[Gnso-igo-ingo-crp] Response from international law expert

[Kathy Kleiman]

Or perhaps from academic experts who often enjoy sharing their time and 
pontificating -- especially when their expertise can help shape better 
policy.
Best,
Kathy

On 3/11/2015 12:41 PM, Paul Keating wrote:
> Having read the report I wholeheartedly agree with George.
>
> The respondent had not practiced for over a decade and his comments were based upon a very limited number of inapplicable scenarios and with no reference to legal authority or judicial opinion. He had no background knowledge of the UDRP.
>
> I have been absent from a the past several meetings but wonder why this person was asked instead of the many other more qualified attorneys. It certainly can't be for lack of available funds.   If we are to seek legal advice we should seek it from more traditional sources and be prepared to pay for the service. If funds are needed we should seek them from ICANN.
>
> Sincerely,
> Paul Keating, Esq.
>
>> On 11 Mar 2015, at 16:35, George Kirikos <icann at leap.com> wrote:
>>
>> With respect, I believe his statement in relation to Section 29 is
>> somewhat misleading. The language of Section 29 explicitly states that
>> it applies to disputes arising out of CONTRACTS TO WHICH THE UNITED
>> NATIONS IS A PARTY. The United Nations is not a party to the domain
>> name registration agreement for domain names that they deem to be
>> infringing their rights (the only parties are the registrar and the
>> registrant).
>>
>> I think the answer to question #1 is also incomplete, since it seems
>> to be predicated on that existing contractual relationship, where an
>> arbitration agreement already exists. It does not consider the broader
>> classes of disputes, e.g. where someone in Toronto launches a cafe
>> named "UNESCO" -- the UN agency named UNESCO (obviously??) can't
>> compel that cafe owner to participate in an arbitration. A specific
>> answer to that scenario should be provided, and more broadly, how they
>> enforce their alleged rights in the offline world in cooperation with
>> law enforcement, etc.
>>
>> Also, it seems he's unaware that the standard domain name registration
>> agreement that IGOs (including the UN, for un.org) have entered into
>> specify jurisdictions for 3rd party disputes, including acceptance of
>> the UDRP! (i.e. a 3rd party owning a TM for "UN" could file a
>> (frivolous) UDRP against the United Nations, and the United Nations
>> would be compelled to defend it).
>>
>> Other than broad references and a few anecdotes, the 'answers' lack
>> real rigour (e.g. no references to case law, precedents, etc.).
>> Furthermore, they lack independence -- it's clear he's an advocate for
>> the UN's positions, not an independent 3rd party with relevant
>> experience and research in the area we are discussing.
>>
>> Personally, the 'answers' appear helpful only to the extent that they
>> demonstrate that greater education/awareness is required. They
>> certainly don't meet any  threshold for justifying changes to the
>> status quo.
>>
>> Sincerely,
>>
>> George Kirikos
>> 416-588-0269
>> http://www.leap.com/
>>
>>
>>
>>
>>
>>> On Mon, Mar 9, 2015 at 7:19 PM, Mary Wong <mary.wong at icann.org> wrote:
>>> Dear WG members,
>>>
>>> We have received a response from Mr. Hans Corell, the international law
>>> expert to whom we had sent the list of questions on sovereign immunity,
>>> prepared in consultation with our WG co-chairs Petter and Phil. Mr. Corell
>>> is a former Swedish diplomat and was from 1994-2004 the
>>> Under-Secretary-General for Legal Affairs and Legal Counsel for the United
>>> Nations. He is presently an adviser to a number of international bodies,
>>> including ICANN and the International Bar Association, where he is the
>>> current Co-Chair of the Council of the Human Rights Institute. I attach a
>>> copy of his full CV to this email, but you can also see his professional
>>> biography and current appointments here:
>>> http://www.havc.se/PresentEngagements.htm and
>>> http://www.havc.se/res/SelectedMaterial/20140721shortbio.pdf.
>>>
>>> In order to try to gain an initial understanding of the scope of the
>>> international legal principle of sovereign immunity as it applies to IGOs,
>>> we provided Mr. Corell with some basic background information into our work
>>> and the reason for asking the specific questions we enclosed. We did not,
>>> however, go into detail about the progress and workings of the WG, including
>>> our interaction with the IGOs – so you will see from his response that some
>>> of his comments are based on general rather than more specific information.
>>> You will see also that he has certain questions for the WG, which may be
>>> helpful avenues for follow up.
>>>
>>> As such, staff thought that the WG may wish to discuss both Mr. Corell’s
>>> answers to the questions that were posed to him as well as possible
>>> follow-up action on the WG call this Wednesday. For instance, we could
>>> develop a subsequent set of questions  that we can provide along with a note
>>> summarizing the IGOs’ position on the matter, so that he can provide us with
>>> more detailed input.
>>>
>>> Please note that Petter and Phil have not yet had a chance to review Mr.
>>> Corell’s response. Do note also that representatives of the UN legal counsel
>>> were participants in the original IGO-INGO PDP WG that preceded our work,
>>> and I believe may also be represented in the IGO “small group” that sent us
>>> their January 205 response. As such, a further point for WG discussion may
>>> be how we follow up with the IGO “small group” after having reviewed their
>>> and Mr. Corell’s response.
>>>
>>> For completeness I attach also a copy of the initial note and questions that
>>> were sent to Mr. Corell.
>>>
>>> Thanks and cheers
>>> Mary
>>>
>>> Mary Wong
>>> Senior Policy Director
>>> Internet Corporation for Assigned Names & Numbers (ICANN)
>>> Telephone: +1 603 574 4892
>>> Email: mary.wong at icann.org
>>>
>>>
>>>
>>>
>>>
>>>
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