February 2016 - Gnso-igo-ingo-crp

Synopsis from Prof. Edward Swaine - WG call this week?
by Mary Wong March 1, 2016

March 1, 2016

Dear all, Please find attached the synopsis document from Professor Swaine that Phil referred to in his email update to our Working Group (below). As Phil mentioned, his and Petter’s plan is to use this as the basis for discussion during the WG meeting at ICANN55, which is currently scheduled for Wednesday 9 March. However, should you wish to hold a brief discussion this Wednesday (at our usual meeting time of 1700 UTC) to provide initial feedback on the attached synopsis as a preparatory step to the fuller discussion next week, please reply to this email accordingly. If a sufficient number of members indicate that they would like to meet this week as well, we will go ahead and schedule a call accordingly. Thanks and cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names and Numbers (ICANN) Email: mary.wong(a)icann.org Telephone: +1-603-5744889 From: <gnso-igo-ingo-crp-bounces(a)icann.org<mailto:gnso-igo-ingo-crp-bounces@icann.org>> on behalf of Phil Corwin <psc(a)vlaw-dc.com<mailto:psc@vlaw-dc.com>> Date: Saturday, February 20, 2016 at 12:20 To: George Kirikos <icann(a)leap.com<mailto:icann@leap.com>> Cc: "gnso-igo-ingo-crp(a)icann.org<mailto:gnso-igo-ingo-crp@icann.org>" <gnso-igo-ingo-crp(a)icann.org<mailto:gnso-igo-ingo-crp@icann.org>> Subject: Re: [Gnso-igo-ingo-crp] Any update on Swaine report? Dear IGO CRP WG Members: Here is a further update on the situation as regards Prof. Swaine’s legal research. Petter and I, along with Mary and Steve, engaged in a one hour call yesterday with Prof. Swaine in which we discussed our questions and comments regarding the current uncompleted draft report, as well as the needs of the WG in preparation for Marrakech. Prof. Swaine is not comfortable with having an incomplete document bearing his name in wider circulation, and we fully appreciate that viewpoint. In addition, due to his academic responsibilities for the remainder of this month, he does not believe he will be able to complete a final draft prior to a potential 3/2 WG call or our F2F meeting in Marrakech (which is currently scheduled to take place from 9-10:15 am on Wednesday, March 9). However, he did commit to provide our WG with a synopsis of his research to date in the next week to ten days, which will provide us a focus for an anticipated WG planning call on 3/2. The same document can be used to catalyze discussion in Marrakech – and we plan to make sure that GAC and IGO attendees are made aware that they are welcome to participate in our 3/9 session. We will then provide Prof. Swaine with feedback from those two sessions to help guide him in his completion of the report, which we now anticipate receiving in final form later in March. While we had all hoped to have a final report available prior to our Marrakech meeting, the agreed upon approach seems like the second best option and will at least provide us with a basis for discussion over the next few weeks. Please let us know if you have questions or comments. Best to all, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: Phil Corwin Sent: Wednesday, February 17, 2016 10:13 AM To: 'George Kirikos' Cc: gnso-igo-ingo-crp(a)icann.org<mailto:gnso-igo-ingo-crp@icann.org> Subject: RE: [Gnso-igo-ingo-crp] Any update on Swaine report? George: Thanks for your inquiry. Here's the state of play-- · Last week we received a draft from Prof. Swaine. The draft was incomplete in that it did not yet contain conclusions. It is quite comprehensive on the interface of sovereign immunity and IGOs and demonstrates that this area is not fully developed or uniform, that a great deal of discretion is left to individual nations to determine the scope of recognized immunity, and that some considerations argue for waiver in the UDRP context as being acceptable, while others may lead to a contrary conclusion. · Due to travel schedules, the first time that Petter and I had a chance to discuss the draft with ICANN staff was yesterday. We are seeking to schedule a call with Prof. Swaine later this week if at all possible to raise various questions and issues as well as to determine what his preliminary conclusions are.. · Our hope is to get a more complete draft distributed to all WG members as soon as possible, and certainly prior to the Marrakech meeting. Once we speak with Prof. Swaine we will schedule a WG call for either February 24 or March 2 (I depart for Marrakech on March 3) to prepare for our Marrakech meeting. · At our meeting in Marrakech, we intend to seek comments on the draft from all WG members, as well as from IGOs and GAC members. (Staff-do we as yet have a time and date for our WG meeting?) Following Marrakech we intend to move forward expeditiously on our work using the report as a basis for determining our course. Let me know if you have any additional questions at this time. Best regards, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey -----Original Message----- From: George Kirikos [mailto:icann@leap.com] Sent: Tuesday, February 16, 2016 4:33 PM To: Phil Corwin Cc: gnso-igo-ingo-crp(a)icann.org<mailto:gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] Any update on Swaine report? I just wanted to followup and see how things are progressing. If we don't get the draft Swaine report soon, then that means we're looking at sometime in March for our next teleconference? (i.e. there's no meeting tomorrow, and it wouldn't make sense to have a meeting next Wednesday unless the report was provided before the weekend, so folks can digest it and have informed comments/discussions). Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Tue, Jan 26, 2016 at 6:20 PM, Phil Corwin <psc(a)vlaw-dc.com<mailto:psc@vlaw-dc.com>> wrote: > Happy New Year, George. > > We have checked with Professor Swaine and are expecting a draft document very soon, possibly later this week. As soon as we receive it we will be back in touch with the WG. > > Best, Philip > > Philip S. Corwin, Founding Principal > Virtualaw LLC > 1155 F Street, NW > Suite 1050 > Washington, DC 20004 > 202-559-8597/Direct > 202-559-8750/Fax > 202-255-6172/cell > > Twitter: @VlawDC > > "Luck is the residue of design" -- Branch Rickey > > > -----Original Message----- > From: gnso-igo-ingo-crp-bounces(a)icann.org<mailto:gnso-igo-ingo-crp-bounces@icann.org> > [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of George > Kirikos > Sent: Tuesday, January 26, 2016 6:16 PM > To: gnso-igo-ingo-crp(a)icann.org<mailto:gnso-igo-ingo-crp@icann.org> > Subject: [Gnso-igo-ingo-crp] Any update on Swaine report? > > Hi folks, > > Happy New Year. > > It's been a while, so I just wanted to see if we have any news/updates regarding the Swaine report? > > Sincerely, > > George Kirikos > 416-588-0269 > http://www.leap.com/ > _______________________________________________ > Gnso-igo-ingo-crp mailing list > Gnso-igo-ingo-crp(a)icann.org<mailto:Gnso-igo-ingo-crp@icann.org> > https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp > > ----- > No virus found in this message. > Checked by AVG - www.avg.com<http://www.avg.com> > Version: 2016.0.7227 / Virus Database: 4489/11316 - Release Date: 01/03/16 Internal Virus Database is out of date. ----- No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7303 / Virus Database: 4530/11623 - Release Date: 02/14/16

