[Gnso-igo-ingo-crp] Co-Chairs' proposal for Working Group consideration - UPDATED

Wed Oct 4 18:44:25 UTC 2017

Paul:

In regard to this –
We need to make it very clear, no matter how unpalatable the position, that the IGOs would not be entitled to immunity when initiating proceedings in any other forum.

- I shall reply as diplomatically as possible in a personal capacity.

First, it is not within our WG’s or ICANN’s power to deny any party – registrant or complainant - its legal rights, or to dictate the outcome of a judicial proceeding. Just as we decided it would be both futile and inappropriate to attempt to deny a domain registrant its access to a post-UDRP decision in a court of mutual jurisdiction, I do not see that we have the ability to stop an IGO from asserting its immunity defense claim when it is an involuntary party to a judicial proceeding, or to direct the court to reject that claim. Our Final Report will have best assurance of acceptance if we remain neutral on all post-UDRP legal issues for all parties.

Second, I realize that Option A (and Option B, as it incorporates Option A for grandfathered domains)  is consistent with your position because it essentially tells IGOs that if they raise an immunity defense notwithstanding the mutual jurisdiction clause of the UDRP and succeed in convincing the court that it cannot exercise its power over them, the action will be futile because the prior UDRP decision will then be vitiated. While I cannot absolutely guarantee that the GNSO Council will reject our Final Report if it contains Option A or B I do believe that there is a high probability of that action. And, in the unlikely event that Council does approve it, I can guarantee that the IGOs will have the GAC provide very adverse advice to the Board regarding our recommendations, and specifically on Option A on these likely grounds:

·         If the UDRP panel was correct in its original decision finding of bad faith registration and use (cybersquatting) then the bad acts would be permitted to continue unabated (unless the IGO under compulsion waived its claimed immunity).

·         This is a reversal of current UDRP policy and rules, which hold that if a UDRP-subsequent judicial action is dismissed then the stay on enforcement of the UDRP decision is lifted and the domain transfer or extinguishment proceeds – as well as contrary to consistent GAC advice that all post-UDRP appeals should go to arbitration when an IGO is complainant

·         Option A is therefore at odds with our Charter charge that we assure that IGOs have effective access to CRP.

To be clear, those are the arguments I anticipate, not arguments I am making. But I am positing that inclusion of Option A will likely block adoption of our entire Report and make the 3+ years of work we have expended for naught – that is why I have referred to it as the “Thelma and Louise option, because I think the WG would be driving off a cliff. Given that this final debate is centered on a hypothetical situation (successful IGO assertion of judicial immunity) that has not and may never occur, I find that outcome unacceptable.

On the contrary, Option C stays even-handedly neutral on available legal rights and judicial access and  determinations for both parties. Yet it takes the position we will change the UDRP policy or rules to assure that if the IGO succeeds in its claim of judicial immunity then  a registrant still gets a determination as to the disposition of its domain under the national law that gave rise to the judicial appeal. We preserve an IGO’s right to claim immunity, and we preserve the registrant’s access to meaningful appeal – and that is a significant improvement for registrants over the current situation.

I believe that Option C is an eminently defensible position and that a Final Report containing it will be approved by the Council -- perhaps even with a supermajority vote that makes Board rejection more difficult, even if the GAC gives contrary advice (and noting that the contrary GAC advice will be of far narrower scope in this scenario than the bullet points above) .

Best, Philip

Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/Cell

Twitter: @VlawDC

"Luck is the residue of design" -- Branch Rickey

From: Paul Tattersfield [mailto:gpmgroup at gmail.com]
Sent: Wednesday, October 04, 2017 12:58 PM
To: Phil Corwin
Cc: George Kirikos; gnso-igo-ingo-crp at icann.org
Subject: Re: [Gnso-igo-ingo-crp] Co-Chairs' proposal for Working Group consideration - UPDATED

I understand the need for diplomacy and the politics involved however I am concerned that the proposals before the working do not articulate the correct equtable and legal position.

