispute, or the dispute's resolution shall be solely
against the domain-name holder and waives all such claims and remedies
against (a) the dispute-resolution provider and panelists, except in the
case of deliberate wrongdoing, (b) the registrar, (c) the registry
administrator, and (d) the Internet Corporation for Assigned Names and
Numbers, as well as their directors, officers, employees, and agents."

"Complainant certifies that the information contained in this Complaint is
to the best of Complainant's knowledge complete and accurate, that this
Complaint is not being presented for any improper purpose, such as to
harass, and that the assertions in this Complaint are warranted under these
Rules and under applicable law, as it now exists or as it may be extended by
a good-faith and reasonable argument."

 

Respondents:  (viii) Conclude with the following statement followed by the
signature (in any electronic format) of the Respondent or its authorized
representative:
 
"Respondent certifies that the information contained in this Response is to
the best of Respondent's knowledge complete and accurate, that this Response
is not being presented for any improper purpose, such as to harass, and that
the assertions in this Response are warranted under these Rules and under
applicable law, as it now exists or as it may be extended by a good-faith
and reasonable argument."

 

 
 
 
 
The current UDRP provides for a Mutual Jurisdiction (MJ) designation.  All
complainants MUST designate an MJ. An MJ is (generally):
 
            Location of registrar per ICANN
            Location of registrant as stated in the WHOIS
 
There is some uncertainty as to whether the Mutual Jurisdiction selection
constitutes a waiver of Sovereign Immunity.
 
An order of an ADR provider must be complied with unless a losing respondent
commences a legal action in the MJ within a 10-business-day period.
 
The issue with NGOs is that they do not wish to subject themselves to
potential liability of national courts - Sovereign Immunity.
 
Legally, there are 3 potentially interested parties:
 
(1) Respondent, 
(2) Complainant (NGO), and
(3) ADR Provider.
 
A court may generally only issue orders directing an interested party to do
(or refrain from doing) something.  This might be, ³pay the claimant
damages².  It might be ³refrain from doing XXX².  Very few courts will order
a person to DO something other than pay damages.  Courts are most likely to
order an interested party to NOT DO something.  The reason for this is that
the standard for ordering a person to do something is higher than the
standard to actual NOT do something.  This bears relation to unique legal
issues like specific performance (an order that a party must do something).
Such remedies are rare in the US although more normal in Europe.
 
What I propose is that we essentially ignore the NGOs in this issue and
instead focus on the other parties having an interest in this issue and thus
subject to the court¹s order ­ the ADR provider.
 
The current UDRP obligates the complainant to waive claims against the ADR
provider to protect the ADR provider from damages resulting from its
decisions.  There is no similar waiver by the Respondent.
 
The common practice amongst attorneys is to name any person or entity that
potentially has a relationship to the potential remedy.  This is done so
that the court can issue an order that has the actual force of law.  The
court can only order people to do something if they have appeared before the
court or had an opportunity to do so.
 
In the context of a typical UDRP, there are 4 parties that have potential
control over the remedy ­ or an interest:
 
1.            Registrant

2.            Complainant

3.            Registrar

4.            ADR Provider

 
Typically, in post-UDRP an attorney would name as defendants only the
complainant and the registrar.  The reason for this is that in most
post-UDRP decisions the ADR is seen as a neutral party.
 
However, in US jurisdiction, court orders are often challenged by naming the
court as a defendant.  The purpose of this practice is to ensure that any
appeals court decision is properly directed at the lower court ­ ordering it
to do (or not do) something. The most common remedy sought is to invalidate
a prior order of the lower court.  Thus, the lower court is often named as a
real party in interest so that any decision by the appeals court can name
the lower court ­ ordering it to invalidate or enforce (or modify) its prior
decision.
 
My proposal recognizes that the ADR provider is a necessary party to any
post-UDRP litigation so that the court can actually order the appropriate
remedy. As a result, the participation of the NGO in the litigation should
have no legal bearing on whether or not the underlying UDRP decision is or
is not enforced.  Any recognition of the NGO¹s sovereign immunity should
only impact whether or not the NGO is liable in any manner to the respondent
(plaintiff).  Thus, a plaintiff who names the ADR provider and Registrar
should be able to obtain a court order granting relief (e.g. a confirmation
that the domain name should not be transferred) without regard to whether
the NGO did nor did not participate in the litigation.  In other words, any
claim by the NGO concerning Sovereign Immunity would have no impact on
whether the domain were transferred. Indeed its only impact would be to
prevent any order that the NGO do (e.g. pay damages) or refrain from doing
(stop issuing demands) anything.
 
The point is that WE DO NOT NEED TO DO ANYTHING  to address the concerns of
the NGOs as presented to the Working Group.


Sorry it took me so long to remember basic legal theory.


Anyone having an issue with the above analysis PLEASE feel free to poke
holes all over it.


Regards


Paul
 
 


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