March 2015 - Gnso-igo-ingo-crp

Agenda and documents for WG call on 1 April
by Mary Wong March 30, 2015

March 30, 2015

Dear WG members, The proposed agenda for our next meeting on Wednesday 1 April 2015 is as follows: 1. Roll call/updates to SOI 2. Update on engagement with the GAC and IGOs (Mason Cole; WG co-chairs) 3. Update on proposed amendment to WG Charter by GNSO Council (Phil Corwin to lead; see attached draft motion to the Council) 4. Discuss considerations/issues relating to a possible de novo appeal mechanism for IGOs (Petter Rindforth to lead; see attached Briefing Note) 5. Next steps/next meeting For agenda item #4, the attached Briefing Note summarizes a framework that was developed by the WIPO Secretariat in 2003, at the request of WIPO¹s Standing Committee for Trademarks, Industrial Designs and Geographical Indications (SCT) to deal with similar sovereign immunity issues in relation to protection of country names. As part of our WG's continuing efforts to develop a deeper understanding of the issues surrounding sovereign immunity, the WG co-chairs thought it would be timely and useful to have an open discussion of some of the potential elements, limitations and scope of, and other questions concerning, a non-judicially-based appeals mechanism for disputes in the IGO context. Please note that this document and discussion is not intended to narrow the WG¹s deliberations and options in relation to sovereign immunity or any other issue, it is intended merely to be a starting point for the WG to discuss the possible merits (if any) of alternative appeal mechanisms. Finally, attached also is the full SCT paper on which our Briefing Note was based. This will also be uploaded to the WG¹s wiki space as part of our Background Documents for your reference. Thanks and cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names & Numbers (ICANN) Telephone: +1 603 574 4892 Email: mary.wong(a)icann.org

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Next working group call?
by George Kirikos March 24, 2015

March 24, 2015

Hello, Is the next call going to be on March 25, or April 1? During the last call, it was mentioned that we might wait until the IGOs had responded to the letter, etc., but I wasn't sure if a definitive date had been set for the next call. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

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Follow up questions for IGO small group on sovereign immunity
by Mary Wong March 22, 2015

March 22, 2015

Dear WG members, Please find attached a draft note addressed to the IGO small group that was prepared by the WG co-chairs and staff, based on recent WG discussions and research done to date on the sovereign immunity issue. The co-chairs propose that following review and approval from the WG, they send these questions along with a cover note to the IGO small group, in the hope that the IGO representatives will continue to be responsive and helpful to ICANN¹s efforts to work through the matter. The cover note will include the WG¹s thanks to the IGO small group for its January response, along with an update on the WG¹s current thinking on the ³standing² issue and Article 6ter of the Paris Convention. Please reply to the list via email with any comments you or your groups may have on the document as soon as you can. For your information, you will see from the draft that we have added another UDRP decision to the World Bank example that George provided earlier in our deliberations this second case concerns the Bank for International Settlements, which also is on the GAC list of IGOs dating from 2013. I attach also an updated version of the staff Briefing Note on sovereign immunity and IGOs that was circulated last week this update adds a reference to the Canadian statute that the Canadian Supreme Court relies on in the NAFO case which George brought to the WG¹s attention last week. Finally, please note that the GNSO Council has been updated on the WG¹s progress during our recent face-to-face facilitated meeting in Singapore, and will take up at its meeting on Thursday the specific question of whether they agree with the WG¹s thinking that the list of IGOs in the WIPO database who requested Article 6ter protection should be the list upon which the WG¹s recommendations (if any) will be based, especially for ³standing² and in principled preference to the original GAC list, which contains IGOs selected based on fulfillment of the .int eligibility criteria and which was the list that our WG was chartered to discuss. We will provide the WG with a further update following the Council¹s deliberations on this point later this week. Thanks and cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names & Numbers (ICANN) Telephone: +1 603 574 4892 Email: mary.wong(a)icann.org

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MP3 IGO WG - Wednesday, 18 March 2015 at 1700 UTC
by Nathalie Peregrine March 18, 2015

