[Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus

Fri Jun 15 10:02:11 UTC 2018

Hello again Paul and everyone,

Staff directs your attention to those parts of the memo where Professor Swaine writes as follows (emphasis added):

“ …the situation raises at least two distinct immunity issues. 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. In the United States, for example, unless an IGO benefits from broader treaty protections—as the United Nations, but not its specialized agencies, does, because the United States is only party to a treaty governing the former’s immunity—the question is addressed by the International Organizations Immunities Act (the IOIA), but some courts interpret the statute as establishing absolute immunity and others view it as establishing restrictive immunity only. The answer is a bit more straightforward elsewhere, and other states tend to favor either an absolute or a functional approach. The choice among these approaches would be material. If an IGO is entitled to absolute immunity, it would in principle be protected from a suit of the kind in question, and probably under a functional approach as well—because an IGO’s protection of its name is likely to be deemed part of its functions. Immunity is less likely under a restrictive approach, which might regard this as more akin to trademark-related activity that is commercial in character.

The second, more relevant, question is whether—in light of an IGO’s assent to Mutual Jurisdiction, by virtue of its initiation of UDRP proceedings (or its registration of a domain name)—its immunity remains. Here, the more likely answer is that it would not. IGOs are capable of waiving their immunity from suit, and if they do so, they may no longer interpose immunity as a defense if another party commences a judicial action falling within the scope of that waiver. The grant of Mutual Jurisdiction should establish such a waiver, just as it would for a state entity otherwise entitled to immunity. This waiver would be construed narrowly, but it would likely permit proceeding against an IGO in at least some domestic courts.

The overall answer, then, is contingent. If there were no Mutual Jurisdiction clause, an IGO might be entitled to immunity to judicial process; if, on the other hand, the Mutual Jurisdiction clause were maintained, as in the status quo, the IGO’s immunity is less germane because it would have been waived. Equitable considerations might influence any judicial analysis …

Accordingly, an IGO complainant will have consented to judicial proceedings if a losing respondent wishes to challenge a cancellation or
—in a jurisdiction that the IGO will have selected, but from limited choices that the registrant can craft through its choice of registrar and its registering address … How matters unfold from that point will depend on national law.

In short, the Mutual Jurisdiction concession means that certain IGOs will have agreed to the possibility of a judicial process, notwithstanding any immunity to which they otherwise would be entitled.”

As such, Professor Swaine seems to have acknowledged that, in many instances where a losing registrant files suit against a prevailing IGO in a national court, the court is likely to rule that the IGO will have waived its immunity. He also points out that this is not necessarily always the case as it may depend on the approach that national court takes toward the doctrine of IGO jurisdictional immunity. As staff has noted elsewhere, there is no single, universal, unified principle that determines the result across all national courts; and there is no single international treaty that applies to all IGOs and to which all states are party.

Thus, Professor Swaine’s expert legal opinion seems to us to be saying that while it is likely that in many jurisdictions an IGO will not succeed in claiming immunity from jurisdiction, this is not to be assumed as a certainty in all jurisdictions globally. It may be a rare case that an IGO succeeds, but it is at least a possibility in a few jurisdictions.

We trust this is sufficiently clear.

Best regards,
Mary & Steve

From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces at icann.org> on behalf of Paul Tattersfield <gpmgroup at gmail.com>
Date: Friday, June 15, 2018 at 17:17
To: "petter.rindforth at fenixlegal.eu" <petter.rindforth at fenixlegal.eu>
Cc: "gnso-igo-ingo-." <gnso-igo-ingo-crp at icann.org>
Subject: Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus

Dear Petter,

On Swaine I do not believe what you are proposing is acceptable. This isn’t some minor matter for a minority opinion Swaine underpins the whole of the working group’s final report. I have shown very clearly in plain language how Swaine introduces horrendously complex issues which have absolutely no relevance whatsoever to what the working group has been asked to consider.

