[Gnso-igo-ingo-crp] [Ext] Re: Question about Professor Swaine's memo
Paul Keating
Paul at law.es
Wed Jun 13 18:26:43 UTC 2018
Well it seems I was incorrect on saying Mary was not an attorney.
However, Mary and no offense intended - you still got it completely wrong.
Paul
From: "Corwin, Philip" <pcorwin at verisign.com>
Date: Wednesday, June 13, 2018 at 8:17 PM
To: Paul Keating <paul at law.es>, "mary.wong at icann.org"
<mary.wong at icann.org>, "gpmgroup at gmail.com" <gpmgroup at gmail.com>
Cc: "haforrestesq at gmail.com" <haforrestesq at gmail.com>,
"Donna.Austin at team.neustar" <Donna.Austin at team.neustar>,
"gnso-igo-ingo-crp at icann.org" <gnso-igo-ingo-crp at icann.org>,
"rafik.dammak at gmail.com" <rafik.dammak at gmail.com>
Subject: RE: [Gnso-igo-ingo-crp] [Ext] Re: Question about Professor
Swaine's memo
> FYI‹
>
> https://www.icann.org/profiles/mary-wong
> <https://www.icann.org/profiles/mary-wong>
>
> Mary Wong joined ICANN as a Senior Policy Director in 2013. Mary is a member
> of the Policy Team performing global policy development work and her
> responsibilities encompass managerial, analytical and research related duties.
> She also supports the Generic Names Supporting Organization (GNSO) with legal
> and policy advice and research. Prior to joining ICANN, Mary was a tenured
> professor of law in the United States and she has also been associated with
> the technology transactions practice group of a major international law firm.
> She holds a Bachelor of Laws degree from the National University of Singapore
> and a Master of Laws degree from Cambridge University in the United Kingdom.
>
>
> Philip S. Corwin
> Policy Counsel
> VeriSign, Inc.
> 12061 Bluemont Way
> Reston, VA 20190
> 703-948-4648/Direct
> 571-342-7489/Cell
>
> "Luck is the residue of design" -- Branch Rickey
>
>
> From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces at icann.org] On Behalf
> Of Paul Keating
> Sent: Wednesday, June 13, 2018 2:07 PM
> To: Mary Wong <mary.wong at icann.org>; Paul Tattersfield <gpmgroup at gmail.com>
> Cc: haforrestesq at gmail.com; Donna.Austin at team.neustar;
> gnso-igo-ingo-crp at icann.org; rafik.dammak at gmail.com
> Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] [Ext] Re: Question about Professor
> Swaine's memo
>
>
> Mary,
>
>
>
> With all respect, you are very very incorrect regarding the jurisprudence of
> sovereign immunity.
>
>
>
> The doctrine does exist in several treaties. Treaties in turn (by definition)
> constitute the supreme law of each jurisdiction having agreed to them. This
> is the case in the US just as in other jurisdictions.
>
>
>
> The doctrine also exists in statutory form in virtually all jurisdictions,
> including the US.
>
>
>
> The doctrine is NOT a judicially created doctrine. The APPLICATION of the law
> (either via treaty or statute) is a function of the judiciary. In common law
> jurisdictions, the resulting case opinion can be cited as president in other
> disputes as relevant and if applicable are controlling in any future dispute
> brought before subservient courts in the same judiciary branch (e.g. In the
> US, decisions of the US Supreme Court bind all federal courts but they bind
> State courts only as to matters of federal law - State supreme courts govern
> those state courts below them in authority with respect to state law matters).
> The same applies in virtually all, if not all, other countries. In noncommon
> law jurisdictions prior judicial decisions are informative only but not
> precedential.
>
>
>
> I know you are not a lawyer and are trying to help. However, mis-stating the
> law is in reality not helpful and leads to a great deal of confusion which
> takes a good amount of effort to rectify.
>
>
>
>
>
>
>
> As to Professor Swain, you are confusing two issues namely:
>
>
>
> Impact when the IGO brings an action as the plaintiff (or claimant)
>
>
>
> Impact when the IGO is merely a defendant.
>
>
>
> In the former, the IGO is always deemed to have waived immunity. This is
> stated in Swain¹s memo.
>
>
>
> In the latter, the IGO preserves issues of immunity because it did not
> initiate the process. It can be held to NOT have immunity based on the reason
> it has been brought into court.
>
>
>
> In the UDRP context, the IGO initiated the process AND that process expressly
> contains a right to seek post UDRP litigation remedies. As concerns the
> Respondent, the right to post-UDRP litigation is an absolute right. As
> concerns the Complainant (the IGO), post-UDRP litigation remains an option.
>
>
>
> The Policy clearly provides for the selection of a Mutual Jurisdiction that
> applies in the event of post-UDRP litigation BUT the selection is make ONLY by
> the Complainant. There is no provision by which the Respondent agrees to any
> jurisdiction for post-UDRP litigation.
>
>
>
> Thus, because the Policy contains an express right for the Respondent to
> pursue post-UDRP litigation AND contains a MJ selection for that very purpose,
> it is the NGO who has waived immunity claims. Thus, the post-UDRP litigation
> is in effect a continuation of the prior UDRP an action brought by the NGO.
