[Discussion-igo-rc] Problem Statement, and additional thoughts/notes

Wed Mar 1 10:02:14 UTC 2017

Dear Phil,

Thank you for your message and for working to find a middle-ground solution.

It seems like our disagreement is about one of scope. I suggest we state this more simply. “Appropriate” makes it sound as though the small group’s job is to determine which immunities are appropriate for IGOs. Our member states have already made this determination for us; our role is to ensure that ICANN processes accommodate international and national law on this issue.

I would therefore suggest “should take into account IGOs’ unique status, in particular the scope of their immunity from the jurisdiction of national courts”.

I also cannot emphasise enough that the “absolute immunity” question is not relevant to the present discussion, as the activities we are discussing are narrow. Expanding the discussion to “absolute immunity” is counter-productive.

All best,

Jon

From: Phil Corwin [mailto:psc at vlaw-dc.com]
Sent: mardi 28 février 2017 20:46
To: PASSARO Jonathan, SGE/LEG; jbladel at godaddy.com; discussion-igo-rc at icann.org
Subject: RE: [Discussion-igo-rc] Problem Statement, and additional thoughts/notes

Jon:

Thank you for your thoughtful response.

While I am not trying to be difficult or unduly split hairs, I cannot agree that the present formulation of the relevant sentence in the problem statement -- “protections . . . should take into account IGOs’ unique status, in particular their immunity from the jurisdiction of national courts” – does not take a position on the scope of IGO immunities.

Turning to the dictionary definition of the unmodified word “Immunity”, we find:

·         Law-  Officially granted exemption from legal proceedings or liability https://en.oxforddictionaries.com/definition/immunity

·         exemption from a duty or liability that is granted by law to a person or class of persons ; also :  the affirmative defense of having such an exemption https://www.merriam-webster.com/dictionary/immunity#legalDictionary

·         law Immunity is also the condition of being protected from the law http://dictionary.cambridge.org/us/dictionary/english/immunity (emphasis added)

Given those definitions, the natural way to read the phrase “immunity [exemption/protection] from the jurisdiction of national courts” is that IGOs are exempt/protected from such jurisdiction; that is, they have absolute immunity. I cannot regard that as a neutral formulation, given that the degree of immunity they actually  enjoy  in the context of domain-related disputes under contemporary international law is the central issue of, and necessary foundation for, any informed discussion of the proper means of enhancing their ability to access alternatives to litigation in such disputes.

We clearly have different views on the proper interpretation of Prof. Swaine’s memo, and I therefore withdraw my previous suggestion of inserting  “varied and limited immunity” as a modifier before the word “immunity” in that sentence.

In its place I would propose inserting the word “appropriate”. This would result in that portion of the sentence reading:
                “protections . . . should take into account IGOs’ unique status, in particular their appropriate immunity from the jurisdiction of national courts”

That slight modification would render the sentence truly neutral in formulation, and would allow those who believe that absolute immunity is the proper formulation to maintain that position while leaving others free to suggest that, while IGOs certainly possess some degree of immunity, it may not be absolute for purposes of the discussion at hand.

I hope that suggestion is acceptable and we can put this matter to rest.

Regards, 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: Jonathan.PASSARO at oecd.org<mailto:Jonathan.PASSARO at oecd.org> [mailto:Jonathan.PASSARO at oecd.org]
Sent: Monday, February 27, 2017 4:55 AM
To: Phil Corwin; jbladel at godaddy.com<mailto:jbladel at godaddy.com>; discussion-igo-rc at icann.org<mailto:discussion-igo-rc at icann.org>
Subject: RE: [Discussion-igo-rc] Problem Statement, and additional thoughts/notes

Dear Phil,

Many thanks for your reply.

My apologies if I gave the impression that I felt this was an inappropriate forum for your comments about the problem statement, which I read with interest. I had understood from the end of your email that you wanted to discuss the issue of IGO immunity on today’s call, and I had simply wanted to confirm that the topic of that call would be the Red Cross. My goal was to ensure that I had not missed an update on the calendar, and I am grateful for Bruce Tonkin’s confirmation, which we all received this morning, that tonight’s call does in fact relate only to the Red Cross.

It is clear we have different views on how Prof. Swaine’s statements should be interpreted, and I look forward to discussing this with you in person. Given our divergence in views on this point, it would seem premature to make assertions in the “problem statement” regarding the scope of IGO immunities.

The wording in the problem statement you propose amending states that “protections . . . should take into account IGOs’ unique status, in particular their immunity from the jurisdiction of national courts.” This formulation has the merit of not taking a position on the scope of IGO immunities.

However, your proposed formulation, “varied and limited immunity”, stakes a clear position on the issue. I propose that we maintain the neutral wording, which refers to IGO immunities without commenting on their scope.