March 18, 2015

Dear All, Please find the MP3 recording for IGO-INGO Access to Curative Rights Protection Mechanisms Working Group call on Wednesday, 18 March 2015 at 1700 UTC at: http://audio.icann.org/gnso/gnso-ingo-group-18mar15-en.mp3 On page: http://gnso.icann.org/en/group-activities/calendar#mar The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: http://gnso.icann.org/calendar/ Attendees: George Kirikos - Individual Petter Rindforth – IPC Phil Corwin – BC Val Sherman - IPC Jay Chapman – Individual Jim Bikoff – IPC Kathy Kleiman - NCUC Paul Keating - NCUC Kristine Dorrain- Individual Osvaldo Novoa - NCUC Apologies: David Maher - RySG Mason Cole – RySG ICANN staff: Mary Wong Steve Chan Nathalie Peregrine ** Please let me know if your name has been left off the list ** Mailing list archives:http://mm.icann.org/pipermail/gnso-igo-ingo-crp/ Wiki page: https://community.icann.org/x/97rhAg Thank you. Kind regards, Nathalie ------------------------------- Adobe Connect chat transcript for Wednesday, 18 March 2015: Nathalie Peregrine:Dear all, welcome to the IGO-INGO Curative Rights Protection PDP WG Meeting on the 18th March 2015 Jay Chapman:Hello, everyone. Petter Rindforth:Hello! George Kirikos:Hi everyone. Paul Keating:hello George Kirikos:Taking a few minutes to get to a live person on the dial-in. George Kirikos:Hi Paul. Jay Chapman:Hi George George Kirikos:Hey Jay. Paul Keating:i will be onlyh in chat most lilely George Kirikos:There is a number for Spain (looks free?) 800-300-053 George Kirikos:Code = IGO Osvaldo Novoa:Hello all George Kirikos:Hi Osvaldo. Mary Wong:@George, @Paul, thanks so much for your emails on the sovereign immunity issue. The co-chairs have not had the chance to go through the suggestions in detail, but rest assured that the conversation will continue on the list and no note will be sent out until the WG has fully reviewed the documents, as amended. Mary Wong:Everyone should have scrolling ability. Mary Wong:Note on Question 3: the reference to "this problem" refers to the sovereign immunity issue (the WG had an explanatory paragraph on this in our letter that is omitted from this consolidated document). Mary Wong:Similarly for Question 4: "this" means the cost issue. Petter Rindforth:Well it seems that will be some money left over for this ,-) Mary Wong:The discussion that Phil refers to at the GNSO Council level is for setting up a Cross Community Working Group to deliberate the issue of auction proceeds. As such, if one is established, it will likely be some time before any concrete recommendations are agreed on. George Kirikos:The Nominet DRS fees can be a lot lower than UDRP, in the event of no response. See:http://www.nominet.org.uk/disputes/resolving-domain-disputes/how-it-works George Kirikos:(just £200 + VAT for a summary decision) Kristine Dorrain-NAF:Nominet is subsidized by the UK Kristine Dorrain-NAF:And the community roundly rejected WIPO's proposal for a Summary Decision process I think...(dusting the cobwebs off my brain) George Kirikos:If complaints do receive some subsidy from ICANN, it should also subsidize the cost of a 3-person panel (i.e. if Respondent asks for the larger panel). Paul Keating:@ phil, Nominet is not funded by the UK governmentl Paul Keating:I agree with Jim. Paul Keating:@Phil, I think you are correct. It is not absoute. It is factyual specific. Hwo is the IGO using the asserted mark> If not related to their soverigne status then they should not argue about immunity. Paul Keating:@ hil, please see my email.on the proposed letter. Paul Keating:Thanks Jim good commments. Nathalie Peregrine:Kathy Kleiman has joined Paul Keating:Thanks Jim, good commments Paul Keating:@George, the issue of Sov. Imm is their waiver of any Sov imm question upon submission of UDRP complaint. Paul Keating:discovery, etc is an issue relevant to the local jurisdiction to whcih they have agreedbased on the MJ consent Kristine Dorrain-NAF:Side comment, the cost of discovery and cross examination would add significantly to attorneys fees... Paul Keating:sorry but that is not the only issue Phil. They can be liable for damages as shown in Parvi.org (130K) in damages). once they submit to jurisdiction they are subject to the rules of the local court and we cannot control those issues. Paul Keating:that is my hand raise. George Kirikos:Right, I don't actually want a new dispute policy....it's more of trying to get a sense of what aspects of the courts they're concerned about. Is it the damages aspect? (in which case the limited waiver solves