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

Zak Muscovitch zak at muscovitch.com
Thu Jun 21 16:59:30 UTC 2018


Further to the IGO call, here is some proposed revised language for
Recommendation #4:



Notwithstanding the GAC advice concerning access to curative rights
processes for IGOs as well

as the Charter language requiring the Working Group to consider “The need
to address the

issue of cost to IGOs and INGOs to use curative processes”, no Working
Group members are in favour of subsidies. Nevertheless

this Working Group recognizes has no authority to obligate the expenditure
of ICANN funds, and therefore the Working Group

understands that the feasibility of providing IGOs with access to the UDRP
and URS at no or

nominal cost to the IGOs is one that must be addressed directly through
discussions between

the ICANN Board with the GAC and IGOs.

.

Note: Many Working Group members believe that a respondent should also be
eligible to receive financial support for its

defense in a case where ICANN has subsidized the complainant



I don’t have a Word document to work with, but maybe this will get us over
the hurdle and get to full consensus.





Zak





*From:* Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces at icann.org> *On Behalf
Of *Mary Wong
*Sent:* June-21-18 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:* 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







Fenix Legal KB

Stureplan 4c, 4tr

114 35 Stockholm

Sweden

Fax: +46(0)8-4631010

Direct phone: +46(0)702-369360

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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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