Kind regards,

Jon

From: Phil Corwin [mailto:psc at vlaw-dc.com]
Sent: dimanche 26 février 2017 17:59
To: PASSARO Jonathan, SGE/LEG; jbladel at godaddy.com<mailto:jbladel at godaddy.com>; discussion-igo-rc at icann.org<mailto:discussion-igo-rc at icann.org>
Subject: RE: [Discussion-igo-rc] Problem Statement, and additional thoughts/notes

Jon and Others:

Thank you for your feedback.

Before replying to the substance of your remarks, let me address a procedural matter.

While I am not clear on the precise focus of Monday’s call, and it may well be “Red Cross identifiers, not IGO identifiers”, I know of no other forum except this email list available for discussion of all the Problem Statements that will be utilized by the discussion group, and for resolving disagreements regarding current draft language. So I do not see anything inappropriate in raising concerns on this list in regard to draft language characterizing the scope of IGO immunity. (Similarly, the matter that the GNSO Council Chair raised is not solely related to Red Cross identifiers).

Turning to substance, the quote from Professor Swaine’s legal memo that you utilized appears at p.84 of the Initial Report in his discussion of functional immunity, which is but one of the differing analytical approaches that a national court may employ in evaluating an IGO’s assertion of immunity from its jurisdiction. Taking that quote in its strongest sense, “even likely to prevail” falls substantially short of declaring that an IGO will always prevail in its immunity claim.

Other observations in his discussion further limit the applicability and predictability of the functional test. For example, “Despite its appeal elsewhere, including under international law, functional immunity has not been directly applied at the test in the United States… U.S. courts do not generally devote much attention to assessing whether immunity is necessary to fulfill the organization’s purposes.” (p.83) Our WG of course looked far beyond U.S. law and judicial practice in forming our recommendations, but there is no certainty of result in those jurisdictions employing this analytical approach – “Those jurisdictions employing a functional test have demonstrated its flexibility and unpredictability”. (Emphasis added)

There are multiple other passages in Professor Swaine’s legal memo that lay a very firm foundation for the WG’s conclusion that there is no clearly established right to absolute immunity in a domain-related case involving an IGO complainant that can in any way justify a blanket preemptive declaration by ICANN that such a right should be enshrined in ICANN policy and thereby justify a denial to domain registrants of access to a national court in which the IGO’s immunity claim can be adjudicated under the law of an applicable jurisdiction prior to any consideration of the underlying domain dispute.

For example:

·         “The first is whether, in principle, an IGO would enjoy immunity from judicial process with respect to name-related rights it might assert in the UDRP proceedings. The answer depends on whether jurisdiction in which the case arises would apply an absolute, functional, or restrictive immunity approach to the IGO in question. That may be hard to predict.” (pp.66-67; emphasis added)

·         “A recent expert survey concluded that “it cannot be said that ‘there is ‘a general practice accepted as law’ establishing a customary rule of immunity” and that “it would be difficult to conclude that any such rule exists.” Not insignificantly, even those cases recognizing a customary international law basis for immunity appear to differ on its extent. Regardless, as a practical matter, a dispute about IGO immunity may arise in a court inclined to resolve it based on customary international law as that court perceives it”. (p. 76; emphasis added))

·         “Allowing an IGO that prevailed in the UDRP process to avoid its waiver and rest on the UDRP result by invoking immunity, while allowing it to waive that immunity by initiating judicial proceedings in the event it has lost to a domain-name registrant, will likely be perceived as asymmetrical and problematic. In addition, leaving resolution to the truncated UDRP process may be resisted. There is broad acceptance of a principle, expressed in some treaties and governing instruments, according to which IGOs should waive immunity in the absence of any sufficient alternative”. (p.87-88; emphasis added)

·         “Accordingly, as a purely legal matter, it seems unlikely that the Mutual Jurisdiction concession establishes or occasions a violation of IGO immunity. And as explored further below, it may seem more appropriate to force an IGO to abide by a judicial process, given that it has elected to initiate UDRP proceedings, than to force a domain-name registrant to accept any alternative”. (p.89; emphasis added)

Two final observations:

1.       The WG’s respect for IGO claims of immunity was sufficient that we have specifically recommended that an IGO be permitted to initiate a UDRP or URS through an agent, assignee, or licensee so that the IGO does not have to directly waive its immunity claim to initiate a dispute resolution procedure.

2.       The WG has acted on a presumption that the actual exercise of a judicial right of appeal will be extremely rare, just as it is in current UDRP practice (where complainants prevail in the great majority of cases, and losing registrants seek de novo court review on an extremely limited basis). If such an appeal is filed the IGO may assert its immunity claim and its validity will be adjudged by the court, which is the proper forum for doing so rather some blanket preemptive ICANN policy. Further, a losing registrant is unlikely to bear the very substantial time and cost burden of judicial review only in those instances in which it believes the initial UDRP decision to be in clear error and the domain is of such market value as to justify the effort; those are precisely the circumstances in which access to court review is most likely to be required to assure due process.