things). Paul Keating:@phil - please look at chat George Kirikos:If they care about courts cross-examining them, or asking for discovery of documents, then that means they oppose having a really-in-depth and quality arbitration process. Paul Keating:fine with me re revision. Paul Keating:@mary, is the chat in these sessions included in the record> Paul Keating:@mary, we should have access to this historical information George Kirikos:The chats are archived to the mailing list. George Kirikos:e.g. scroll down in http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2015-March/000300.htmlfor last week's chat. Mary Wong:@Paul - yes, each public chat session is saved (as George has noted) and we publish them along with the recordings and transcript for each week on the WG wiki. Paul Keating:@mary, thank you. can you possibly assemble those as a packages and sent them to us all or at least a link so that we have them avaiable when we view the letter>? Mary Wong:@Paul, did you mean this specific chat or all the chats from all the WG calls? George Kirikos:Amusingly, even Switzerland (home to many IGOs) has a jurisdiction clause for Zurich, for .ch domains, see https://www.nic.ch/reg/cm/wcm-page/disputes/rules_v1.jsp (rule 12(c)(ii)) Paul Keating:agreed rea INGOS Paul Keating:agreed re already have standing but disagree that clarificadtnion is needed. Paul Keating:we need more datea and more research. Paul Keating:thanks Jim George Kirikos:Yes, more data on the extent of the problem, as it's never really been provided by the IGOs. Paul Keating:rea Paris Convention notation and no regisstration should be included in Clearning House. No. They shouldobtain registration. George Kirikos:Good point, Phil. Adding Article 6ter marks (the 3000+ or so of them, minus the logos) wouldn't be too hard to add to teh TMCH. George Kirikos:(although, a policy decision as to whether they *should* be added) Paul Keating:@ Mary, but we still need to respond to the question. George Kirikos:Some IGOs are very well funded, by the way, moreso than other complainants. Mary Wong:@Paul, yes - I meant only that our WG should not be making recommendations on how to resolve that outstanding issue. Kristine Dorrain-NAF:Petter is a panelist Paul Keating:not that I recall. George Kirikos:I think there was a concern about them providing input into the rules? Paul Keating:Lets reach out to WIJPO. George Kirikos:Isn't WIPO part of the IGOs small group? Kristine Dorrain-NAF:I agree, I think we decided Panelist input would be a possible problem Paul Keating:I think we should ask th e ADR providers. Mary Wong:@George, yes it is, and also an Observer to this WG so it follows our mailing list discussions. Mary Wong:Means eligibility, standing, identity verification, sov immunity George Kirikos:Authentication criteria might refer to the validity of claimed marks, i.e. checking against the Article 6ter DB? Mary Wong:@George, I think it was a general concept with something like TMCH authentication in mind George Kirikos:Thanks, Mary. Mary Wong:No worries! Mary Wong:Note that the text in red was added by the Non Commercial SG prior to adoption by the Council. George Kirikos:Theose last 3 points seem to be related to recommendations, i.e. if we decide a new policy/mechanism is needed, then those would be things to consider. Mary Wong:The staff view was that if the WG was to recommend either amending or developiing a new DRP, that it would be careful to include balancing factors to act as safeguards. George Kirikos:Is the Wiki accurate? I don't see the WIPO folks on the list as observers, hmm.https://community.icann.org/pages/viewpage.action?pageId=48347895 George Kirikos:(plus a bunch of people who've been pretty quiet) Mary Wong:Good spot, George - thank you! We will update the wiki accordingly. Kathy Kleiman:I think you summarized it well, Phil, tx you! George Kirikos:Was it only the Business Constituency that didn't send us input? George Kirikos:(or the registrars too?) Mary Wong:@George, Registrars, BC, NCSG, NCUC, NPOC George Kirikos:Oh, surprised that so many didn't respond. Mary Wong:And the other SO/ACs - ccNSO, ASO, RSSAC, ALAC, GAC. Mary Wong:Although the GAC did respond to say it will respond :) George Kirikos:hehehe George Kirikos:Better than complete silence, though. :-) Kristine Dorrain-NAF:LOL George Kirikos:Have a nice day/evening, everyone. Kristine Dorrain-NAF:Thanks Phil Osvaldo Novoa:By all Jay Chapman:Thanks, Phil. Goodbye everyone. Mary Wong:Thanks everybody! Kathy Kleiman:By All, tx you! Val Sherman:thanks all!