>
>
>
> The issue is far different from that occurring if the domain owner merely
> initiated litigation to seek declaratory relief (a declaration that the domain
> name did not infringe). In such a case, it would be new litigation and not a
> continuation of process. The NGO thus retains any immunity defense it
> otherwise had.
>
>
>
> In his memo, Swain (rather in-artfully) switches from one situation to another
> but does not clarify that the analysis changes depending on the situation.
> This leads to a confusion as to whether the issue of immunity remains
> applicable in the context of post-UDRP litigation.
>
>
>
> I believe this is what is eating at Paul.
>
>
>
> As to the transfer, I believe Paul is referring to the fact that the UDRP
> itself has resulted in a decision to transfer a property right from the
> Respondent to the NGO. The Respondent has the right to suspend the effect of
> the UDRP decision (transfer of the domain) by timely filing litigation in the
> MJ. The UDRP decision is then held in abeyance pending the outcome of the
> post-UDRP litigation. Thus, in effect a transfer of rights has occurred. It
> is just the carrying out of the actual transfer that has been deferred.
>
>
>
> I think we can all agree that the Policy was never intended to allow for such
> post-UDRP litigation but then preclude any remedy to the Respondent because of
> immunity issues belatedly asserted by the UDRP complainant. Such would
> undercut the most basic of foundational elements of the policy that the
> rights to judicial review remain.
>
>
>
> I hope this helps.
>
>
>
> @Paul, please chip in if I have made an error above.
>
>
>
>
>
> Paul
>
>
>
>
>
>
>
> From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces at icann.org> on behalf of
> Mary Wong <mary.wong at icann.org>
> Date: Wednesday, June 13, 2018 at 7:19 PM
> To: Paul Tattersfield <gpmgroup at gmail.com>
> Cc: "Donna.Austin at team.neustar" <Donna.Austin at team.neustar>,
> "haforrestesq at gmail.com" <haforrestesq at gmail.com>,
> "gnso-igo-ingo-crp at icann.org" <gnso-igo-ingo-crp at icann.org>,
> "rafik.dammak at gmail.com" <rafik.dammak at gmail.com>
> Subject: Re: [Gnso-igo-ingo-crp] [Ext] Re: Question about Professor Swaine's
> memo
>
>
>>
>> Dear Paul,
>>
>> Thank you for following up; that was indeed the staff email I was referring
>> to on the Working Group call yesterday.
>>
>> If you can provide further explanations, staff believes that will be helpful
>> to the group. For our part (and I note again that we are very cognizant of
>> our proper role as staff) we simply do not read Professor Swaine¹s memo the
>> same way that you seem to have. It seems clear to us that Professor Swaine
>> expressly notes that in a case where it is the IGO that initiates proceedings
>> (in this case, under the UDRP or URS), it is possible, even likely, that this
>> will mean it will have waived its jurisdictional immunity because of the
>> Mutual Jurisdiction clause as currently worded. He does, however, correctly
>> note that whether or not this will always be the case depends on the
>> jurisdiction where the respondent chooses to file its case, as that is a
>> question for that court to rule on. We note further that jurisdictional
>> immunity is based in customary international law and, although in some cases
>> has been enshrined as formal legal doctrine in certain international
>> treaties, remains in many cases judge-made law.
>>
>> We also do not understand your statement that there is a ³transfer² of
>> immunity rights between the two scenarios you mention. We simply do not see
>> where, when or how that can even happen - they are two separate types of
>> legal proceedings, and while it is true that in the former scenario the IGO
>> is the defendant and in the latter it is the plaintiff, as mentioned in the
>> previous paragraph, Professor Swaine has clearly noted that where the IGO is
>> the plaintiff/initiator of proceedings it will likely be deemed to have
>> waived its immunity. More specifically, we do not understand what ³transfer²
>> of legal rights will have taken place as there are none, especially as
>> jurisdictional immunity as a legal doctrine does not amount to substantive
>> legal rights that can be transferred.
>>
>> We apologize if we appear to be trying to counter arguments brought forth by
>> Working Group members since we are not ourselves participants in the group,
>> but in our role as subject matter advisors we really hope that Paul can
>> provide clarification.
>>
>> Thank you.
>>
>> Best regards,
>> Mary & Steve
>>
>>
>> From: Paul Tattersfield <gpmgroup at gmail.com>
>> Date: Wednesday, June 13, 2018 at 06:57
>> To: Mary Wong <mary.wong at icann.org>
>> Cc: "Corwin, Philip" <pcorwin at verisign.com>, "haforrestesq at gmail.com"
>> <haforrestesq at gmail.com>, "Donna.Austin at team.neustar"
>> <Donna.Austin at team.neustar>, "gnso-igo-ingo-crp at icann.org"
>> <gnso-igo-ingo-crp at icann.org>, "rafik.dammak at gmail.com"
>> <rafik.dammak at gmail.com>
>> Subject: [Ext] Re: Question about Professor Swaine's memo
>>
>>
>>
>> Dear Mary,
>>
>> In today¹s chat room you mentioned your reply in April to my very serious
>> concerns about the Swaine Memo. The only email I have on file is the one
>> below. I can deal with each of the points you raise should you so wish,
>> however, each of those points are dependant on the incorrect assumption
>> Professor Swaine made on pages 8 & 9 of his report.(on pages 83 & 84 of the
>> WG final report) that immunity rights can be transferred between the two
>> scenarios where the immunity question could come before a court.
