[Gnso-igo-ingo-crp] Waiver of Immunity -- express AND implied waivers

[George Kirikos]

Interestingly, the World Bank maintains a webpage at:

http://ppp.worldbank.org/public-private-partnership/ppp-overview/practical-tools/checklists-and-risk-matrices/checklist-sovereign-immunity

where it explicitly discusses waiver of immunity, with some
*suggested* language:

"(1)         To the extent that the [awarding authority] may be
entitled in any state or jurisdiction to claim or benefit from any
immunity (whether characterized as state immunity, sovereign immunity,
act of state or otherwise) now or hereafter for itself or any of its
property or assets (which it now has or may hereafter acquire) in
respect of its obligations under this Agreement from service of
process or other documents relating to proceedings, jurisdiction,
suit, judgment, execution, attachment (whether before awarded or
judgment, in aid or execution or otherwise) or legal process or to the
extent that in any such jurisdiction there may be attributed to it or
any of its property or assets such immunity (whether or not claimed),
the [awarding authority] expressly, unconditionally and irrevocably
agrees not to claim, invoke or permit to be invoked on it or its
property or assets’ behalf or for it or its property or assets’
benefit and hereby expressly, unconditionally and irrevocably waives
such immunity to the fullest extent permitted by the laws of such
jurisdiction.

(2)         Subject to any applicable appellate rights, the [awarding
authority] consents generally in respect of any proceedings to the
giving of any relief or the issue of any process in connection with
the proceedings including, without limitation, the making enforcement
or execution against any property or assets whatsoever (irrespective
of its use or intended use) of any order or judgment which may be made
or given in the proceedings; and

(3)         The [awarding authority] irrevocably and unconditionally
acknowledges that the execution, delivery and performance of this
Agreement constitute private and commercial (and not public) acts of
the [awarding authority]."

That's the kind of language that can be incorporated into a future
UDRP document (once that other PDP begins, where the UDRP undergoes
reforms). Thanks World Bank! :-)

The above is obvious an *explicit* waiver of immunity (like the UDRP has).

However, there's also a concept (that this PDP hasn't discussed in
depth before, I believe, but only in passing), of *implicit* waiver of
immunity.

There was a recent Canadian ruling in Ontario's courts that the World
Bank had waived its immunity *implicitly* through its actions,
requiring it to produce files in a criminal trial:

https://bccla.org/our_work/world-bank-group-v-kevin-wallace-et-al/

"Justice Nordheimer of the Ontario Superior Court of Justice found
that the World Bank had implicitly waived its immunity through this
conduct."

That matter has been appealed to the Supreme Court of Canada (no decision yet):

http://www.scc-csc.ca/case-dossier/info/dock-regi-eng.aspx?cas=36315

The factum of the BCCLA in the Supreme Court appeal by the World Bank
can be seen at:

https://bccla.org/wp-content/uploads/2015/11/20151105-Factum-World-Bank-Group-v.-Kevin-Wallace.pdf

where it argues that the OECD Convention and ICCPR both support the
recognition of "implied waiver".

Of course, Argentina just settled a dispute with its international bond holders,

http://www.bbc.com/news/business-35690833

where the NYC courts were explicitly given jurisdiction when Argentina
raised money long ago.

Domain name disputes, of course, are somewhat different in that IGOs
have no contracts with domain name registrants (contracts are between
registrars and registrants), but seek to intervene and disrupt those
contracts as non-parties. I believe when IGOs actively intervene in
this manner, they *implicitly* waive any immunity, regardless of
whether the UDRP contains the explicit waiver of immunity via the
language that currently exists.

Sincerely,

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