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

[Jay Chapman]

Thanks, Phil.

Wouldn't you agree that, regardless of the term used to describe, it is an
appeal in *substance* - as the registrant's *property* is already subject
to be taken from the registrant?  De novo simply refers to the standard of
review - the court will take a fresh look without deference to the UDRP.


Sincerely,
Jay Chapman

* <http://www.digimedia.com>*

On Thu, Jun 21, 2018 at 10:24 AM, Corwin, Philip via Gnso-igo-ingo-crp <
gnso-igo-ingo-crp at icann.org> wrote:

> Thanks Mary.
>
>
>
> In regard to this –
>
>
>
> *The fundamental point of substantive [dis]agreement seems to be whether
> it is the IGO that can be considered to have initiate the legal proceedings
> when it first files a complaint under the UDRP or URS. Our understanding of
> Paul’s position is that he believes this to be the case, and as such the
> IGO must necessarily be considered to have waived any jurisdictional
> immunity to which it may otherwise be entitled.*
>
>
>
> *Our understanding, however, of legal process and of what we believe to
> have been Professor Swaine’s assumption, is that this may not be the case.*
>
>
>
> I would suggest that it is absolutely not the case. While follow-up
> judicial filings by UDRP-losing registrants are loosely referred to as an
> “appeal”, it is in fact well understood that they are de novo proceedings
> that are decided independently of the prior DRP on the basis of relevant
> statutes and case law, not the UDRP standard.
>
>
>
> While I can’t possibly speak to all jurisdictions, in the US the
> registrant would file the action under the ACPA, the IGO would then seek
> dismissal on grounds of immunity, and the registrant would then present
> evidence against that motion based upon a claim that the IGO had waived
> immunity when it brought the UDRP action with knowledge of the mutual
> jurisdiction provision. The court would then decide whether to dismiss the
> case for lack of jurisdiction over one of the parties, or let it proceed
> based on prior waiver of immunity.
>
>
>
> The court case is an independent judicial action initiated by the domain
> registrant, with UDRP policy staying effect of the prior decision until the
> court case is decided or dismissed.
>
>
>
> Philip S. Corwin
>
> Policy Counsel
>
> VeriSign, Inc.
>
> 12061 Bluemont Way
> Reston, VA 20190
>
> 703-948-4648/Direct
>
> 571-342-7489/Cell
>
>
>
> *"Luck is the residue of design" -- Branch Rickey*
>
>
>
> *From:* Mary Wong [mailto:mary.wong at icann.org]
> *Sent:* Thursday, June 21, 2018 11:08 AM
> *To:* Paul Tattersfield <gpmgroup at gmail.com>; Corwin, Philip <
> pcorwin at verisign.com>
> *Cc:* gnso-igo-ingo-crp at icann.org
> *Subject:* [EXTERNAL] Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize
> our work and identify level of consensus
>
>
>
> Apologies, we of course meant “fundamental point of DISAGREEMENT”. Thank
> you.
>
>
>
> *From: *Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces at icann.org> on behalf
> of Mary Wong <mary.wong at icann.org>
> *Date: *Thursday, June 21, 2018 at 11:05
> *To: *Paul Tattersfield <gpmgroup at gmail.com>, "Corwin, Philip" <
> pcorwin at verisign.com>
> *Cc: *"gnso-igo-ingo-crp at icann.org" <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
>
>
>
> Hello everyone,
>
>
>
> As Paul had requested in a previous message that staff not merely
> reproduce excerpts from Professor Swaine’s memo, please allow us to provide
> a response. The fundamental point of substantive agreement seems to be
> whether it is the IGO that can be considered to have initiate the legal
> proceedings when it first files a complaint under the UDRP or URS. Our
> understanding of Paul’s position is that he believes this to be the case,
> and as such the IGO must necessarily be considered to have waived any
> jurisdictional immunity to which it may otherwise be entitled.