>>
>> I have detailed below my concerns clearly in colour for the benefit of the
>> working group so anyone can quickly see where and how the professor relied on
>> what I believe to be an incorrect assumption and upon which the whole of his
>> report then incorrectly relies.
>>
>> I have researched this issue and I can not find any jurisdiction, on any
>> matter (not just domain names) in any forum where an IGO would be entitled to
>> jurisdictional immunity after initiating proceedings. I have asked the
>> working group if anyone can refute my reasoning several times on the email
>> list and I raised it on the call prior to Phillip¹s resignation. Each time
>> not a single person has been able to demonstrate I am in fact incorrect and
>> several people have indicated they believe I am right. I have discussed this
>> matter with people with a broad range of interests including people who have
>> represented IGO interests at ICANN and I can not find a single person who can
>> find any issue with my reasoning.
>>
>> Given the whole of the WG¹s final report is premised on Professor Swaine¹s
>> assumption being correct I would be very grateful if you can show me why any
>> of my reasoning in the proof below is not correct and how Professor Swaine
>> can possibly be right.
>>
>> Yours sincerely,
>>
>>
>> Paul
>>
>>
>>
>> https://community.icann.org/pages/viewpage.action?pageId=56131791
>> [community.icann.org]
>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_pag
>> es_viewpage.action-3FpageId-3D56131791&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbP
>> SS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=EBKiNgHmqL68
>> bsFaEsNNKlLqZO_hrEY4p0DHiAv1NSw&s=ahWQUHMJaL9LDnMiir5n2aozXA9CcznLOgRXr0OmlM8
>> &e=> which is marked final and dated 6/17/2016.
>>
>> From that document:
>> ³3. Discussion (Bottom of page 8)
>>
>> The core question is whether an IGO is ³entitled to immunity,² but the
>> baseline assumptions may be disaggregated. The scope of IGO immunity would
>> most clearly be at issue if the Mutual Jurisdiction provision were irrelevant
>> and the IGO had not itself initiated judicial proceedings, since that would
>> risk waiving any immunity to which it may be entitled, including to
>> counterclaims. 20 This might be the case, for example, if a domain-name
>> registrant sought a declaratory judgment against an IGO in relation to some
>> actual or potential infringement. 21 That scenario, though not otherwise of
>> concern here, does usefully isolate the question as to whether an IGO has a
>> legitimate expectation that it would be entitled to immunity absent the UDRP.
>> 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.
>>
>> As explained in Part A, the answer depends. 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. Part B then introduces the complication that any such
>> immunity may be waived through the Mutual Jurisdiction provision, and
>> affording such waiver is not the same thing as violating an IGO¹s immunity.
>> Part C then discusses alternative ways to resolve the situation. Š ³
>>
>> Green Initiating proceedings waives immunity including counterclaims
>> Blue Scenario (a) below
>> Red Transfers those rights of scenario (a) to scenario (b)
>>
>> The rest of the memo is then based on the incorrect assumption that rights
>> can be transferred between the two scenarios.
>>
>>
>> Proof
>>
>> 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
>>
>>
>> Conclusion
>>
>> The working group has not considered (a) which hides the fact that in (b) an
>> IGO is never entitled to jurisdictional immunity after choosing to initiate
>> proceedings. The incorrect Swaine reasoning introduces irrelevant complexity
>> which confuses rather than clarifies and should therefore have no place in
>> the working group¹s final report.
>>
>>
>>
>> [for those without colours here is an earlier link to a formatted .pdf
>> version of the above reasoning
>> http://mm.icann.org/pipermail/gnso-igo-ingo-crp/attachments/20180514/44788589
>> /VeryseriousissueswithTheSwaineMemotheproposedFinalReport-0001.pdf
>> <http://mm.icann.org/pipermail/gnso-igo-ingo-crp/attachments/20180514/4478858
>> 9/VeryseriousissueswithTheSwaineMemotheproposedFinalReport-0001.pdf> ]
>>
>>
>>
>>
>>
>> On Tue, Apr 24, 2018 at 11:51 PM, Mary Wong <mary.wong at icann.org
>> <mailto:mary.wong at icann.org> > wrote:
>>>
>>> Dear Paul and everyone,
>>>
>>> Staff is taking the liberty here of addressing your specific question about
>>> Professor Swaine¹s memo, including your concern that it may have analyzed a
>>> situation where it is not the IGO that commences proceedings but rather is
>>> the subject of proceedings against it by a trademark owner. We hope the
>>> following extracts from the memo will be useful in clarifying the basis on
>>> which Professor Swaine gave his opinion.
>>>
>>> * In his memo, Professor Swaine notes that he ³focuses on the most likely
>>> scenario: that in which an IGO, possessing rights in a name, abbreviation,
>>> emblem or the like arising under the Paris Convention Š has complained and
>>> prevailed before an administrative panel in Uniform Domain Name Dispute
>>> Resolution Policy (³Policy² or ³UDRP²) proceedings against a domain-name
>>> registrant‹resulting in an order of cancellation or transfer to which the
>>> losing registrant objects by commencing a judicial action Š ³ (see Page 77
>>> of the Working Group¹s Initial Report, at Annex G).