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Waiver of Immunity -- express AND implied waivers
by George Kirikos Feb. 29, 2016

Feb. 29, 2016

Interestingly, the World Bank maintains a webpage at: http://ppp.worldbank.org/public-private-partnership/ppp-overview/practical-… where it explicitly discusses waiver of immunity, with some *suggested* language: "(1) To the extent that the [awarding authority] may be entitled in any state or jurisdiction to claim or benefit from any immunity (whether characterized as state immunity, sovereign immunity, act of state or otherwise) now or hereafter for itself or any of its property or assets (which it now has or may hereafter acquire) in respect of its obligations under this Agreement from service of process or other documents relating to proceedings, jurisdiction, suit, judgment, execution, attachment (whether before awarded or judgment, in aid or execution or otherwise) or legal process or to the extent that in any such jurisdiction there may be attributed to it or any of its property or assets such immunity (whether or not claimed), the [awarding authority] expressly, unconditionally and irrevocably agrees not to claim, invoke or permit to be invoked on it or its property or assets’ behalf or for it or its property or assets’ benefit and hereby expressly, unconditionally and irrevocably waives such immunity to the fullest extent permitted by the laws of such jurisdiction. (2) Subject to any applicable appellate rights, the [awarding authority] consents generally in respect of any proceedings to the giving of any relief or the issue of any process in connection with the proceedings including, without limitation, the making enforcement or execution against any property or assets whatsoever (irrespective of its use or intended use) of any order or judgment which may be made or given in the proceedings; and (3) The [awarding authority] irrevocably and unconditionally acknowledges that the execution, delivery and performance of this Agreement constitute private and commercial (and not public) acts of the [awarding authority]." That's the kind of language that can be incorporated into a future UDRP document (once that other PDP begins, where the UDRP undergoes reforms). Thanks World Bank! :-) The above is obvious an *explicit* waiver of immunity (like the UDRP has). However, there's also a concept (that this PDP hasn't discussed in depth before, I believe, but only in passing), of *implicit* waiver of immunity. There was a recent Canadian ruling in Ontario's courts that the World Bank had waived its immunity *implicitly* through its actions, requiring it to produce files in a criminal trial: https://bccla.org/our_work/world-bank-group-v-kevin-wallace-et-al/ "Justice Nordheimer of the Ontario Superior Court of Justice found that the World Bank had implicitly waived its immunity through this conduct." That matter has been appealed to the Supreme Court of Canada (no decision yet): http://www.scc-csc.ca/case-dossier/info/dock-regi-eng.aspx?cas=36315 The factum of the BCCLA in the Supreme Court appeal by the World Bank can be seen at: https://bccla.org/wp-content/uploads/2015/11/20151105-Factum-World-Bank-Gro… where it argues that the OECD Convention and ICCPR both support the recognition of "implied waiver". Of course, Argentina just settled a dispute with its international bond holders, http://www.bbc.com/news/business-35690833 where the NYC courts were explicitly given jurisdiction when Argentina raised money long ago. Domain name disputes, of course, are somewhat different in that IGOs have no contracts with domain name registrants (contracts are between registrars and registrants), but seek to intervene and disrupt those contracts as non-parties. I believe when IGOs actively intervene in this manner, they *implicitly* waive any immunity, regardless of whether the UDRP contains the explicit waiver of immunity via the language that currently exists. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

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Any update on Swaine report?
by George Kirikos Feb. 21, 2016

Feb. 21, 2016

Hi folks, Happy New Year. It's been a while, so I just wanted to see if we have any news/updates regarding the Swaine report? Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

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