>
>
>
> Our understanding, however, of legal process and of what we believe to
> have been Professor Swaine’s assumption, is that this may *not* be the
> case. The UDRP and URS are mandatory administrative proceedings that are
> separate from, and independent of, the judicial process. As such, when a
> losing respondent files suit in a national court, it is up to that court to
> determine whether and how to give any deference to the UDRP under its
> national laws (as well as consider if, to the extent the IGO decides to
> claim jurisdictional immunity from that court, such an immunity claim will
> be permitted under its national laws). The court filing by the losing
> respondent is not a direct appeal from the UDRP panel decision, and thus
> not a continuation of the UDRP proceeding but may be considered a separate
> legal filing.
>
>
>
> While many jurisdictions may indeed rule that an IGO, having agreed to
> Mutual Jurisdiction, will therefore have given up any immunity, this is not
> necessarily or universally the case (as Professor Swaine acknowledged). To
> give a specific example, we believe that decisions in civil cases in Korean
> courts concerning enforcement of UDRP decisions are decided under the
> relevant Korean domestic laws based on Korean Supreme Court jurisprudence.
>
>
>
> 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: *Thursday, June 21, 2018 at 10:24
> *To: *"Corwin, Philip" <pcorwin at verisign.com>
> *Cc: *"gnso-igo-ingo-crp at icann.org" <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
>
>
>
> You claim you have proven in a single page that a 25-page analysis of the
> issue of IGO immunity in the context of judicial appeal of a UDRP decision,
> written by a professor of and expert in international law, is wrong. I
> disagree.
>
> Its competence not office that matters, one of the big advantages of the
> multistakeholder model is it  can allow The Emperor’s New Clothes
> situations to come to light that would otherwise remain clothed in expert
> opinion. It is not helpful to simply say I am wrong. You should at least
> try to show why what I have said is wrong, as I have clearly, concisely and
> precisely done with the Swaine errors.
>
> I’ll reply to each of the other points you raise, but it does rather play
> into a ruse to refuse to address the core issue and everyone then gets
> obstructed and deffered to anything but the question asked. Which then of
> course opens up the opportunity for a myriad of other tangential but
> ultimately fruitless lines of engagement thereby helping avoid the core
> issue for even longer.
>
>
>
> There is no such thing as proof in application of regulation and law to
> specific fact situations. The law is not black and white but many shades of
> grey. The law is not a math equation with one single answer that can be
> proven, or a science experiment that can be replicated to prove a theorem.
> That is why every modern judicial system has a supreme judicial body to
> resolve the inconsistencies between lower court decisions applying the same
> law to similar facts. And even then, the “correct” answer can be determined
> by a single vote, as evidenced by the many 5-4 split decisions of the US
> Supreme Court.
>
> We are here to make an existing framework more equitable not litigate it.
> What we are supposed to be doing is drafting the equivalence of statute. We
> need to be clear and concise, well intentioned and precise.
>
>
>
> As I’ve already pointed out, the Swaine memo does not dictate any
> particular policy recommendation outcome, and parts of it can be relied
> upon by proponents of option 1 who believe that the UDRP’s reference to
> mutual jurisdiction trumps all other considerations. I respectfully dissent
> from that position and support option 3 because I believe that it is
> important to restrain ICANN from attempting to curb the legal rights of any
> party to a UDRP, registrant or IGO.
>
> The problem is Swaine gives the impression it is relevant to what the
> working group has been asked to consider – whereas really, its irrelevant
> complexity confuses rather than clarifies.
>
> I also support option 3 because I believe it has some chance of becoming
> ICANN policy and resolving this matter, while I cannot envision option 1
> ever being approved by the ICANN Board even if it is passed forward from
> Council.
>
> In your former role as co-chair this is called bias. This is one of the
> main reasons why this working group reached the point where it almost
> collapsed and we now have a significantly weaker final report which was
> predominantly drafted with the intention of supporting your preferred
> option. This is very bad because it fails to fully articulate the sound
> reasons behind the final consensus positions.