>>>
>>> * He notes that ³how matters unfold from that point [following the
>>> registrant¹s filing suit] will depend on national law² (Page 81, Annex G) as
>>> to the question, ³whether‹in light of an IGO¹s assent to Mutual
>>> Jurisdiction‹its immunity remains. Here, the more likely answer is that it
>>> would not Š The grant of Mutual Jurisdiction would likely establish such a
>>> waiver, as it would for a state entity otherwise entitled to foreign
>>> sovereign immunity. This waiver would be construed narrowly, but it would
>>> likely permit proceeding against an IGO in at least some domestic courts.
>>> The overall answer, then, is contingent. If there were no Mutual
>>> Jurisdiction clause, an IGO might be entitled to immunity from judicial
>>> process; in the status quo, however, it likely would not. Equitable
>>> considerations might influence any judicial analysis² (Page 78, Annex G).
>>>
>>> * Concluding that ³In short, the Mutual Jurisdiction clause means that
>>> participating IGOs will have agreed to the possibility of a judicial
>>> process, notwithstanding any immunity to which they otherwise would be
>>> entitled. This will loom largest in cases in which the IGO is the
>>> complainant and benefited from an initial panel decision in its favor, such
>>> that the decision to resort to judicial proceedings against the IGO‹and the
>>> risks that creates for adverse results‹is made by the private party² (Page
>>> 82, Annex G), Professor Swaine focuses the remainder of his memo on this
>>> scenario.
>>>
>>> * As part of his analysis, Professor Swaine also proposed a number of
>>> alternative policy proposals for the Working Group¹s consideration,
>>> including possibly amending the Mutual Jurisdiction clause or arbitration.
>>> These were noted and discussed on several Working Group calls in late 2016,
>>> prior to the issuance of the Initial Report in January 2017.
>>>
>>> While the above summary cannot reflect the entirety or depth of Professor
>>> Swaine¹s advice, staff thought it might be helpful to recall these points
>>> given the question raised by Paul. The full memo was attached to the Initial
>>> Report as Annex G:
>>> https://gnso.icann.org/sites/default/files/file/field-file-attach/igo-ingo-c
>>> rp-access-initial-19jan17-en.pdf [gnso.icann.org]
>>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_sites_d
>>> efault_files_file_field-2Dfile-2Dattach_igo-2Dingo-2Dcrp-2Daccess-2Dinitial-
>>> 2D19jan17-2Den.pdf&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=
>>> DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=EBKiNgHmqL68bsFaEsNNKlLqZO_hrE
>>> Y4p0DHiAv1NSw&s=Z4RHQ4HEv2BsNDE9-ScaJEfqb2_7E39gOxLYWD1KHnU&e=> .
>>>
>>> Thanks and cheers
>>> Mary & Steve
>>>
>>>
>>>
>>> From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces at icann.org
>>> <mailto:gnso-igo-ingo-crp-bounces at icann.org> > on behalf of Paul
>>> Tattersfield <gpmgroup at gmail.com <mailto:gpmgroup at gmail.com> >
>>> Date: Tuesday, April 24, 2018 at 10:49
>>> To: "Corwin, Philip" <pcorwin at verisign.com <mailto:pcorwin at verisign.com> >
>>> Cc: "haforrestesq at gmail.com <mailto:haforrestesq at gmail.com> "
>>> <haforrestesq at gmail.com <mailto:haforrestesq at gmail.com> >,
>>> "Donna.Austin at team.neustar <mailto:Donna.Austin at team.neustar> "
>>> <Donna.Austin at team.neustar <mailto:Donna.Austin at team.neustar> >,
>>> "gnso-igo-ingo-crp at icann.org <mailto:gnso-igo-ingo-crp at icann.org> "
>>> <gnso-igo-ingo-crp at icann.org <mailto:gnso-igo-ingo-crp at icann.org> >,
>>> "rafik.dammak at gmail.com <mailto:rafik.dammak at gmail.com> "
>>> <rafik.dammak at gmail.com <mailto:rafik.dammak at gmail.com> >
>>> Subject: Re: [Gnso-igo-ingo-crp] GNSO Council Liaison Summary Report (Re:
>>> IGO-INGO Curative Rights Policy Development Process Working Group)
>>>
>>>
>>>
>>> Dear Philip,
>>>
>>> In your reply to George Kirikos you stated:
>>>
>>> ³If it is judicial proceedings them [sic] of course an IGO's initiation of
>>> process indicates an implicit waiver of judicial immunity.²
>>>
>>> Thank you that is helpful.
>>>
>>> When I asked last year that the working group consider cases where an IGO
>>> could be entitled to immunity (i.e. when a TM holder seeks to secure a
>>> domain name owned by an IGO) I was told by those leading the working group
>>> that this scenario was not within the working group¹s charter.
>>>
>>> Swaine is an analysis of cases where an IGO is entitled to jurisdictional
>>> immunity in judicial forums. Given you have just stated:
>>>
>>> ³If it is judicial proceedings them [sic] of course an IGO's initiation of
>>> process indicates an implicit waiver of judicial immunity.²
>>>
>>> I fail to see how you can ever reconcile Swaine with ever being relevant to
>>> the working group¹s final report. I don¹t doubt it was expensive and
>>> interesting but if you want it to remain in the final report please can you
>>> reply showing how it could be in any way considered relevant?
