[Gnso-igo-ingo-crp] Agenda and documents for WG call on Thursday 14 July 2016

[George Kirikos]

Hi folks,

I'll have additional comments later on the IGO letter, but I wanted to
point out the Supreme Court of Canada decision (World Bank Group v.
Wallace, 2016, SCC 15)  they argue to be "helpful" to their position
can be read in its entirety at:

http://www.canlii.org/en/ca/scc/doc/2016/2016scc15/2016scc15.html

and, as is often the situation, is more nuanced than that suggested by the IGOs.

Th underlying matter was a criminal case against SNC-Lavalin (a
contractor) staff re: Corruption of Foreign Public Officials Act. The
RCMP (i.e. federal law enforcement) sought access to archived
documents held by the World Bank to help in their criminal case.

The court found that in this particular case, the World Bank (not a
party to the criminal case) could use its immunity as a shield to
protect those documents from production, as they had not waived their
immunity.

This is obviously highly distinguishable from domain name disputes,
especially disputes where an IGO is the initiator of the dispute. The
IGOs confuse a "shield" (meant to protect their assets) form a "sword"
(a tool to compel others to the IGO's choice of forum to handle
disputes initiated by the IGO).

Furthermore, the court noted that immunities are on a *spectrum*, and
will vary depending on treaty. (para 59-64). This is highly fact
specific, and highly dependent on national laws.

Also, the court confirmed that immunity *could* be waived by the World
Bank although in this particular case, it wasn't (paras 95, 148).

I wanted to make sure that this PDP had the full picture as to this
referenced court case.

Also, "IGOs regularly provide for arbitration in commercial contracts"
-- these are voluntary commercial contracts where parties to a
contract with the IGO agree to arbitration. Again, this is quite a
different scenario from IGOs compelling an unrelated entity (one with
which they have no contractual relations) to a mandatory and binding
arbitration, to waive their rights to use national courts, in a
dispute *initiated* by the IGO.

One further brief comment. The IGOs seem to believe, incorrectly in my
view, that various statements in Professor Swaine's report are
"dispositive" of our work. Hardly! A stronger case can be made that
the work to date, and Professor Swaine's contributions, support the
status quo. To do otherwise would be making new law, rather than
examining the current state of the law.

We are asked by the IGOs to hold that their "waiver" of immunity is
somehow more important than a domain name registrant's "waiver" of a
right to court proceedings. Our job should be to look at this
carefully, as we've done. The State Department letter gives us our
answer already, which the IGOs conveniently ignore. That letter was
"dispositive" of our work.

Sincerely,

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



On Tue, Jul 12, 2016 at 6:28 PM, Mary Wong <mary.wong at icann.org> wrote:
> Dear Working Group members,
>
>
>
> The proposed draft agenda for our next meeting, scheduled for Thursday 14
> July at 1600 UTC, is as follows; please note that it is subject to change
> pending further discussions between the co-chairs and staff:
>
>
>
> 1.       Roll call/updates to Statements of Interest
>
> 2.       Brief review of ICANN56 discussion on external legal expert opinion
>
> 3.       Input on memo from Professor Swaine by IGO representatives (see
> attached document)
>
> 4.       Begin discussion of possible policy options – (i) modify UDRP/URS
> (based on alternatives identified to date, or other suggestions); (ii)
> recommend no changes to either process; or (iii) develop new, separate
> procedure (per the Working Group Charter)
>
> 5.       Next steps – timeline to Initial Report, and date of next meeting
>
>
>
> Thanks and cheers
>
> Mary
>
>
>
>
>
> Mary Wong
>
> Senior Policy Director
>
> Internet Corporation for Assigned Names and Numbers (ICANN)
>
> Email: mary.wong at icann.org
>
> Telephone: +1-603-5744889
>
>
>
>
>
>
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