>
>
>
> The Swaine memo is an informed and nuanced discussion of the central issue
> before this WG. It should be retained in our Final Report to inform Council
> and the Board of the complex legal issues relevant to the matter of IGO
> access to CRP, both when considering this WG’s Final Report and later on --
> when this issue is revisited after it becomes clear that we have not
> produced a policy option acceptable to the GAC and IGOs or capable of
> achieving Board approval.
>
> The multistakeholder working group model is about building and supporting
> consensus and it isn’t helpful when those leading a group will only
> contribute positively when it furthers their own agenda. We could easily
> have easily improved process to help IGOs & INGOs and at the same time
> improved it for registrants too, instead you chose to lead the working
> group on path to try and force through at all costs the ridiculous #3. -
> Very sad and not what the multistakeholder model was ever intended for.
>
>
>
> Prove me wrong show me why my proof is wrong :-)
>
> Original proof
> http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001202.html
> (.pdf with colours)
> Expanded proof
> http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001310.html
> (.pdf with colours)
>
>
>
> On Tue, Jun 19, 2018 at 1:58 PM, Corwin, Philip <pcorwin at verisign.com>
> wrote:
>
> Paul:
>
>
>
> You claim you have proven in a single page that a 25-page analysis of the
> issue of IGO immunity in the context of judicial appeal of a UDRP decision,
> written by a professor of and expert in international law, is wrong. I
> disagree.
>
>
>
> There is no such thing as proof in application of regulation and law to
> specific fact situations. The law is not black and white but many shades of
> grey. The law is not a math equation with one single answer that can be
> proven, or a science experiment that can be replicated to prove a theorem.
> That is why every modern judicial system has a supreme judicial body to
> resolve the inconsistencies between lower court decisions applying the same
> law to similar facts. And even then, the “correct” answer can be determined
> by a single vote, as evidenced by the many 5-4 split decisions of the US
> Supreme Court.
>
>
>
> As I’ve already pointed out, the Swaine memo does not dictate any
> particular policy recommendation outcome, and parts of it can be relied
> upon by proponents of option 1 who believe that the UDRP’s reference to
> mutual jurisdiction trumps all other considerations. I respectfully dissent
> from that position and support option 3 because I believe that it is
> important to restrain ICANN from attempting to curb the legal rights of any
> party to a UDRP, registrant or IGO. I also support option 3 because I
> believe it has some chance of becoming ICANN policy and resolving this
> matter, while I cannot envision option 1 ever being approved by the ICANN
> Board even if it is passed forward from Council.
>
>
>
> The Swaine memo is an informed and nuanced discussion of the central issue
> before this WG. It should be retained in our Final Report to inform Council
> and the Board of the complex legal issues relevant to the matter of IGO
> access to CRP, both when considering this WG’s Final Report and later on --
> when this issue is revisited after it becomes clear that we have not
> produced a policy option acceptable to the GAC and IGOs or capable of
> achieving Board approval.
>
>
>
> Philip
>
>
>
> Philip S. Corwin
>
> Policy Counsel
>
> VeriSign, Inc.
>
> 12061 Bluemont Way [maps.google.com]
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D12061-2BBluemont-2BWay-2B-250D-250AReston-2C-2BVA-2B20190-26entry-3Dgmail-26source-3Dg&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=9szjeGTE5Lj_6br6eb5EDZXC0GpzOxeAjpU8U_DjC9k&s=Y7gnLMvPtKMwL7DWx3NDpSLfTR3ycfg5XBKcaP4Clf8&e=>
> Reston, VA 20190
>
> 703-948-4648/Direct
>
> 571-342-7489/Cell
>
>
>
> *"Luck is the residue of design" -- Branch Rickey*
>
>
>
> *From:* Paul Tattersfield [mailto:gpmgroup at gmail.com]
> *Sent:* Tuesday, June 19, 2018 3:35 AM
> *To:* Corwin, Philip <pcorwin at verisign.com>
> *Cc:* petter.rindforth at fenixlegal.eu; gnso-igo-ingo-crp at icann.org
>
>
> *Subject:* [EXTERNAL] Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize
> our work and identify level of consensus
>
>
>
> With all respect, in regard to your statement, “I have shown very clearly
> why the IGOs are never entitled to immunity after they have chosen to
> initiate proceedings in ANY forum”,
>
>
>
> Yes that’s right.