>>>
>>> Yours sincerely,
>>>
>>>
>>> Paul
>>>
>>>
>>>
>>> On Fri, Apr 20, 2018 at 3:57 PM, Corwin, Philip <pcorwin at verisign.com
>>> <mailto:pcorwin at verisign.com> > wrote:
>>>>
>>>> Paul:
>>>>
>>>> Responding in an individual capacity -- Professor Swaine¹s memo is an
>>>> excellent explanation of the accepted scope of IGO judicial immunity and
>>>> the varied analytical approaches that national courts take in determining
>>>> the validity of IGO immunity defenses. I remain proud that we solicited
>>>> this expert input on the central legal issue before the WG, and
>>>> appreciative that ICANN funded the research.
>>>>
>>>> I am sure it will be of substantial assistance to whatever decisional body
>>>> determines how best to resolve the inherent conflict between statutory
>>>> rights of domain registrants and the desire of IGOs to have a means of
>>>> addressing cybersquatting that does not require full surrender of valid
>>>> claims to judicial immunity as a condition of bringing an action.
>>>>
>>>> Philip
>>>>
>>>> Philip S. Corwin
>>>> Policy Counsel
>>>> VeriSign, Inc.
>>>> 12061 Bluemont Way[maps.google.com]
>>>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-
>>>> 3D12061-2BBluemont-2BWay-2B-250D-250AReston-2C-2BVA-2B20190-26entry-3Dgmail
>>>> -26source-3Dg&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69
>>>> mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=fHE_Cr9toYeLCsl-trxHT_K7CdrHZ4uAV
>>>> Unv57xOoj8&s=CoaOz-PewsfP8inMwD1N5msXqqp7rInZbzZOhQAWtCc&e=>
>>>> Reston, VA 20190
>>>> 703-948-4648/Direct
>>>> 571-342-7489/Cell
>>>>
>>>> "Luck is the residue of design" -- Branch Rickey
>>>>
>>>> From: Paul Tattersfield [mailto:gpmgroup at gmail.com
>>>> <mailto:gpmgroup at gmail.com> ]
>>>> Sent: Thursday, April 19, 2018 7:32 PM
>>>> To: Corwin, Philip <pcorwin at verisign.com <mailto:pcorwin at verisign.com> >
>>>> Cc: icann at leap.com <mailto:icann at leap.com> ; Donna.Austin at team.neustar
>>>> <mailto:Donna.Austin at team.neustar> ; haforrestesq at gmail.com
>>>> <mailto:haforrestesq at gmail.com> ; gnso-igo-ingo-crp at icann.org
>>>> <mailto:gnso-igo-ingo-crp at icann.org> ; rafik.dammak at gmail.com
>>>> <mailto:rafik.dammak at gmail.com>
>>>>
>>>>
>>>> Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] GNSO Council Liaison Summary
>>>> Report (Re: IGO-INGO Curative Rights Policy Development Process Working
>>>> Group)
>>>>
>>>>
>>>>
>>>> Dear Philip,
>>>> OK lets settle this once and for all:
>>>> Show me examples of where an IGO is entitled to immunity after initiating
>>>> proceedings. In either the initial proceedings or any follow-on
>>>> proceedings?
>>>>
>>>>
>>>>
>>>> Any jurisdiction will do, any matter will do......
>>>>
>>>> If you can not then Swaine is irrelevant to what the working group is
>>>> considering.
>>>>
>>>>
>>>>
>>>> Yours sincerely,
>>>>
>>>> Paul.
>>>>
>>>>
>>>>
>>>>
>>>>
>>>> On Thu, Apr 19, 2018 at 1:18 PM, Corwin, Philip <pcorwin at verisign.com
>>>> <mailto:pcorwin at verisign.com> > wrote:
>>>>>
>>>>> Paul:
>>>>>
>>>>> For the record, and in regard to this
>>>>> The co-chairs will not refute this reasoning but are not prepared to
>>>>> discuss it - this I find very troubling, not just on this single issue
>>>>> level but the fact that working group officers can block its discussion
>>>>> for months and months on end.
>>>>>
>>>>> The discussion within the WG was not blocked by the co-chairs. It was
>>>>> blocked because George filed a section 3.7 Appeal at the point in time
>>>>> when the co-chairs wished to initiate the consensus call process. The
>>>>> co-chairs later offered to rescind holding an anonymous poll of the full
>>>>> WG but George rejected that approach and continued his appeal. So far as I
>>>>> am aware you supported George in these actions.
>>>>>
>>>>> Other than speaking with Susan in their individual capacity as WG members
>>>>> the co-chairs had no control over the content of her report.
>>>>>
>>>>> Speaking only for myself, I do not agree with your characterization of the
>>>>> Swaine memo and believe it was highly relevant to the central issue before
>>>>> the WG.
>>>>>
>>>>> Philip
>>>>>
>>>>> Philip S. Corwin
>>>>> Policy Counsel
>>>>> VeriSign, Inc.