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Agenda and documents for WG call on Wednesday 18 March
by Mary Wong March 17, 2015

March 17, 2015

Dear all, We will be sending out a separate email with a draft document prepared by the WG co-chairs and staff for your review, pertaining to follow up with the IGO Small Group and the GAC on the sovereign immunity issue. In the meantime, and for the next WG call tomorrow, here is the proposed agenda: 1. Roll call/updates to SOI 2. Review input received from IPC and ISPCP, and determine follow up actions and/or responses if any 3. Review remaining Charter questions, with a view toward recommending to the GNSO Council any items that the WG believes inappropriate or untimely to cover for purposes of developing its specific recommendations in this PDP 4. Next steps/next meeting For agenda item #2, the IPC and ISPCP responses to our initial solicitation for feedback can be found here: https://community.icann.org/x/T5gQAw For agenda item #3, the WG Charter can be found here: https://community.icann.org/x/77rhAg Thanks and cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names & Numbers (ICANN) Telephone: +1 603 574 4892 Email: mary.wong(a)icann.org

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Two cases where IGOs filed trademark lawsuits in the USA
by George Kirikos March 12, 2015

March 12, 2015

Hi folks, To followup on our meeting today, I did some checking in the online PACER database of US court cases, to help determine whether the "myth" that IGOs never waive immunity from national court processes was true. PACER allows one to search by the "nature of the suit", so I limited my searches to category 840 (trademarks). After trying various names of parties, I found 2 different cases that are relevant. In 1994, The International Bank for Reconstruction and Development (i.e. The World Bank) filed suit in Delaware against "World Bank Limited" and won a default judgment. In 1995, the United Nations Children's Fund (i.e. UNICEF) filed suit in the Southern District of New York against "Art '95", and the matter concluded with a consent judgment. PDFs of the dockets for both cases are attached (the underlying complaints/responses weren't available online, presumably because of the age of the cases). I think these 2 examples help to shatter the myth, given that the IGOs actually *brought* the cases to the courts, as plaintiffs! Why could they not do the same in a domain name dispute? This goes to the entire purpose of this working group. The "problem" that IGOs claimed to have was the lack of a curative mechanism for alleged infringements of their names and acronyms by others. If the UDRP didn't exist, it's clear that their only alternative would be via the courts. The fact that IGOs have brought trademark cases to the courts on multiple occasions demonstrates that as a viable option, just like it is for any other complainant. The existence of the UDRP is not a replacement for the courts. It gives complainants an *additional* option. No one forces complainants to file a UDRP -- they could have instead filed in court (where they'd be subject to the relevant court jurisdiction). IGOs have said they can't use the UDRP -- we've already shown examples of IGOs filing UDRPs. Presumably they wanted to use the UDRP, to avoid having to go to court, where they'd be subject to the court's jurisdiction thus conflicting with their claimed immunity. Well, now we have cases where they've gone to court! In conclusion, these cases help illustrate that IGOs should be treated the same as everybody else, and that no "special" rules need to be created for them. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

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The Scope of IGO 'immunity'
by George Kirikos March 11, 2015