I hope that you and other members of this discussion list find the above elaboration to be useful.

I hereby reassert my request that the current language of the Problem Statement relating to IGOs that was cited in my original email be amended to make clear that the scope of IGO immunity with respect to the protection of their names and identifies can vary on the basis of multiple factors. The issue of how ICANN can best protect those names and identifiers in the DNS must rest upon a properly informed and accurate reading of current law, as well as  upon the principles that ICANN has no authority to presume and confer blanket legal immunities that go beyond the consensus scope of current law, and likewise has no authority to deny the citizens of sovereign states the rights conferred to them by applicable statutes as well as the right to seek judicial redress when they believe those rights have been violated by a DRP decision.

Regards to all,
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: Jonathan.PASSARO at oecd.org<mailto:Jonathan.PASSARO at oecd.org> [mailto:Jonathan.PASSARO at oecd.org]
Sent: Sunday, February 26, 2017 8:33 AM
To: Phil Corwin; jbladel at godaddy.com<mailto:jbladel at godaddy.com>; discussion-igo-rc at icann.org<mailto:discussion-igo-rc at icann.org>
Subject: RE: [Discussion-igo-rc] Problem Statement, and additional thoughts/notes

Dear Phil, Dear All,

The issue relevant to the discussion at hand is not the scope of IGO immunities for every activity in which IGOs might possibly engage. What is germane to the current discussion is the issue of IGO immunities with respect to the protection of IGO names and identifiers. This is a narrow issue on which Prof. Swaine concluded that a claim for immunities was “colorable or even likely to prevail” even where a court applies a stringent test.

Introducing a debate about whether or not IGOs enjoy “absolute immunity” expands the discussions far beyond what is necessary to address the question of how best to protect IGO identifiers in the DNS and what accommodations we should enjoy in dispute resolution mechanisms.

As a procedural matter, my understanding was that Monday’s call was about Red Cross identifiers, not IGO identifiers.

Kind regards,

Jon
[logo_mail_uk]<http://www.oecd.org/>

Jonathan Passaro
Legal Adviser
Directorate for Legal Affairs

2, rue André Pascal - 75775 Paris Cedex 16
Tel: +33 1 45 24 14 73
jonathan.passaro at oecd.org<mailto:jonathan.passaro at oecd.org>  || www.oecd.org/legal<http://www.oecd.org/legal>

From: discussion-igo-rc-bounces at icann.org<mailto:discussion-igo-rc-bounces at icann.org> [mailto:discussion-igo-rc-bounces at icann.org] On Behalf Of Phil Corwin
Sent: samedi 25 février 2017 20:49
To: James M. Bladel; discussion-igo-rc at icann.org<mailto:discussion-igo-rc at icann.org>
Subject: Re: [Discussion-igo-rc] Problem Statement, and additional thoughts/notes

James:

Thanks for raising that concern about the Problem Statement. I have one to add, and it is central to any properly informed discussion of CRP for IGOs.

In regard to the Edited Problem Statement from Jorge Cancio<https://community.icann.org/download/attachments/64062340/IGO%20Problem%20Statement%20-%20Jorge%20Cancio%20edits%20over%20USG%20RC%20version.docx?version=1&modificationDate=1486688293000&api=v2> (received 8 February 2017, edits to IGO/USG version), the current draft reads:
Where practicable, any protection mechanisms to be developed should take advantage of similar mechanisms that have been created for protecting other legal rights should protect IGOs against the reputational risks associated with fraud in the DNS and should minimize risks to members of the public who are often targeted by individuals posing as IGOs or IGO officials. These protections, which should also take into account IGOs’ unique status, in particular their immunity from the jurisdiction of national courts, should also be worked out in tandem with the ongoing policy work being done by the GNSO’s Policy Development Process (PDP) Working Group on IGO-INGO Curative Rights.

In regard to the portion of that statement I have highlighted, I have posted two comments as follows, but the text of the Statement remains unchanged to date:

1.       As I commented on the original version of this document, the assertion that IGOs have "immunity from the jurisdiction of national courts" is factually incorrect. The correct legal analysis is far more nuanced.

2.       To further amplify, the legal analysis provided by Prof. Edward Swaine that is included in the initial report of the CRP WG makes clear that the answer to whether an IGO enjoys immunity in a particular legal action is "it depends". Those dependencies include the underlying legal foundation of the IGO, the facts and circumstances of the dispute, and the analytical approach employed by the court in which the legal action is brought.