>>>>> 12061 Bluemont Way[maps.google.com]
>>>>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq
>>>>> -3D12061-2BBluemont-2BWay-2B-250D-250AReston-2C-2BVA-2B20190-26entry-3Dgma
>>>>> il-26source-3Dg&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=D
>>>>> J69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=fHE_Cr9toYeLCsl-trxHT_K7CdrHZ
>>>>> 4uAVUnv57xOoj8&s=CoaOz-PewsfP8inMwD1N5msXqqp7rInZbzZOhQAWtCc&e=>
>>>>> Reston, VA 20190
>>>>> 703-948-4648/Direct
>>>>> 571-342-7489/Cell
>>>>>
>>>>> "Luck is the residue of design" -- Branch Rickey
>>>>>
>>>>> From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces at icann.org
>>>>> <mailto:gnso-igo-ingo-crp-bounces at icann.org> ] On Behalf Of Paul
>>>>> Tattersfield
>>>>> Sent: Thursday, April 19, 2018 5:01 AM
>>>>> To: George Kirikos <icann at leap.com <mailto:icann at leap.com> >
>>>>> Cc: Donna.Austin at team.neustar <mailto:Donna.Austin at team.neustar> ; Heather
>>>>> Forrest <haforrestesq at gmail.com <mailto:haforrestesq at gmail.com> >;
>>>>> gnso-igo-ingo-crp at icann.org <mailto:gnso-igo-ingo-crp at icann.org> ;
>>>>> rafik.dammak at gmail.com <mailto:rafik.dammak at gmail.com>
>>>>> Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] GNSO Council Liaison Summary
>>>>> Report (Re: IGO-INGO Curative Rights Policy Development Process Working
>>>>> Group)
>>>>>
>>>>>
>>>>>
>>>>> Dear ICANN,
>>>>>
>>>>>
>>>>> I agree with George, unfortunately I will not be able to attend the call
>>>>> later today as I have another meeting half way across the country which
>>>>> clashes with your call. I will listen to the call afterwards and submit
>>>>> any comments to the email list, sorry for any inconvenience. Please accept
>>>>> my apologies
>>>>>
>>>>> Briefly, I would also like to point out:
>>>>>
>>>>> The IGO's have accepted the principle of coexistence and as they are
>>>>> initiating the proceedings they have no immunity rights whatsoever in
>>>>> either the initial action or any follow on proceedings. This is an
>>>>> incredibly simple legal principle and I can not find ANY jurisdiction in
>>>>> the world on ANY matter not just domain names where an IGO would be
>>>>> entitled to do so.
>>>>>
>>>>> The matter is only confused because the Swaine reasoning looked at the
>>>>> case where others are initiating an action against the IGOs i.e. a
>>>>> trademark owner looking to seize an IGO's asset. Clearly the expert report
>>>>> is not relevant to the case the working group is considering where the
>>>>> IGO's are initiating proceedings.
>>>>>
>>>>> The co-chairs will not refute this reasoning but are not prepared to
>>>>> discuss it - this I find very troubling, not just on this single issue
>>>>> level but the fact that working group officers can block its discussion
>>>>> for months and months on end. I also note with some dismay that only 2
>>>>> people in the private office sessions said they were not prepared to
>>>>> accept any other option than option 3 - the 2 co-chairs preferred option.
>>>>>
>>>>> We have an opportunity in this working group to set an example to the RPM
>>>>> working group using any IGO cases to show how UDRP can be easily improved
>>>>> for all parties in a way that does not tilt the balance in either side's
>>>>> favour but just improves process and reduces costs for all parties and
>>>>> meets the GAC's advice.
>>>>>
>>>>>
>>>>>
>>>>> It really is incredibly easy - Free private mediation and a separate
>>>>> (voluntary for registrants) arbitration track. If you want more
>>>>> registrants to CHOOSE arbitration simply make it cheaper, faster and less
>>>>> risky (name only) than the judicial route. This could be sorted in a
>>>>> handful of meetings and no interest group has lost anything!
>>>>>
>>>>>
>>>>>
>>>>> Yours sincerely,
>>>>>
>>>>> Paul.
>>>>>
>>>>>
>>>>>
>>>>>
>>>>>
>>>>>
>>>>> On Thu, Apr 19, 2018 at 1:38 AM, George Kirikos <icann at leap.com
>>>>> <mailto:icann at leap.com> > wrote:
>>>>>> Hi folks,
>>>>>>
>>>>>> With regards to the Summary Report which is to be discussed tomorrow,
>>>>>> there are several parts of it that I disagree with, which I'll discuss
>>>>>> orally tomorrow during our call. However, some parts deserve a written
>>>>>> response, given that they contain supporting links (and the WebEx
>>>>>> interface really sucks, compared to Adobe Connect) so it's best to
>>>>>> post them in advance of the call.
>>>>>>
>>>>>> 1. On page 2, it's asserted that "the number of active participants is
>>>>>> extremely low" (it's also repeated on page 3, i.e. "small number of
>>>>>> participants' views"). However, that's not consistent with the facts.