March 11, 2015

I had referenced a Supreme Court of Canada case in the chat during one of our calls, and it might be prudent to note some of the important points it made: http://www.canlii.org/en/ca/scc/doc/2013/2013scc66/2013scc66.html Note that this is from 2013, and thus is a good reflection of the state of the current law. Paragraphs 29-31 make an important distinction between immunities granted to states (discussed in paras 27-28) and those of international organizations: "[29] In the case of international organizations, unlike that of states, the prevailing view at present is that no rule of customary international law confers immunity on them. International organizations derive their existence from treaties, and the same holds true for their rights to immunities: H. Fox, The Law of State Immunity (2nd ed. 2008), at pp. 725-26. Such an organization must operate on the territory of a foreign state and through individuals who have nationality and is therefore vulnerable to interference, since it possesses neither territory nor a population of its own: Fox, at p. 724. This reality makes immunity essential to the efficient and independent functioning of international organizations. It also shapes the immunities and privileges that are granted to international organizations. Such immunities and privileges are created through a complex interplay of international agreements and the national law of host states. 30] International organizations vary greatly in size, sphere of activities and powers. This is reflected in the source and the scope of their immunities and privileges. For example, the Convention on the Privileges and Immunities of the United Nations, 1 U.N.T.S. 15, and the Convention on the Privileges and Immunities of the Specialized Agencies, 33 U.N.T.S. 261, contain detailed provisions conferring broad immunities and privileges on the United Nations and its agencies. In addition to international conventions granting uniform immunities and privileges that apply in all member states, the most important international organizations such as the United Nations and its agencies also negotiate exhaustive and detailed headquarters agreements with host countries: see, e.g., Headquarters Agreement between the Government of Canada and the International Civil Aviation Organization, Can. T.S. 1992 No. 7, and the Supplementary Agreements of 1999 and 2013. [31] In the case of smaller international organizations, each organization must enter into an agreement with the host state regarding the immunities to be enjoyed in that state’s territory. Such is the case for NAFO. Article II of the Convention provides that NAFO is to come to an agreement with the contracting party (i.e. Canada) regarding the immunities and privileges it will enjoy in the territory of that party. NAFO and Canada reached an agreement in this regard, and it is reflected in the NAFO Immunity Order." I think that's an important point. In the case where an IGO does not have an agreement with a certain state in regards to immunities within that state's territory, it is clear that no such immunity actually exists! In the case at hand, involving the Northwest Atlantic Fisheries Organization, the extent of the immunity depended on the interpretation of the phrase "“to such extent as may be required for the performance of its functions” (see paragraph 39). In other words, immunity is not in any manner "absolute", but is determined in a case-by-case basis. Paragraph 49 made this clear: "[49] In limiting these immunities and privileges to the extent required for NAFO to perform its functions, the Governor in Council did not grant NAFO the absolute immunity conferred on the United Nations in the Convention on the Privileges and Immunities of the United Nations: P. Sands and P. Klein, Bowett’s Law of International Institutions (6th ed. 2009), at p. 494. Rather, the Governor in Council granted NAFO a functional immunity, that is, the immunity required to enable NAFO to perform its functions without undue interference." as did paragraphs 52 and 53: "[52] In my view, this same approach should be taken in determining the scope of the immunity granted to NAFO in the NAFO Immunity Order. The drafters of the NAFO Immunity Order adopted a functional approach to immunity, as can be seen from the very words they chose for s. 3(1): “to such extent as may be required for the performance of its functions”. [53] It follows that NAFO’s autonomy to conduct its business and the actions it takes in performing its functions must be shielded from undue interference. What is necessary for the performance of NAFO’s functions, or what constitutes undue interference, must be determined on a case-by-case basis." The Supreme Court of Canada in this case (appeal of lower courts) went on to determine that a claim involving a separation indemnity could proceed: "[67] In sum, no compelling reason exists for finding that s. 3(1) of the NAFO Immunity Order applies to the appellant’s claim with respect to the separation indemnity. This claim should be allowed to proceed." Note that the Court did *not* allow the employment aspect of the claim to proceed: "[58] This result would flow from the very nature of the appellant’s legal proceedings. In his statement of claim, he alleges that the Executive Secretary “engaged in improper management practices”: A.R., vol. II, at p. 13. He also seeks punitive damages. In doing so, he is asking the Nova Scotia Supreme Court to pass judgment on NAFO’s management of its employees. That, in my view, would constitute interference with NAFO’s internal management, which goes directly to its autonomy." While the case-by-case determination might differ in respect to a domain name dispute, I would find it hard to believe that a Canadian court would find that a dispute over a certain domain name would rise to the threshold required to *interfere* with an IGO's operations or autonomy. As was pointed out previously, paragraph 56 noted that there's no immunity in Canada over commercial activity of an IGO. I draw this case to the working group's attention again as a counterpoint to the position of the "expert" and his answers. This was a 9-0 decision from the highest court in Canada, with no dissenting position. If one reviews the decision, it not only cited Canadian Statutes and Regulations, it also cited international treaties (including UN treaties) and various authors, so I believe this decision to be authoritative, and one which we can and should rely upon to inform our work. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

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Response from international law expert
by Mary Wong March 11, 2015

March 11, 2015

Dear WG members, We have received a response from Mr. Hans Corell, the international law expert to whom we had sent the list of questions on sovereign immunity, prepared in consultation with our WG co-chairs Petter and Phil. Mr. Corell is a former Swedish diplomat and was from 1994-2004 the Under-Secretary-General for Legal Affairs and Legal Counsel for the United Nations. He is presently an adviser to a number of international bodies, including ICANN and the International Bar Association, where he is the current Co-Chair of the Council of the Human Rights Institute. I attach a copy of his full CV to this email, but you can also see his professional biography and current appointments here: http://www.havc.se/PresentEngagements.htm and http://www.havc.se/res/SelectedMaterial/20140721shortbio.pdf. In order to try to gain an initial understanding of the scope of the international legal principle of sovereign immunity as it applies to IGOs, we provided Mr. Corell with some basic background information into our work and the reason for asking the specific questions we enclosed. We did not, however, go into detail about the progress and workings of the WG, including our interaction with the IGOs so you will see from his response that some of his comments are based on general rather than more specific information. You will see also that he has certain questions for the WG, which may be helpful avenues for follow up. As such, staff thought that the WG may wish to discuss both Mr. Corell¹s answers to the questions that were posed to him as well as possible follow-up action on the WG call this Wednesday. For instance, we could develop a subsequent set of questions that we can provide along with a note summarizing the IGOs¹ position on the matter, so that he can provide us with more detailed input. Please note that Petter and Phil have not yet had a chance to review Mr. Corell¹s response. Do note also that representatives of the UN legal counsel were participants in the original IGO-INGO PDP WG that preceded our work, and I believe may also be represented in the IGO ³small group² that sent us their January 205 response. As such, a further point for WG discussion may be how we follow up with the IGO ³small group² after having reviewed their and Mr. Corell¹s response. For completeness I attach also a copy of the initial note and questions that were sent to Mr. Corell. Thanks and cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names & Numbers (ICANN) Telephone: +1 603 574 4892 Email: mary.wong(a)icann.org

