[Gnso-igo-ingo-crp] Very serious issues with The Swaine Memo & the proposed Final Report

[Paul Tattersfield]

Further to our discussions on the call last Thursday:

As Mary hasn’t yet had chance to post the latest version of the Swaine Memo
I have used an extract from the version on the working group Wiki
https://community.icann.org/pages/viewpage.action?pageId=56131791 which is
marked final and dated 6/17/2016.

>From that document:





*“3. Discussion (Bottom of page 8) The core question is whether an IGO is
“entitled to immunity,” but the baseline assumptions may be disaggregated.
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. 20 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. 21
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. If such immunity is minimal
or uncertain, then any compromises required by the UDRP loom less large; if
the IGO would otherwise be entitled to immunity, however, its potential
sacrifice seems more substantial. As explained in Part A, the answer
depends. IGOs generally enjoy immunity under international law, but
different jurisdictions apply the law differently, and even within the same
jurisdiction different IGOs may be treated differently. Part B then
introduces the complication that any such immunity may be waived through
the Mutual Jurisdiction provision, and affording such waiver is not the
same thing as violating an IGO’s immunity. Part C then discusses
alternative ways to resolve the situation. … “*

Green   Initiating proceedings waives immunity including counterclaims
Blue     Scenario (a) below
Red      Transfers those rights of scenario (a) to scenario (b)

The rest of the memo is then based on the incorrect assumption that rights
can be transferred between the two scenarios.


*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 cases.

(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



*Conclusion *
The working group has not considered (a) which hides the fact that in (b)
an IGO is never entitled to jurisdictional immunity after choosing to
initiate proceedings. The incorrect Swaine reasoning introduces irrelevant
complexity which confuses rather than clarifies and should therefore have
no place in the working group’s final report.
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