>>>>>> For example, the IRTP-D PDP, the most recently completed GNSO PDP
>>>>>> according to:
>>>>>>
>>>>>> https://gnso.icann.org/en/group-activities/inactive[gnso.icann.org]
>>>>>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_g
>>>>>> roup-2Dactivities_inactive&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7
>>>>>> xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=fHE_Cr9toYeLCsl-
>>>>>> trxHT_K7CdrHZ4uAVUnv57xOoj8&s=2Pum4Md0vfHMKn5AUBAH3Z-j6dHKCuF_ZhREl6ZbzXU
>>>>>> &e=>
>>>>>>
>>>>>> has its attendance logs at:
>>>>>>
>>>>>> https://community.icann.org/display/ITPIPDWG/Attendance+Log[community.ica
>>>>>> nn.org]
>>>>>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org
>>>>>> _display_ITPIPDWG_Attendance-2BLog&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbP
>>>>>> SS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=fHE_Cr9t
>>>>>> oYeLCsl-trxHT_K7CdrHZ4uAVUnv57xOoj8&s=SM46RS2yu2NqlCCV6jC_TqeffNSm5NO7Hrg
>>>>>> 2Z_zxdzw&e=>
>>>>>>
>>>>>> If one adds up the "total attended" column, and divide it by the total
>>>>>> number of meetings, one obtains the average attendance per meeting:
>>>>>>
>>>>>> Sum of total attended column = 553
>>>>>> Total meetings = 56
>>>>>> Average = 9.88 per meeting
>>>>>>
>>>>>> It is of note that both the GNSO Council and the ICANN Board adopted
>>>>>> their recommendations:
>>>>>>
>>>>>> https://gnso.icann.org/en/group-activities/active/irtp-d[gnso.icann.org]
>>>>>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_g
>>>>>> roup-2Dactivities_active_irtp-2Dd&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPS
>>>>>> S6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=fHE_Cr9to
>>>>>> YeLCsl-trxHT_K7CdrHZ4uAVUnv57xOoj8&s=j2Zvmixa4aRhzYenT-dnA022yco2l1JnPBIL
>>>>>> d7c6P2A&e=>
>>>>>>
>>>>>> Now, let's compare this to the IGO PDP and its attendance records:
>>>>>>
>>>>>> https://community.icann.org/display/gnsoicrpmpdp/Attendance+Records[commu
>>>>>> nity.icann.org]
>>>>>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org
>>>>>> _display_gnsoicrpmpdp_Attendance-2BRecords&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3m
>>>>>> SVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=
>>>>>> fHE_Cr9toYeLCsl-trxHT_K7CdrHZ4uAVUnv57xOoj8&s=mwySLJqja9rtF5SFHTy4NbNmZuR
>>>>>> g0TzTEP7xPbL3BMk&e=>
>>>>>>
>>>>>> Sum of total attended column = 711
>>>>>> Total meetings = 71
>>>>>> Average = 10.01 per meeting
>>>>>>
>>>>>> So, there has actually been HIGHER average attendance (10.01 vs 9.88
>>>>>> per meeting) in this IGO PDP, compared to the IRTP-D whose work was
>>>>>> successfully completed.
>>>>>>
>>>>>> 2. On page 3, it's claimed that adoption of Option 4 "will require a
>>>>>> Charter amendment" for that other PDP." I'm not convinced that that's
>>>>>> a requirement. The RPM PDP charter is at:
>>>>>>
>>>>>> https://community.icann.org/display/RARPMRIAGPWG/WG+Charter?preview=3D/58
>>>>>> 72=
>>>>>> 9944/58730036/Charter%20for%20RPM%20PDP_final.pdf[community.icann.org]
>>>>>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org
>>>>>> _display_RARPMRIAGPWG_WG-2BCharter-3Fpreview-3D3D_5872-3D9944_58730036_Ch
>>>>>> arter-2520for-2520RPM-2520PDP-5Ffinal.pdf&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mS
>>>>>> VzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=f
>>>>>> HE_Cr9toYeLCsl-trxHT_K7CdrHZ4uAVUnv57xOoj8&s=ps70jf_1KqUAI3uRTbpQJ4U149wb
>>>>>> ZN0CHdG6lKySm40&e=>
>>>>>>
>>>>>> and states on page 3 of the charter that:
>>>>>>
>>>>>> "(b) Coordination with Other Parallel Efforts
>>>>>> In the course of its work, the Working Group should monitor the
>>>>>> progress of and, where appropriate, coordinate with, other ICANN
>>>>>> groups that are working on topics that may overlap with or
>>>>>> ***otherwise provide useful input to this PDP.***
>>>>>> ....
>>>>>> In addition, the RPM PDP Working Group should also take into
>>>>>> consideration the work/outcome of the TMCH Independent Review, the CCT
>>>>>> Review, and ***any other relevant GNSO policy development***"
>>>>>>
>>>>>> (emphasis added)
>>>>>>
>>>>>> So, I think this situation was already covered by the RPM PDP's
>>>>>> current charter, and doesn't need an amendment.
>>>>>>
>>>>>> As I mentioned earlier, there are other parts of the Summary Report I
>>>>>> have concerns about, but I'll save them for tomorrow's call, as they
>>>>>> don't require any links/quotes.
