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

Mon May 14 10:08:27 UTC 2018

Hi folks,

1. The web archive of this mailing list removes the formatting, so
none of the colours appear, see:

https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001199.html

so it might be wise to resend the coloured text as a PDF, DOCX, or
even a screenshot (GIF/JPG) so that it's properly preserved in the
records of this PDP.

2. I also quoted from Page 8 back in May 2016, when raising concerns
about the report before our conference call with Professor Swaine.
See:

https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2016-May/000518.html

1. Page 8 appears very confused. (both the paragraph above
"Discussion", and the paragraph after it). The base scenario, in the
absence of the UDRP, is that the IGO would file a complaint in court,
thereby explicitly waiving any immunity, as they brought the action.
The "imagined scenario" used in the paper is not helpful at all,
because "legitimate expectations" absent the UDRP for an IGO are vary.
"Immunity" is only a defense to an action, so of course the IGO will
have "legitimate expectations" in defending a lawsuit that it did not
initiate. However, "legitimate expectations" when an IGO *initiates* a
dispute are quite different! The legitimate expectations are that if
it initiates a court case, then it waives immunity.

So, I believe the professor needs to go back and look at that, because
the statement "imagining that scenario usefully isolates the question
as to whether an IGO has a legitimate expectation that it would be
entitled to immunity *absent* the UDRP and its concessions" is simply
wrong, because of that asymmetry (between initiating vs defending a
dispute). Thus, one can't *isolate* the question by focusing on one,
because the answers are different due to that asymmetry.

Indeed, if one reads on, this has important bearings on the paper. "If
such immunity is minimal or uncertain, then any compromises required
by the UDRP loom less large."

Absent the UDRP, immunity is *non-existent* for the IGO that initiates
a dispute in court. Thus, "any compromises required by the UDRP" in
reality do "loom less large." This goes to the heart of everything
(i.e. argues for the maintenance of the status quo).

Indeed, if one jumps to page 23, the professor writes:

"Beyond tolerating an infringement of its interests, an IGO might in
principle elect instead to proceed first (or solely) to court. This is
undoubtedly unappealing, because it would accomplish waiver by other
means. Even so, that would be the alternative were the UDRP not to
exist in its present form; it is not as though a preexisting or
independent privilege were being conditioned or withdrawn. IGOs might
also take some consolation from the advantages afforded them by the
UDRP, which—but for cases in which judicial review is later sought by
a losing registrant—affords them an efficient recourse to which they
are not otherwise entitled."

which again reinforces my position (i.e. that the legitimate
expectation absent the UDRP is that the IGO *would* waive immunity
when filing a complaint in court).

So, combining pages 8 and 23, there's really only one valid
conclusion, namely that "any compromises required by the UDRP" in
reality do "loom less large."

This was the text I was trying to recall during our call last week,
when the topic came up. I think that was at the core of Paul
Tattersfield's concerns.

Sincerely,

George Kirikos
416-588-0269
http://www.leap.com/

On Sun, May 13, 2018 at 7:52 PM, Paul Tattersfield <gpmgroup at gmail.com> wrote:
> 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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