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MP3 IGO WG - Wednesday, 10 March 2015 at 1700 UTC
by Nathalie Peregrine March 11, 2015

March 11, 2015

Dear All, Please find the MP3 recording for IGO-INGO Access to Curative Rights Protection Mechanisms Working Group call on Wednesday, 10 March 2015 at 1700 UTC at:http://audio.icann.org/gnso/gnso-ingo-group-11mar15-en.mp3 On page: http://gnso.icann.org/en/group-activities/calendar#mar The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: http://gnso.icann.org/calendar/ Attendees: George Kirikos - Individual Petter Rindforth – IPC Phil Corwin – BC Val Sherman - IPC David Heasley - IPC Paul Tattersfiled –Individual Jay Chapman – Individual Jim Bikoff – IPC Kathy Kleiman - NCUC David Maher - RySG Imran Ahmed Shah – NCUC Gary Campbell – GAC Paul Keating - NCUC Apologies: Kristine Dorrain- Individual Mason Cole – RySG ICANN staff: Mary Wong Steve Chan Nathalie Peregrine ** Please let me know if your name has been left off the list ** Mailing list archives:http://mm.icann.org/pipermail/gnso-igo-ingo-crp/ Wiki page: https://community.icann.org/x/97rhAg Thank you. Kind regards, Nathalie ------------------------------- Adobe Connect chat transcript for Wednesday, 10 March 2015: Nathalie Peregrine:Dear all, welcome to the IGO-INGO Curative Rights Protection PDP WG Meeting on the 10th March 2015 George Kirikos:Hi everyone. Petter Rindforth:Hi George, thanks for your comments George Kirikos:Hi Petter. How are you today? val sherman:Hello everyone George Kirikos:Hi Val. How's it going? Mary Wong:Yes, thanks George, as always. Petter, if you don't mind, perhaps staff can explain why we first reached out to Mr Corell before the WG gets into the substance of the discussion? George Kirikos:Hi Mary. val sherman:Hi George! Doing well -- it's Wednesday:) George Kirikos:Hopefully the timechange didn't confuse people today. I wonder if anyone showed up an hour ago? Petter Rindforth:Please do, Mary. Mary Wong:@George, I hope not ... we didn't get any indication or worried emails so I'm thinking not! George Kirikos:lol Phil George Kirikos:Welcome Jay. Jay Chapman:Hi, George. Hello, everyone. Nathalie Peregrine:We have Jim Bikoff and David Maher on audio bridge only too George Kirikos:Hi Kathy. Kathy:Hi George - and All! val sherman:David Heasley also on audio bridge Nathalie Peregrine:Noted, thank you Val! Nathalie Peregrine:Gary Campbell has just joined the call Nathalie Peregrine:Imran Ahmed Shah has joined the call Mary Wong:@George, Sec 29 does say "other disputes of a private law character" which would cover situations other than contracts. George Kirikos:But you missed the last part, Mary, "to which the UN is a party." Mary Wong:Right, a party to a dispute or to a contract George Kirikos:We know this is an incorrect interpretation, given the UNIFEM case. George Kirikos:If that was the right interpretation, then they could simply compel them at present to undergo such an arbitration. Nathalie Peregrine:Paul Keating has joined the call Kathy:Someone in email mentioned it (George I think) but UN is of course registered as a trademark. Paul Keating:Sorry I am late. Kathy:In the US, it is registered multiple times as a design mark, but also as a text mark -- Reg. Serial No. 77273648 Paul Keating:Not really. I was counsel in Parvi.org and sued the City of Paris following a UDRP. The Texas court had no difficulty in granting a judgment in favor of the domain registrant. George Kirikos:WIPO's list of cases that went to court http://www.wipo.int/amc/en/domains/challenged/(not complete) George Kirikos:We know the World Bank brought a UDRP, etc. George Kirikos:(sorry for the coughing noise -- forgot to mute myself) Paul Keating:Pere, I am sorry but I completely disagree with his "conclusions" Immunity can be waived. This is clear from decades of cases in many jurisdicdtions. See in Texas teh case of Parvi.org George Kirikos:"On the contrary, their presence and their acronyms are so obvious that nobody can doubt the seriousness...." --- he's talking rainbows and unicorns here... George Kirikos:Do a Google search for "united nations scandals", and it's not always rainbows and unicorns. Paul Keating:Mary, Can we request funding from ICANN to hire competent counsel to give an opinion we can rely upon? Paul Keating:@Perre, why should we rely upon the IGOs to give us legal advice? George Kirikos:Are any of the US counsel here familiar with any US Supreme Court precedents, that discuss the scope of immunity, in the same manner as the Canadian Supreme Court case I referenced on the list? George Kirikos:I'm guessing it's very different from country to country, as the Supreme Court of Canada mentioned, as it depends on what immunities that nation granted (and there's no 'international law' in that regard). Mary Wong:@George, that's exactly it Paul Keating:Question: In teh context of a UDRP in which an IGO is the complainant, does the IGO's complaint and consent to a "Mutual Jurisdiction" act to waive the IGO's claims as to immunity? George Kirikos:If