>>>>>>
>>>>>> Sincerely,
>>>>>>
>>>>>> George Kirikos
>>>>>> 416-588-0269
>>>>>> http://www.leap.com/[leap.com]
>>>>>> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.leap.com_&d=DwMF
>>>>>> aQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6
>>>>>> c2w3xl7xb5cjS_7sB4h6Y&m=fHE_Cr9toYeLCsl-trxHT_K7CdrHZ4uAVUnv57xOoj8&s=V1e
>>>>>> Nh6UuyYEnssdELGy5BGrOMHYiXX7md_UYRrQBKek&e=>
>>>>>>
>>>>>>
>>>>>>
>>>>>> On Fri, Apr 13, 2018 at 11:36 AM, Mary Wong <mary.wong at icann.org
>>>>>> <mailto:mary.wong at icann.org> > wrote:
>>>>>>> > Dear all,
>>>>>>> >
>>>>>>> >
>>>>>>> >
>>>>>>> > On behalf of Susan Kawaguchi, GNSO Council liaison to this PDP Working
>>>>>>> > Group, please find attached the summary report that Susan mentions in
>>>>>>> her 10
>>>>>>> > April email (below). You should already have received the calendar
>>>>>>> > invitation and call details for the next Working Group call, currently
>>>>>>> > scheduled for next Thursday 19 April at our usual time of 1600 UTC.
>>>>>>> Susan
>>>>>>> > will be on the call to discuss the report and proposed next steps with
>>>>>>> > everyone.
>>>>>>> >
>>>>>>> >
>>>>>>> >
>>>>>>> > Thanks and cheers
>>>>>>> >
>>>>>>> > Mary & Steve
>>>>>>> >
>>>>>>> >
>>>>>>> >
>>>>>>> > From: Susan Kawaguchi <susankpolicy at gmail.com
>>>>>>> <mailto:susankpolicy at gmail.com> >
>>>>>>> > Date: Tuesday, April 10, 2018 at 12:26
>>>>>>> > To: "gnso-igo-ingo-crp at icann.org <mailto:gnso-igo-ingo-crp at icann.org>
>>>>>>> " <gnso-igo-ingo-crp at icann.org <mailto:gnso-igo-ingo-crp at icann.org> >
>>>>>>> > Cc: Heather Forrest <haforrestesq at gmail.com
>>>>>>> <mailto:haforrestesq at gmail.com> >, Mary Wong
>>>>>>> > <mary.wong at icann.org <mailto:mary.wong at icann.org> >, Steve Chan
>>>>>>> <steve.chan at icann.org <mailto:steve.chan at icann.org> >
>>>>>>> > Subject: [Ext] IGO-INGO Curative Rights Policy Development Process
>>>>>>> Working
>>>>>>> > Group
>>>>>>> >
>>>>>>> >
>>>>>>> >
>>>>>>> > Dear IGO-INGO Curative Rights Policy Development Process Working Group
>>>>>>> > members,
>>>>>>> >
>>>>>>> >
>>>>>>> >
>>>>>>> > I write to update you, in my role as GNSO Council Liaison to this
>>>>>>> Working
>>>>>>> > Group, on the status of the WG member consultation process that was
>>>>>>> set out
>>>>>>> > in my email of 9 March 2018 and then actioned during ICANN61 and
>>>>>>> following.
>>>>>>> >
>>>>>>> >
>>>>>>> >
>>>>>>> > As envisaged in my email of 9 March, staff and I are preparing a
>>>>>>> report for
>>>>>>> > the Working Group on the input received at and since ICANN61, with
>>>>>>> > recommendations on next steps from me and Heather Forrest, the GNSO
>>>>>>> Chair.
>>>>>>> > We anticipate posting the report to the WG list at the end of this
>>>>>>> week, for
>>>>>>> > discussion at a WG meeting to be held at the group's usual time next
>>>>>>> > Thursday, 19 April. At that meeting, I will be happy to present a
>>>>>>> summary of
>>>>>>> > the report and its recommendations, and answer questions from WG
>>>>>>> members.
>>>>>>> >
>>>>>>> >
>>>>>>> >
>>>>>>> > An email from staff with call details will be circulated shortly. Bear
>>>>>>> in
>>>>>>> > mind that we do not have Adobe Connect, so alternate arrangements will
>>>>>>> be
>>>>>>> > made to support our call.
>>>>>>> >
>>>>>>> >
>>>>>>> >
>>>>>>> > In the meantime, I sincerely thank you for taking the time to provide
>>>>>>> me
>>>>>>> > with your feedback, which contributes to the substantial work of the
>>>>>>> group
>>>>>>> > on this challenging policy area.
>>>>>>> >
>>>>>>> >
>>>>>>> >
>>>>>>> > Kind regards,
>>>>>>> >
>>>>>>> >
>>>>>>> >
>>>>>>> > Susan Kawaguchi
>>>>>>> >
>>>>>>> > Councilor for the Business Constituency
>>>>>>> >
>>>>>>> >
>>>>>>> >
>>>>>>> >
>>>>>>
>>>>>>> > _______________________________________________
>>>>>>> > Gnso-igo-ingo-crp mailing list
>>>>>>> > Gnso-igo-ingo-crp at icann.org <mailto:Gnso-igo-ingo-crp at icann.org>
>>>>>>> > https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
>>>>>>> <https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp>
>>>>>> _______________________________________________
>>>>>> Gnso-igo-ingo-crp mailing list
>>>>>> Gnso-igo-ingo-crp at icann.org <mailto:Gnso-igo-ingo-crp at icann.org>
>>>>>> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
>>>>>> <https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp>
>>>>>
>>>>
>>>
>>
>> _______________________________________________ Gnso-igo-ingo-crp mailing
>> list Gnso-igo-ingo-crp at icann.org
>> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
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