ICANN has no authority to establish blanket global immunity for all IGOs in all potential circumstances. Rather, the decision on whether an asserted defense of immunity is valid is for the court to decide. Further, ICANN has no authority to deny domain registrants their access to relevant statutory legal rights in the context of alternative DRPs. That is just as objectionable as, for example, seeking to deny registrants their relevant national privacy rights in the context of RAA enforcement.

The current language of the draft can be read as implying that IGOs enjoy blanket immunity from national court jurisdiction, when in fact the judicial immunity enjoyed is of more limited scope and varies between nations. The WG that I co-chaired understood that the request of IGOs for separate DRPs allowing no appeal to a national court was based on a presumption of absolute immunity and, as this was the central issue underlying our recommendations, we took the time to seek and employ an expert on international law to inform the WG of the recognized contemporary scope of IGO immunity.

I therefore propose that the highlighted phrase be amended to read “in particular their varied and limited immunity from the jurisdiction of national courts” so that our discussion can proceed on the basis of a correct understanding of applicable law.

As for the concluding phrase of that last sentence, that IGO protections “should also be worked out in tandem with the ongoing policy work being done by the GNSO’s Policy Development Process (PDP) Working Group on IGO-INGO Curative Rights” I think we all need to share a common understanding of what “in tandem” means, and the procedural  relationship of this discussion group to the PDP WG that I co-chair. Unlike the subject of permanent protections for IGOs in new gTLDs – which are the subject of long-standing and conflicting GNSO recommendations and GAC advice – the subject of IGO CRP is being addressed by an active GNSO PDP, with an Initial Report and recommendations currently out for comment until March 1 (noting that early next week we shall announce an extension of that comment period to accommodate the GAC’s request for such additional time).  While this discussion group can be a very useful forum for discussing the overall subject and narrowing different perspectives, my understanding is that the GNSO position is that it cannot be a separate forum for any negotiations aimed at a final resolution of the CRP matter.

Therefore, GAC members and IGOs interested in influencing the WG’s Final Report should take the opportunity to file comments for the consideration of WG members, and should not rely solely upon discussion group dialogue as a means of input to our ongoing work. Later this year, when we deliver a final report and recommendations for Council consideration, its decision on which of those it wishes to accept or reject cab be based  upon all factors that Council members deem relevant. Assuming that the Council forwards IGO CRP policy recommendations to the ICANN Board, the GAC will then have its rightful opportunity to submit any advice it deems relevant to the Board as well.

I hope the points I have raised are useful in framing our initial discussion this coming Monday.

Best regards,
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: discussion-igo-rc-bounces at icann.org<mailto:discussion-igo-rc-bounces at icann.org> [mailto:discussion-igo-rc-bounces at icann.org] On Behalf Of James M. Bladel
Sent: Saturday, February 25, 2017 12:19 AM
To: discussion-igo-rc at icann.org<mailto:discussion-igo-rc at icann.org>
Subject: [Discussion-igo-rc] Problem Statement, and additional thoughts/notes

Thomas, and All -

First, thank you for your contributions to prepare for our facilitated discussion in Copenhagen. On behalf of the GNSO, I apologize for the silence on our side to date, but I can assure you that we have been extensively discussing this matter, both at the Council level and among our smaller group.

We have concerns regarding the Problem Statement, in that we’re not convinced it is currently fit-for-purpose and we hope that we can flesh this out some on our call next week. We’re also very keen to see the briefing material that is being prepared by Bruce to assist our discussions. It may be that this duplicates much of the language in the Problem Statement as it is currently drafted. Attached for your information and consideration is an amended version of the Problem Statement document, along with our comments and edits. Additionally, we’ve attached a short list of questions and suggestions that we think should be clarified on our first call.

We also welcome the opportunity to discuss your comments below regarding the ‘global public interest’. While we don’t necessarily disagree with the sentiment, we do believe it is important that the term ‘global public interest’ as it is described in the ICANN bylaws is not misconstrued. To that end we refer to the relevant bylaws here:

The Bylaws refer to the “global public interest” as a Core Value, requiring ICANN to:

Seeking and supporting broad, informed participation reflecting the functional, geographic, and cultural diversity of the Internet at all levels of policy development and decision-making to ensure that the bottom-up, multistakeholder policy development process is used to ascertain the global public interest and that those processes are accountable and transparent

Additionally, ICANN’s Articles of Incorporation state:

the Corporation shall, except as limited by Article IV hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet by carrying out the mission set forth in the bylaws of the Corporation (“Bylaws”). Such global public interest may be determined from time to time.  Any determination of such global public interest shall be made by the multistakeholder community through an inclusive bottom-up multistakeholder community process.

The Bylaws do require ICANN to duly consider the “public policy” input of governments, but determinations regarding the global public interest are firmly rooted in the multistakeholder process, of which both the GNSO and the GAC are part.

Thank you, and we are looking forward to our call next week.

J.

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