the GAC is asking us to *make* new law, then that really is beyond our scope. We're not a replacement for international treaties, etc. George Kirikos:Phil has his hand up. Paul Keating:This question arises ONLY when teh domain registrant files litigation or when the IGO is teh domain registrant and loses. George Kirikos:We talk about 'immunity' as if it's an absolute, which we know is not correct. George Kirikos:If an IGO has to defend a domain name dispute, it's not as though the courts will interfere with the IGO's mission, internal affairs, etc. Kathy: It would be good if the GAC's discussion on this issue could include not only Mason, but also our co-chairs (with notice to the whole of the WG) Mary Wong:@George, that too is true :) Modern int'l law tends to view sovereign immunity as a "restricted" rather than absolute concept, which means it is defined by national law recognition of the concept. George Kirikos:Perhaps we should start talking about 'functional immunity' (taken from the Supreme Court of Canada ruling), to narrow things further, instead of saying "sovereign immunity"? Jay Chapman:Phil, here's one of those - a Columbia Law Review article from October, 2010 (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1692856) provides background & guidance on a general S.I. principle in the US, namely, when a state actor voluntarily / proactively participates in conduct designed to deprive someone else of their property via litigation (“litigation conduct”), such conduct makes itself a party to a "cause," and thereby the state effectively waives S.I. (Referencing Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613, 620 (2002).) “Lapides thus rests on the idea that, although a bar on suing states is inherent in the Constitution, the advocates for state immunity did not intend for a state or an arm of the state to wield its immunity ‘to achieve unfair tactical advantages’.” Mary Wong:Should we get a small group of volunteers to work on the questions? Staff will start a draft but it does need WG input and sign off. Kathy:@Jay, interesting article. Who is the academic who wrote it? Tx! George Kirikos:It'd be nice if they were participating in the WG itself. Paul Keating:I Agree completely with Phil. Jay Chapman:@Kathy - Tejas N. Narechania Columbia University - Law School George Kirikos:Important point I noticed on page 4. David Maher (GNSO - RySG):a useful primer on US - foreign sovereign immunity at:http://www.dgslaw.com/images/materials/TMCN_PrimerForeignSovereignImmuni… Kathy:@Jay and mary: I wonder if Prof Narechania might be willing to help advise us? Mary Wong:@Jay, if it's the Narechania article you are citing, do note that it talks about state-federal relationships within the US (domestic) rathan than sov immunity as an international concept Mary Wong:Much of the US law review literature is about state-federal claims. Jay Chapman:Yes, Mary. I said "in the US." Should have said "within the US". Thank you George Kirikos:Are we going to finish the UDRP/URS comparison today, before we go? George Kirikos:(instead of finishing early) Paul Keating:@Mary, I do not read it as you do. It discusses the US Statute on soverign immunity in general Mary Wong:@Paul, thanks - yes it does and it's helpful to that extent. Mary Wong:There are US statutes specifically discussing sov imm Paul Keating:@Mary, in the US, sov. imm is per federal statute (FSIA) located at 28 USC §§ 1330 et seq. Philip Corwin:Thanks for the links, Jay and David. Good stuff. And thanks as always to George for all his finds. Mary Wong:There are several law review articles that discusss that statute - we can look again at them, of course. Jay Chapman:Yes, looking forward to reading the case Geoge linked and the primer David added. Jay Chapman:Thank you both George Kirikos:I didn't have any specific comments. George Kirikos:(on the URS/UDRP) Jay Chapman:@Kathy, seems like someone who might be able to help! Jay Chapman:(sorry, Kathy, was referring to Prof Narechania being someone who might be able to help.) Kathy:@Jay, great, that makes sense. Tx! Mary Wong:@Phil, yes - that's why the Council asked this WG to consider the issue (recognizing that UDRP is CP but URS is not) Mary Wong:@Jay @Kathy - what do you think we should ask Prof Narechania? I can reach out to him and know several faculty members at Columbia. George Kirikos:I think the Intellectual Property Constituency probably would agree that the scope of immunity is limited. George Kirikos:Otherwise, IGOs would be able to ask that a new dispute resolution procedure be created so that IGOs could take US TM holders to a a binding international arbitration. George Kirikos:(i.e. and not allow US TM-holders to defend their rights in US courts) Mary Wong:All, for background on why our WG was asked to do this, please see the Issue Report that set out our tasks. George Kirikos:Have a nice day, everybody. Kathy:That's nice comments from RySG! val sherman::) that's great Kathy:Bye All Philip Corwin:Bye all val sherman:Thanks All! Jay Chapman:Bye. Thank you!