>
>
>
> and without even delving into the quality of your analysis, the fact that
> you believe an IGO would never succeed in an immunity defence in a judicial
> appeal from a UDRP filed by the losing registrant would not prevent any
> judge in any  court from finding to the contrary and dismissing the case.
>
>
>
> Wrong - you are not understanding what I wrote and then attributing your
> own conclusion to me. Go read my proof and show me where I am wrong I don’t
> believe you can.
>
>
>
> The disagreement within this working group is over what should happen in
> the event of that rare but nonetheless possible scenario.
>
>
>
> Outside of the original co-chairs there is little disagreement, you should
> have the grace to respect that position.
>
>
>
> Prof. Swaine was asked to inform us as to how a court would deal with such
> an immunity claim and the likely response from plaintiff domain registrant
> that the IGO had waived its immunity by filing a UDRP with knowledge of the
> mutual jurisdiction clause.
>
>
> It is only the forum that makes the domain registrant a “plaintiff” on a
> claim that an IGO chose to initiate. That is the quirk of process. It is
> still the same principle matter. Whether the IGO chose to file a URDP or
> judicial proceedings the IGO is choosing to INTIATE proceedings.
>
>
>
> His memo discussed the different analytical approaches that courts employ
> as well as the interplay with other factors, such as national laws
> addressing sovereign immunity. As Petter noted, he concluded that many
> courts would determine that immunity had been waived, but that case
> dismissal by some courts could not be ruled out.
>
> The huge mistake Professor Swaine made was to analyze in great depth the
> scenario where an IGO is defending a claim and mistakenly assume that any
> rights to jurisdictional immunity there could be “transferred/applied” to
> the scenario where an IGO is initiating a claim.
>
> My proof pinpoints very precisely where and how he made that error in his
> reasoning on page 8 of his memo.
>
>
>
>
>
> The Swaine memo does not dictate any particular policy outcome within this
> WG, and it can likely be cited by those with differing views  on the key
> issue before us. It informed our consideration of the questions before us
> and should be included within the final report as a reference point, and
> only as that. If you think anything in it is wrong you are free to include
> that in a minority statement.
>
>
> Swaine can never be relevant because the working group has not considered
> the case where an IGO is defending a UDRP brought against it by a TM owner.
> Swaine’s complexity confuses rather than clarifies and if you really must
> include it stick it in your minority report – it’s junk
>
> It’s quite simple Phillip go and read my proof (it’s less than a page) and
> if you believe it is wrong show me where it is wrong. I don’t believe you
> can that is why you are squandering everyone’s time (again).
>
>
> 1 Original proof
> http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001202.html
> (.pdf with colours)
> 2 Expanded proof
> http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001310.html
> (.pdf with colours)
>
>
>
> On Mon, Jun 18, 2018 at 1:30 AM, Corwin, Philip <pcorwin at verisign.com>
> wrote:
>
> Paul:
>
>
>
> With all respect, in regard to your statement, “I have shown very clearly
> why the IGOs are never entitled to immunity after they have chosen to
> initiate proceedings in ANY forum”, and without even delving into the
> quality of your analysis, the fact that you believe an IGO would never
> succeed in an immunity defence in a judicial appeal from a UDRP filed by
> the losing registrant would not prevent any judge in any  court from
> finding to the contrary and dismissing the case. The disagreement within
> this working group is over what should happen in the event of that rare but
> nonetheless possible scenario.
>
>
>
> Prof. Swaine was asked to inform us as to how a court would deal with such
> an immunity claim and the likely response from plaintiff domain registrant
> that the IGO had waived its immunity by filing a UDRP with knowledge of the
> mutual jurisdiction clause. His memo discussed the different analytical
> approaches that courts employ as well as the interplay with other factors,
> such as national laws addressing sovereign immunity. As Petter noted, he
> concluded that many courts would determine that immunity had been waived,
> but that case dismissal by some courts could not be ruled out.
