[Gnso-igo-ingo-crp] [Ext] Re: Question about Professor Swaine's memo
icann at leap.com
Wed Jun 13 23:13:27 UTC 2018
On Wed, Jun 13, 2018 at 2:26 PM, Paul Keating <Paul at law.es> wrote:
> 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.
I hope this isn't perceived as an "attack", (it's just fact-seeking)
but I've actually not seen the proof or direct statement that Mary is
or isn't an "attorney". e.g. lots of people go to law school, but
don't get licensed as a lawyer, pass the bar exam, (or don't keep up
with the various regulatory requirements to continue being a licensed
attorney). It's an offense to hold oneself out as an attorney in some
places, when one isn't.
Even if she is an attorney, it's clear lawyers or legal scholars can
and do get it wrong, and can be on the losing side. In any court case
where both sides are making arguments, obviously one lawyer out of two
loses. Go watch CNN or FOX and you can see "legal analysis" of the
latest events (pick any controversial topic you'd like), where you can
and do get very disparate views from their legal guests/experts.
Someone once told me "50% of law school graduates finished in the
bottom half of their class"! :-) [a statistical truth!] (same goes for
any other field of study)
As for the Swaine report, I had raised questions about it back when we
first got it, but he didn't seem to take the point into consideration
(and it's the same point that Paul T is raising).
"1. Page 8 appears very confused. (both the paragraph above
"Discussion", and the paragraph after it). The base scenario, in the
absence of the UDRP, is that the IGO would file a complaint in court,
thereby explicitly waiving any immunity, as they brought the action.
The "imagined scenario" used in the paper is not helpful at all,
because "legitimate expectations" absent the UDRP for an IGO are vary.
"Immunity" is only a defense to an action, so of course the IGO will
have "legitimate expectations" in defending a lawsuit that it did not
initiate. However, "legitimate expectations" when an IGO *initiates* a
dispute are quite different! The legitimate expectations are that if
it initiates a court case, then it waives immunity.
So, I believe the professor needs to go back and look at that, because
the statement "imagining that scenario usefully isolates the question
as to whether an IGO has a legitimate expectation that it would be
entitled to immunity *absent* the UDRP and its concessions" is simply
wrong, because of that asymmetry (between initiating vs defending a
dispute). Thus, one can't *isolate* the question by focusing on one,
because the answers are different due to that asymmetry.
Indeed, if one reads on, this has important bearings on the paper. "If
such immunity is minimal or uncertain, then any compromises required
by the UDRP loom less large."
Absent the UDRP, immunity is *non-existent* for the IGO that initiates
a dispute in court. Thus, "any compromises required by the UDRP" in
reality do "loom less large." This goes to the heart of everything
(i.e. argues for the maintenance of the status quo).
Indeed, if one jumps to page 23, the professor writes:
"Beyond tolerating an infringement of its interests, an IGO might in
principle elect instead to proceed first (or solely) to court. This is
undoubtedly unappealing, because it would accomplish waiver by other
means. Even so, that would be the alternative were the UDRP not to
exist in its present form; it is not as though a preexisting or
independent privilege were being conditioned or withdrawn. IGOs might
also take some consolation from the advantages afforded them by the
UDRP, which—but for cases in which judicial review is later sought by
a losing registrant—affords them an efficient recourse to which they
are not otherwise entitled."
which again reinforces my position (i.e. that the legitimate
expectation absent the UDRP is that the IGO *would* waive immunity
when filing a complaint in court).
So, combining pages 8 and 23, there's really only one valid
conclusion, namely that "any compromises required by the UDRP" in
reality do "loom less large."
Anyhow, all this becomes moot eventually, as Option 1 of
Recommendation 5 takes care of everything, and puts the parties back
to the same positions they'd have been had the UDRP/URS not been
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