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Agenda and documents for the WG call on Wednesday 11 March 2015
by Mary Wong March 11, 2015

March 11, 2015

Hello everyone, Here is the proposed agenda for the next WG call: 1. Roll call/updates to SOI 2. Review international law expert response and determine next steps on sovereign immunity issue (see document circulated on 9 March) 3. Follow up/wrap up on discussion about UDRP/URS differences 4. Next steps/next meeting Thanks and cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names & Numbers (ICANN) Telephone: +1 603 574 4892 Email: mary.wong(a)icann.org From: Mary Wong <mary.wong(a)icann.org> Date: Monday, March 9, 2015 at 19:19 To: <gnso-igo-ingo-crp(a)icann.org> Subject: Response from international law expert > Dear WG members, > > We have received a response from Mr. Hans Corell, the international law expert > to whom we had sent the list of questions on sovereign immunity, prepared in > consultation with our WG co-chairs Petter and Phil. Mr. Corell is a former > Swedish diplomat and was from 1994-2004 the Under-Secretary-General for Legal > Affairs and Legal Counsel for the United Nations. He is presently an adviser > to a number of international bodies, including ICANN and the International Bar > Association, where he is the current Co-Chair of the Council of the Human > Rights Institute. I attach a copy of his full CV to this email, but you can > also see his professional biography and current appointments here: > http://www.havc.se/PresentEngagements.htm and > http://www.havc.se/res/SelectedMaterial/20140721shortbio.pdf. > > In order to try to gain an initial understanding of the scope of the > international legal principle of sovereign immunity as it applies to IGOs, we > provided Mr. Corell with some basic background information into our work and > the reason for asking the specific questions we enclosed. We did not, however, > go into detail about the progress and workings of the WG, including our > interaction with the IGOs so you will see from his response that some of his > comments are based on general rather than more specific information. You will > see also that he has certain questions for the WG, which may be helpful > avenues for follow up. > > As such, staff thought that the WG may wish to discuss both Mr. Corell¹s > answers to the questions that were posed to him as well as possible follow-up > action on the WG call this Wednesday. For instance, we could develop a > subsequent set of questions that we can provide along with a note summarizing > the IGOs¹ position on the matter, so that he can provide us with more detailed > input. > > Please note that Petter and Phil have not yet had a chance to review Mr. > Corell¹s response. Do note also that representatives of the UN legal counsel > were participants in the original IGO-INGO PDP WG that preceded our work, and > I believe may also be represented in the IGO ³small group² that sent us their > January 205 response. As such, a further point for WG discussion may be how we > follow up with the IGO ³small group² after having reviewed their and Mr. > Corell¹s response. > > For completeness I attach also a copy of the initial note and questions that > were sent to Mr. Corell. > > Thanks and cheers > Mary > > Mary Wong > Senior Policy Director > Internet Corporation for Assigned Names & Numbers (ICANN) > Telephone: +1 603 574 4892 > Email: mary.wong(a)icann.org > > > > >

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