>
>
>
> The Swaine memo does not dictate any particular policy outcome within this
> WG, and it can likely be cited by those with differing views  on the key
> issue before us. It informed our consideration of the questions before us
> and should be included within the final report as a reference point, and
> only as that. If you think anything in it is wrong you are free to include
> that in a minority statement.
>
>
>
> Philip
>
>
>
> Philip S. Corwin
>
> Policy Counsel
>
> VeriSign, Inc.
>
> 12061 Bluemont Way [maps.google.com]
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D12061-2BBluemont-2BWay-2B-250D-250AReston-2C-2BVA-2B20190-26entry-3Dgmail-26source-3Dg&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=9szjeGTE5Lj_6br6eb5EDZXC0GpzOxeAjpU8U_DjC9k&s=Y7gnLMvPtKMwL7DWx3NDpSLfTR3ycfg5XBKcaP4Clf8&e=>
> Reston, VA 20190
>
> 703-948-4648/Direct
>
> 571-342-7489/Cell
>
>
>
> *"Luck is the residue of design" -- Branch Rickey*
>
>
>
> *From:* Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces at icann.org] *On
> Behalf Of *Paul Tattersfield
> *Sent:* Sunday, June 17, 2018 2:55 PM
> *To:* petter.rindforth at fenixlegal.eu
> *Cc:* gnso-igo-ingo-. <gnso-igo-ingo-crp at icann.org>
> *Subject:* [EXTERNAL] Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize
> our work and identify level of consensus
>
>
>
> Dear Petter,
>
>
> The problem is the issue I am raising is overarching – I have shown very
> clearly why the IGOs are never entitled to immunity after they have chosen
> to initiate proceedings in ANY forum. I have also shown very precisely
> where Swaine went wrong in his reasoning.
>
> Petter wrote:
> *“And I cannot see that Prof Swaine clearly states that IGO’s have the
> right to refer to their immunity. Instead, he states several times that the
> fact that an IGO has accepted a URS or UDRP case, is also likely to be seen
> as a waiver of their immunity. This seems especially related to UN: …”*
>
> This misses the point the IGOs are choosing to initiate proceedings.
> Professor Swaine has analysed the scenario where an IGO is defending an
> initial action and then assumed incorrectly that any immunity rights
> enjoyed where an IGO is defending an action can be “transferred/allocated/applied”
> to the scenario where an IGO brings an action as the plaintiff (or
> claimant). When the IGO is the initial plaintiff (or claimant) it is NEVER
> entitled to jurisdictional immunity.
>
> I have responded to all of Mary’s points in this thread and in more detail
> to the other thread where Paul K. supported my concerns and David drew
> attention to the United Nations Convention on Jurisdictional Immunities of
> States and Their Property treaty.
>
> Further I have reached out to as many people as possible inviting them to
> refute my reasoning and so far no one has been able to show how I am even
> slightly wrong including people who have represented IGO interests.
>
> Please show me how my proof is anyway wrong….
>
> Yours sincerely,
>
>
> Paul.
>
> Original proof
> http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001202.html
> (.pdf with colours)
>
> Expanded proof
> http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001310.html
> (.pdf with colours)
>
>
>
> On Sun, Jun 17, 2018 at 5:29 PM, Petter Rindforth <
> petter.rindforth at fenixlegal.eu> wrote:
>
> Dear Paul and WG Members,
>
>
>
> As you all know, we had a call on February 16, 201*6* to discuss Prof
> Swaine’s memo, and it was further discussed during 2016. I also tried to
> see from your (Paul) e-mails of December 2016 (especially of December 14,
> 2016), when we discussed the details of our Draft Initial Report that Mary
> had sent to our WG, but I could not find any specific note there by you on
> the report, other than suggestions to fix some typos in our DIR.