Both Paul Keating & George Kirikos have both indicated they share my concerns that Swaine can never be considered correct on this matter and in the alternative no one has voiced any dissent to the expanded proof I outlined. The only person to offer any comments has been Mary and she did not address the core issue I was raising and has chosen so far not to dispute or comment further on the expanded proof. (For completeness Phillip said he was proud of Swaine)

You have chosen not to comment too. Do you also still personally believe what I am saying is wrong and that Swaine can possibly be correct in his findings?

If so please can you please explain to the working group how Swaine can possibly be correct because the report fails to adequately acknowledge or address the indisputable fact that IGOs automatically waive immunity every time they commence a legal proceeding?

Yours sincerely,

Paul.

Expanded proof
http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001310.html (.pdf with colours)

Original proof
http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001202.html (.pdf with colours)

On Fri, Jun 15, 2018 at 8:29 AM, Petter Rindforth <petter.rindforth at fenixlegal.eu<mailto:petter.rindforth at fenixlegal.eu>> wrote:
Dear Working Group members,

In light of the need for us to complete our work, in my role as the Chair, I ask you all to now focus on the task at hand, which is to finalize agreement on the appropriate consensus levels for each recommendation. In this regard, please note the following:

(1) I have put the most current, likely consensus levels here in this message and will appreciate further feedback;
(2) we need now also to focus on discussing where we want to end up in relation to Option 1 and Option 4, which may be mutually incompatible; and
(3) where you have made a suggestion on any specific point/topic but it has not received support, I ask that you consider filing a Minority Statement now rather than continue to argue the point.

On consensus levels, and based on our call earlier this week and the more recent list discussions:

Recommendation 1: Full Consensus (with additional text in the rationale about why this recommendation was phrased to cover INGOs, and noting that IGOs are covered by the remaining recommendations which nevertheless do not require changing the UDRP or URS beyond what may be necessary to effectuate those additional recommendations – I note that this last caveat may of course not be necessary if the group reaches consensus on Option 4 versus Option 1, as we are currently discussing).

Recommendation 2: Consensus (with slight amendment to the recommendation text to reflect “trademark or service mark rights” where we mention “unregistered” rights).

Recommendation 3: Consensus

Recommendation 4: Strong Support but Significant Opposition (with additional text in the rationale to note that several members are strongly against subsidies of any sort).

Recommendation 5/Options 1-6 (which we can renumber/title in the Final Report to avoid confusion):

Option 1 – Consensus or Strong Support but Significant Opposition
Option 2 – No Consensus/Divergence
Option 3 – Minority View (Consensus Against)
Option 4 – Consensus or Strong Support but Significant Opposition
Option 5 – No Consensus/Divergence
Option 6 – Strong Support but Significant Opposition

On reconciling Options 1 & 4:

If, from the above tentative consensus listing, the group agrees that either Option 1 or Option 4 has sufficient consensus (but not the other), there will not be a conflict. Please therefore weigh in with your thoughts on the current consensus levels for these two options. I have seen some informal notes from WG members that support both Option 1 and Option 4, clarifying that they prefer Option 1 before Option 4, but please make such statements/clarification again.

Similarly, if we end up with Strong Support but Significant Opposition for both, we can just transmit both to the Council without the need for further discussion (but possibly with text that can include implementation guidance for Option 1).

For Option 1 – this will require a change to the UDRP and URS, so if this is the final consensus position, staff will add draft text to the report with implementation guidance.

On Minority Statements:

1) As Susan suggested on the call, Paul Tattersfield may want to consider filing a Minority Statement in regard to the Swaine memo, as despite several emails on the topic over the last month or two and on the Working Group calls, there has not been much support to remove the memo from the report.

2) Similarly, those who support recommendations/options that end up as either No Consensus/Divergence or Minority View should consider preparing Minority Statements (as I believe Phil has already indicated he may do).

Thank you to all who are contributing to a productive discussion. I ask that we refrain from questioning others’ credibility or credentials, stop bringing up old threads and posts again, and focus on getting to the final consensus. We had a good, friendly and effective call this Tuesday – let us continue that way also online!

Best regards,
Petter
--
Petter Rindforth, LL M

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