[gnso-igo-wt] Recommendation #3 BC’s intent/comment

[Mary Wong]

Dear all,

Happy New Year to everyone! At Chris’ request, we are forwarding the message below from Jay Chapman (on behalf of the BC) to the full EPDP Team. Jay’s message is a response to the clarifying question and note that Chris sent last week and cc’d this list on (appended below.)

Thanks and cheers
Steve, Berry & Mary


To provide additional clarity, the BC amends its suggestion to the following:

"A Respondent may challenge a decision (from the administrative proceeding canceling or transferring the domain name) in a court in at least one Mutual Jurisdiction specified by the Complainant in the Complaint, however in such a court proceeding an IGO may raise its claimed privileges and immunities. For greater clarity, nothing in this provision abrogates or diminishes an IGO’s right to claim privileges and immunities as a defense to a challenged administrative proceeding's decision, nor does the IGO’s agreement to this provision constitute a waiver of any of its claimed privileges and immunities."


From: gnso-igo-wt <gnso-igo-wt-bounces at icann.org> on behalf of Chris Disspain via gnso-igo-wt <gnso-igo-wt at icann.org>
Reply-To: Chris Disspain <chris at disspain.uk>
Date: Tuesday, January 4, 2022 at 8:26 AM
To: Jay Chapman <jay at digimedia.com>
Subject: [gnso-igo-wt] Recommendation #3 BC’s intent/comment

Dear Jay,

Happy New Year!

I am writing to follow up on the EPDP team meeting on 13 December, where we discussed the Business Constituency’s (BC) suggestion for a compromise solution in relation to Recommendation #3 and the Mutual Jurisdiction requirement. During the call, I had asked ICANN staff to review the comments and discussion, and provide clarity about what the compromise solution was intended to achieve. Following some additional work by staff, I would like to ask you if the explanation below is, indeed, what the BC had hoped its suggested text would accomplish.

The crux of the BC’s comment seems to be that any changes to the current Mutual Jurisdiction requirement: (1) should not amount to a blanket exemption for IGOs; (2) should nevertheless not require IGOs to waive their privileges and immunities; (3) should ensure that any question about IGO immunity question is raised in and answered by a court in all cases; and (4) that court should be where either the registrar or the registrant is located.

The BC’s suggested text for amending the current Mutual Jurisdiction clause seems problematic, since using words such as “submit” means that an IGO will effectively have waived its immunity in relation to the specified jurisdiction (even if it retains its immunities and privileges on other matters and in other jurisdictions). The EPDP team recognized that the BC’s suggested text did not seem to solve the problem that Recommendation #3 was directed at. However, the EPDP team agreed to explore the possibility of developing a solution which addresses the BC’s (and other similar) concerns on this topic, as an alternative to recommending a wholesale exemption from the requirement to agree to submit to Mutual Jurisdiction.

In this regard, one suggestion was to consider the feasibility of requiring that either the registrar’s or the registrar’s location be specified upfront as the venue where the registrant has to file a challenge to a UDRP/URS decision, and where the question of the IGO Complainant’s privileges and immunities (if raised) will be decided. This would still amount to a modification of the general requirement to agree to submit to a Mutual Jurisdiction, but may be a more nuanced approach than the EPDP team’s original Recommendation #3.

There are likely to be a number of questions that the EPDP team will have to discuss and resolve in relation to this approach, a few of which were raised on the 13 December call. As such, I hope that you can let me and the rest of the EPDP team know whether the above, in bold, summary of the BC’s intentions is accurate, so that we can be sure that our ensuing discussions do in fact reflect the BC’s and other similar concerns on this matter.

Cheers,


CD

Chris Disspain
chris at disspain.uk

+44 7880 642456

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