>
>
>
> Prof Swaine’s memo and report is in fact a part of our work and report, to
> refer to. And I cannot see that Prof Swaine clearly states that IGO’s have
> the right to refer to their immunity. Instead, he states several times that
> the fact that an IGO has accepted a URS or UDRP case, is also likely to be
> seen as a waiver of their immunity. This seems especially related to UN:
>
>
>
> “Article 2(2) of the General Convention, the UN’s absolute immunity from
> legal process (other than relative to execution) may be expressly waived in
> particular cases. National law may also resolve the matter. For example,
> the IOIA provides relevant IGOs with immunity (on the same terms as
> afforded states) “except to the extent that such organizations may
> expressly waive their immunity for the purpose of any proceedings or by the
> terms of any contract.”
>
>
>
> What Prof Swaine however also points out, is the fact that all national
> law worldwide is not clear, and further that it is also up to each national
> court to decide to accept immunity or not, and especially IGO's that are
> not UN related has not the same exact position.
>
>
>
> His conclusion was that the topic is not 100% clear (which ofcourse IGO's
> does not agree upon, as the same with you - however with two completely
> different views).
>
>
>
> Option 3 has covered such possible situation, and made sure that also in
> (possible rare) cases where a national court accept immunity, the domain
> holder can at least have possibility to get the case decided by
> arbitration. (= *This was my short personal note, knowing that the
> majority of the WG does not agree with establishing such solution*).
>
>
>
> *To summarize:*
>
>
>
> We have Prof. Swaine’s report to refer to and that has for long time been
> a part of, and reference, related to our full report.
>
>
>
> Paul, I appreciate your work with comments, and recommend that you prepare
> a Minority Statement in regard to the Swaine memo.
>
>
>
> Also, a reminder to other WG members that support Options with no majority
> from the WG, please prepare your Minority Statements.
>
>
>
> *Finally:*
>
>
>
> Please focus on our Final Report and keep the suggestions within our WG
> mailing list. We are close to make a conclusion on each Recommendation and
> Option. It is better for us all to effectively conclude our work now in a
> friendly manner, and create our Final Report, that can then be further
> discussed by others.
>
>
>
> Best regards,
>
> Petter
>
>
>
> --
>
> Petter Rindforth, LL M
>
>
>
>
>
>
>
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> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.fenixlegal.eu&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=9szjeGTE5Lj_6br6eb5EDZXC0GpzOxeAjpU8U_DjC9k&s=xYbaX-5E41wnuzBsEV-GqiLYv2lEPucmqrjyOlYWWkY&e=>
>
>
> Thank you
>
>
>
>
>
> 15 juni 2018 13:28:59 +02:00, skrev Paul Tattersfield <gpmgroup at gmail.com
> >:
>
> 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*.
>
>
>
> Wrong –  Immunity is only a defence where an IGO is a defendant NOT a
> claimant.  In the initial claim the IGO is the claimant whether it be a
> UDRP claim or a judicial claim.
>
>
>
>
>
> 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.*
>
>
>
> Yes immunity is complex, very complex, but it is not relevant because the
> IGO is the initiating the claim.
>
>
>
> 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.*
>
>
>
> Wrong, the mutual jurisdiction clause is a separate very high hurdle in a
> litigation strategy for an IGO. There is no immunity to remain – see above.
>
>
>
> 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.*
>
>
>
> Wrong – no it isn’t contingent there is no immunity to defend – see above
>
>
>
> 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. *This is
> a truism but is not relevant because there is no immunity to defend
>
>
>
>
>
> *In short, the Mutual Jurisdiction concession means that certain IGOs will
> have agreed to the possibility of a judicial process, *
>
> That’s right - that’s what the mutual jurisidiction clause is for, That is
> how it should be. If you make an allegation and ask a forum to rule on it
> to you have to be prepared to defend the allegation including counterclaims
>
> * notwithstanding any immunity to which they otherwise would be entitled*
> .”
>
>
>
> Wrong – there isn’t any immunity to defend – see above
>
>
>
>
>
>
>
>
>
> 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.
