[Gnso-igo-ingo-crp] Attempt at Achieving Full Consensus -- Option #4

[Mary Wong]

Hello George and everyone, 

If I may, I’d like to follow up on Phil’s note below, where he refers to the language of the UDRP (among other factors) to highlight the fact that the original panel decision will remain to be enforced in a case where an IGO successfully pleads jurisdictional immunity in the national court to which the losing respondent has chosen to submit the dispute. 

Although staff supporting this Working Group cannot claim to be international arbitration experts, it has seemed to us for some time that ICANN has no legal authority to nullify a panel’s decision (e.g. simply by adding a further provision to the UDRP and URS to that effect in the event the IGO and respondent end up in court). By going beyond its legal authority, ICANN may even be viewed as unduly interfering with the conduct and outcome of the mandatory administrative proceeding.

Where an IGO successfully pleads jurisdictional immunity as against a losing domain name registrant/respondent, this means in effect that the case cannot go forward as the court will not be able to hear the case. It is therefore reasonable to conclude that, in such a case, the original panel decision has to stand and the domain in question transferred or canceled, as the case may be.

From what I understand, this is basically what Phil, Petter and Paul have noted for the Working Group. The other point that I hope I may make in this email is to note that it is still possible that an IGO will be deemed to have submitted to the jurisdiction of a national court simply by choosing to file a UDRP/URS complaint and thus agreeing to the Mutual Jurisdiction clause. This risk, which was also noted by Professor Swaine, is relevant to both Options 1 & 2.  

I hope the above is helpful, especially for those Working Group members who have not been able to follow all the discussions as closely.

Thanks and cheers
Mary





(as we have noted this point during some Working Group calls)

On 7/19/17, 18:46, "gnso-igo-ingo-crp-bounces at icann.org on behalf of George Kirikos" <gnso-igo-ingo-crp-bounces at icann.org on behalf of icann at leap.com> wrote:

    Hi folks,
    
    On Wed, Jul 19, 2017 at 10:16 AM, Phil Corwin <psc at vlaw-dc.com> wrote:
    > As we prepare for this week’s call, I wanted to address your concern that I
    > was citing unnamed attorneys for the proposition that, if an IGO
    > successfully asserted an immunity defense today in a judicial appeal brought
    > by a domain registrant following an adverse UDRP decision the dismissal of
    > the court case would result in the release of the hold on the UDRP decision
    > and the subsequent extinguishment or transfer of the domain at issue. I was
    > by no means trying to pad this conclusion by the fact that I had also
    > conferred on this matter with some colleagues who engage in UDRP practice
    > (generally for registrants, not complainants), but I simply don’t feel that
    > I have the right to name these people to this list. That said, we had a
    > dialogue on this matter during our June 15th meeting and both Petter and
    > Paul Keating concurred with that conclusion (see transcript of audio and
    > chat below).
    
    Exactly how much research time was devoted into coming up with those
    opinions? I note Professor Swaine's opinions came with much scholarly
    research and time invested, and cited authorities of various courts.
    Instead, these conclusions come with no legal authorities.
    
    > A look at the text of the UDRP leads to the same conclusion as well:
    
    It's been assumed in the analysis that the only court action must be
    against the complainant (IGO) in the UDRP. That need not be the only
    option open to a domain name owner.
    
    I've actually talked to my own lawyers about how best to approach
    things (I've already hinted on this list how that would happen, even
    if the IGO could assert immunity successfully, for the sake of
    arguments). I'll see if I can share the results of that (paid)
    research later this week or next, once that research is concluded.
    
    Not to pick on Paul Keating, but he's also the person who last week
    presented a proposal "after much consideration" that contained a very
    serious flaw (forgetting to look at the supplemental rules) that
    undermined that opinion in mere minutes of research:
    
    http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-July/000785.html
    
    That doesn't necessarily mean his conclusion on this other issue is
    wrong, but I don't think it's necessarily right (see the section I
    highlighted above, and past discussions on strategies of dealing with
    an appeal without involving immunity). Legal issues are rarely "easy"
    ----- they might look like that "on paper". Just like in sports,
    someone might appear an "overwhelming favourite", but that's why they
    play the games, to see who actually wins, instead of relying on "paper
    matches" or theory. The fact that there are no direct precedents on
    these issues (domain cases involving IGOs that have gone to the
    courts) leaves lots of room for doubt on all sides.
    
    > Finally, in regard to the language of the Tucows agreement that you cited,
    > that is of course between the registrar and its registrant customer and does
    > not bind an IGO complainant.
    
    It does bind the IGO complainant, the moment the domain name transfers
    to them!  An IGO can't be a registrant without agreeing to the
    registration agreement, which would again subject them to the
    jurisdiction of the courts for disputes.
    
    Sincerely,
    
    George Kirikos
    416-588-0269
    https://urldefense.proofpoint.com/v2/url?u=http-3A__www.leap.com_&d=DwIGaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=Qpm9ek6ydprR0CXZvh2tm_MZiBy0SuhgjVz5ekib2WM&s=P-XesnyZMqkAoZjgMRky4f6bsXM8jQdnZXPeF2hGzqk&e= 
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