[gnso-igo-wt] IGO response to comments on the Mutual Jurisdiction provision

Alexandra.EXCOFFIER-NOSOV at oecd.org Alexandra.EXCOFFIER-NOSOV at oecd.org
Mon Dec 13 12:33:05 UTC 2021

Dear colleagues,
At the last call, the Chair asked the position of IGOs with respect to the Mutual Jurisdiction clause, including comments made by BC and ICA citing Professor Swaine's opinion.
IGOs have repeatedly and consistently expressed their position on this topic.
As a start, a word about Professor Swaine's neutrality, as mentioned by some.  The opinion was procured by and for the GNSO.  The IGOs were not provided an opportunity to participate in the selection of Prof Swaine nor were the IGOs consulted on the terms of reference for the opinion, nor involved in supervising his work.  The IGO reaction to Prof Swaine's opinion (delivered after ICANN in Helsinki) is attached for reference.

The ICA cites the following paragraph from the Swaine memo: "One legally available option is to maintain the status quo.  Even if one assumes that an IGO, absent Mutual Jurisdiction, might be capable of asserting immunity, affording them a means of surrendering that immunity via the Mutual Jurisdiction provision is not itself an infringement.  Accordingly, as a purely legal matter, it seems unlikely that the Mutual Jurisdiction provision, as it may be accepted by an IGO, establishes or occasions a violation of IGO immunity."

However, the legality of the Mutual Jurisdiction clause or whether it violates immunities is not the relevant consideration.  What matters is whether by submitting to the Mutual Jurisdiction when filing a UDRP complaint, an IGO is being forced to waive its immunities.  Here, Professor Swaine advises that it would likely amount to an IGO's waiving their jurisdictional immunity: "whether-in light of an IGO's assent to Mutual Jurisdiction-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 would likely establish such a waiver..."

That answer should be the end of the present discussion.

The immunity of international organizations from suit or other legal process has been a basic principle of international organizations since their creation in the aftermath of World War II.  International organizations are separate and independent bodies created by multiple States to address regional or global issues and provide a forum for cross-border collaboration amongst member States as well as non-member States or private actors.   Immunity from legal process (jurisdiction) provides international organizations with protection necessary to enable them to successfully and efficiently fulfil their missions of public interest with full independence, avoiding interference from national courts.  In this way, immunities shield IGOs from the undue influence of a single State and protect their independent character.

This (ICA) proposal minimises the gravity that a waiver of immunities means.  Waiving immunity would frustrate the ability of international organizations to carry out their public interest missions by opening the door to private litigation that would interfere with the discharge of their missions.  These concerns are fundamental to IGOs' existence, and extend beyond the DNS or particular invocations of intellectual property rights.  Waiving their immunity is a grave act for an International Organization, taken by express decision at the highest level of the Organization.  IGOs only rarely and exceptionally waive their immunity for any purposes; doing so for each application to the UDRP would be unacceptable.

If we understand comments, including Staff comments, this is merely a matter of conflicting legal rules and finding equity.  However, such statements and opinions disregard the reason for the existence of immunities and the fact that Governments expressly decided that immunities of IGOs prevail over other legal rules and prevail over rights of a party to access to court against an IGO.  This does not mean that IGOs are not open to exploring solutions, which is demonstrated by their involvement in the various ICANN processes, including the present PDP.

As far as compromise is concerned, the IGOs (and the GAC though numerous communiqués) have sought preventive protections, ensuring also protections of legitimate rights holders, and now IGOs are compromising for curative rights.  The GAC and IGOs have sought a separate curative process adapted for IGOs, and this group completely glossed over it, even though Jeff had given it a try.  We comprised there.  IGOs sought that any "appeals" should be brought via non-judicial means such as arbitration, but have compromised and registrants are not prevented from appealing to court.  But one thing that IGOs should not be asked to compromise on are our immunities in order to be able to access the UDRP.
ICANN is supposed to represent a multi-stakeholder model, so is it right that one stakeholder should be virtually unable to use the curative mechanism?  And we remind that IGOs consistently supported this underlying multi-stakeholder model for ICANN; this in the face of repeated proposals since the mid-nineties by certain governments that the Internet, and the functions performed by IANA, should rather be governed by a multilateral, state-centric model.
Finally, we acknowledge the Chair's and ICANN staff efforts to profoundly address the public comments submitted on the draft report.  Many IGOs had submitted comments on the previous PDP which were not considered in any manner.  Following this, the GAC issued a letter to the GNSO Chair and the United Nations issued a letter on behalf of IGOs to the Chair of the ICANN Board, which summarize well the issues and efforts which we restate presently and which remain to this day (both attached).
We hope that this clarifies, once again, the position of IGOs on this topic - that waiver of immunities (by submitting to UDRP-based Mutual Jurisdiction) is not an option.

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