>
>
>
>
>
> If you want to challenge my proof you need show in the text which I have
> included again below for completeness why I am wrong not quote from the
> report which based on the errors I am alleging.
>
>
>
> Looking at what Professor Swaine said:
>
> *“The scope of IGO immunity would most clearly be at issue if the Mutual
> Jurisdiction provision were irrelevant and the IGO had not itself initiated
> judicial proceedings, since that would risk waiving any immunity to which
> it may be entitled, including to counterclaims**.”*
>
> I think we can all agree that; initiating proceedings waives immunity
> including counterclaims.
>
>
> *“This might be the case, for example, if a domain-name registrant sought
> a declaratory judgment against an IGO in relation to some actual or
> potential infringement**.” *
>
> I think we can all agree that; if a TM owner starts proceedings to acquire
> a domain which an IGO has registered then an IGO would be entitled to use
> jurisdictional immunity to prevent a hearing taking place.
>
>
> *“That scenario, though not otherwise of concern here, does usefully
> isolate the question as to whether an IGO has a legitimate expectation that
> it would be entitled to immunity absent the UDRP”*
>
> I think we can all agree that; the working group has not and will not
> consider the case where a TM owner starts proceedings against an IGO.
>
>
>
> *Here’s the problem*
>
> What Professor Swaine has done is say well he’s isolated a situation where
> an IGO would be entitled to claim an immunity defence absent UDRP so now
> he’s good to go for the rest of his report on immunity.
>
> Wrong.
>
> Just because Professor Swaine has identified a situation where an IGO is
> entitled to claim an immunity defence doesn’t mean he can then apply it to
> other situations
>
>
> *. *
>
> *Proof *Absent UDRP there are two possible ways the immunity question
> could come before a court:
>
>
>
> (a) A TM owner seeks to acquire a domain which an IGO has registered
> (b) An IGO seeks to acquire a domain which a domain registrant has
> registered
>
> In (a) the IGO would be entitled to raise an immunity defence
> In (b) the IGO would be required to waive immunity for the court to
> consider the matter.
>
> As the UDRP is an administrative procedure to help take less complex cases
> out of the judicial system if UDRP is to afford the same protections as any
> other forum then UDRP needs to take into account both scenarios.
>
>
>
> (a) A TM owner seeks to acquire a domain which an IGO has registered by
> bringing a UDRP
> (b) An IGO seeks to acquire a domain which a domain registrant has
> registered by bringing a UDRP
>
>
> *Let’s confirm what is happening with colours:*
> Blue = An immunity defence is good to go
> Red = An immunity defence is a no-no
>
> Applying the logic Professor Swaine has used we have
>
> (a) A TM owner seeks to acquire a domain which an IGO has registered by
> bringing a UDRP
> (b) An IGO seeks to acquire a domain which a domain registrant has
> registered by bringing a UDRP
>
> What Professor Swaine is asking the reader to accept is the right to an
> immunity defence can be applied to both (a) and (b) scenarios and this can
> not be right because
>
>
>
> Absent UDRP we have
>
>
>
> (a) A TM owner seeks to acquire a domain which an IGO has registered
> (b) An IGO seeks to acquire a domain which a domain registrant has
> registered
>
> So the correct position at UDRP is
>
> (a) A TM owner seeks to acquire a domain which an IGO has registered by
> bringing a UDRP
> (b) An IGO seeks to acquire a domain which a domain registrant has
> registered by bringing a UDRP
>
>
> Quite simply the IGOs are never entitled to jurisdictional immunity after
> initiating proceedings.
>
>
>
> On Fri, Jun 15, 2018 at 11:02 AM, Mary Wong <mary.wong at icann.org> wrote:
>
> 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> 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
>
>
>
>
>
>
>
> Fenix Legal KB
>
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>
> 114 35 Stockholm
>
> Sweden
>
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>
> Direct phone: +46(0)702-369360
>
> E-mail: petter.rindforth at fenixlegal.eu
>
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