[gnso-igo-wt] Following up: Professor Swaine's legal advice on Mutual Jurisdiction and IGO jurisdictional immunity

Mary Wong mary.wong at icann.org
Tue Nov 30 17:54:32 UTC 2021

Dear all,

To assist with your review of (among others) the BC’s, IPC’s and ICA’s Public Comments relating to Mutual Jurisdiction, here is some additional context that staff hopes is helpful. We also attach a copy of Professor Edward Swaine’s full legal memo for your reference.

The staff read of Professor Swaine’s advice is that maintaining the requirement for an IGO Complainant to submit to a Mutual Jurisdiction when filing a UDRP/URS complaint is likely to amount to an IGO’s thereby waiving any jurisdictional immunity it may have in a court. Professor Swaine’s view is stated on Page 3 of his memo, as to the question (emphasis added):
"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, as it would for a state entity otherwise entitled to foreign sovereign immunity. This waiver would be construed narrowly, but it would likely permit proceeding against an IGO in at least some domestic courts."

Professor Swaine also acknowledges the tension between preserving an IGO’s immunities (e.g. by modifying or removing the Mutual Jurisdiction clause) and how that may affect a registrant’s ability to have a court agree to hear the case on its merits (since accomplishing the former may result in the court finding that it cannot take the case, as opposed to agreeing to hear the case on the basis that an IGO has already waived any immunity it may have):
“If there were no Mutual Jurisdiction clause, an IGO might be entitled to immunity from judicial process; in the status quo, however, it likely would not.  Equitable considerations might influence any judicial analysis.  If the Mutual Jurisdiction obligation were altered to preserve IGO immunity, without any possibility of judicial recourse, it might be considered an insufficient remedy for domain registrants.”

The above statement was probably the challenge that the BC compromise was trying to address; in other words, how to create a policy that ensures not just that the registrant can still go to court (which it always can), but that also prevents (as much as feasible) that court from refusing to hear the case on the basis that the IGO is immune from that court’s jurisdiction?

This is where the ICA comment appears to come in as well, in that it quotes that part of the Swaine memo where he examines a few options. Specifically, that quote comes from Professor Swaine’s analysis of the option to retain the Mutual Jurisdiction requirement (see Page 26) which, as a legal rule, he does not consider to be a “violation” of an IGO’s immunity. That section in full reads (emphasis added):
“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.”

Imposing a legal rule that does not undercut or infringe a party’s privileges or immunities as a general matter is thus not the same thing as voluntarily agreeing to waive that immunity – which an IGO will likely be considered to have done once it makes the decision to file a UDRP/URS complaint. The distinction is between whether having such a legal rule (Mutual Jurisdiction) violates another legal rule (jurisdictional immunity), versus whether the subject of that rule has the right and ability to decide whether to waive its immunities.

Thanks and cheers
Steve, Berry & Mary

From: gnso-igo-wt <gnso-igo-wt-bounces at icann.org> on behalf of Berry Cobb via gnso-igo-wt <gnso-igo-wt at icann.org>
Reply-To: Berry Cobb <Berry.Cobb at icann.org>
Date: Monday, November 29, 2021 at 4:33 PM
To: Terri Agnew via gnso-igo-wt <gnso-igo-wt at icann.org>
Subject: [gnso-igo-wt] Action Items: 29 Nov 2021 Call

Dear all,

Please find below the action items from today’s EPDP call on 29 Nov 2021.

Jay/Paul to confirm the intent of the BC/IPC comment: Accordingly, one potential compromise alternative to exempting an IGO from the mandatory submission to a “Mutual Jurisdiction”, would be amending UDRP Rules Section 3(b)(xii) with an explicit caveat as follows: “State that Complainant, without prejudice to an IGO Complainant’s privileges and sovereign immunity, will submit, with respect to any challenges to a decision in the administrative proceeding canceling or transferring the domain name, to the jurisdiction of the courts in at least one specified Mutual Jurisdiction.”
Due date: 10 Dec 2021

IGOs (Brian) to respond on-list to ICA response quoting from Prof Swaine: "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… [and] it may seem more appropriate to require an IGO to abide by a judicial process, given that it has elected to initiate UDRP proceedings, than it would be require a domain-name registrant to accept the IGO’s preferred alternative”
Due date: 10 Dec 2021

Brian to provide update to Rec #1 small team he received from UN colleagues regarding the use of "Permanent Observer Status" in context of Rec #1 intent.
Due date: 10 Dec 2021

Staff to update Rec #3 PCRT<https://community.icann.org/download/attachments/178586684/EPDP_SCRP_IGO_pcrt-Initial-Report-Recommendations_Rec3_20211129.docx?version=1&modificationDate=1638217389000&api=v2> [COMPLETE]

Next meeting: 13 Dec 2021 @ 15:00 UTC
Preliminary agenda: Review Rec #1, Conclude on Rec #3 Action Items & PCRT, begin on Rec #4 PCRT

Thank you.


Berry Cobb
Policy Development - Portfolio Manager
Internet Corporation for Assigned Names and Numbers (ICANN)
berry.cobb at icann.org
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