We need to make it very clear, no matter how unpalatable the position, that the IGOs would not be entitled to immunity when initiating proceedings in any other forum.

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.

I appreciate this is a very precise legal point and even Prof. Swaine confused this in his reasoning* but we as a working group have no excuse.

Best regards,

Paul.

*In 3. Discussion (Page 8) Swaine says:

"The core question is whether an IGO is “entitled to immunity,” but the baseline assumptions may be disaggregated. An IGO’s immunity would be most clearly at issue if the IGO had not itself initiated any related judicial proceeding—since that would risk waiving any immunity to which it would be entitled, including to counterclaims18—and the UDPRP’s Mutual Jurisdiction provision were absent. This might be the case, for example, where a domain-name registrant has sought a declaratory judgment in relation to some actual or potential infringement by an IGO.19 Although that is not the scenario of principal concern here, imagining that scenario usefully isolates the question as to whether an IGO has a legitimate expectation that it would be entitled to immunity absent the UDRP and its concessions. If such immunity is minimal or uncertain, then any compromises required by the UDRP loom less large; if the IGO would otherwise be entitled to immunity, however, its potential sacrifice seems more substantial."

On Wed, Oct 4, 2017 at 2:40 PM, Phil Corwin <psc at vlaw-dc.com<mailto:psc at vlaw-dc.com>> wrote:
George:

You are correct, and I hereby offer a Mea Culpa for that incorrect sentence, which I authored. It was a mistake on my part rather than any attempt to mislead the WG.

My personal view remains that Option A would be DOA upon arrival at the GNSO Council, and that Option B would suffer the same fate because it adopts Option A for all grandfathered domains. The bigger problem is that such rejection might bring down the entire Final Report.

Best, Philip

Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597<tel:202-559-8597>/Direct
202-559-8750<tel:202-559-8750>/Fax
202-255-6172<tel:202-255-6172>/Cell

Twitter: @VlawDC

"Luck is the residue of design" -- Branch Rickey

-----Original Message-----
From: gnso-igo-ingo-crp-bounces at icann.org<mailto:gnso-igo-ingo-crp-bounces at icann.org> [mailto:gnso-igo-ingo-crp-bounces at icann.org<mailto:gnso-igo-ingo-crp-bounces at icann.org>] On Behalf Of George Kirikos
Sent: Wednesday, October 04, 2017 6:39 AM
To: gnso-igo-ingo-crp at icann.org<mailto:gnso-igo-ingo-crp at icann.org>
Subject: Re: [Gnso-igo-ingo-crp] Co-Chairs' proposal for Working Group consideration - UPDATED

In my email last week:

http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-September/000849.html

I pointed out various flaws in the "Preliminary Notes" section:

http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-September/000849.html

e.g. in relation to Option B, it was asserted:

"They also observe that it would leave registrants of grandfathered domains without any arbitral appeal option in the event that an IGO successfully invoked judicial process immunity."

which is obviously incorrect, because in that scenario "Option A"
would apply, and there would not be any need for the registrants to seek arbitration, given the UDRP decision would be vitiated.

Sincerely,

George Kirikos
416-588-0269<tel:416-588-0269>
http://www.leap.com/

On Wed, Oct 4, 2017 at 2:52 AM, Steve Chan <steve.chan at icann.org<mailto:steve.chan at icann.org>> wrote:
> Dear WG Members,
>
>
>
> Taking into account the WG members’ conversations on the 28 September
> WG meeting, staff has updated the “Options Proposal for WG Discussion”
> document for continued discussion on the upcoming 5 October meeting.
> It is anticipated that the conversation will return to Option B and
> then continue to then discuss Option C.
>
>
>
> Please do let us know if anything might require adjustment prior to
> the WG’s next meeting.
>
>
>
> Best,
>
> Steve
>
>
>
>
>
>
>
>
>
>
>
>
>
> Steven Chan
>
> Policy Director, GNSO Support
>
>
>
> ICANN
>
> 12025 Waterfront Drive, Suite 300
>
> Los Angeles, CA 90094-2536
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