Agreed and further it is only an implicit waiver of jurisdictional immunity and as such it does not (attempt to) bind the IGOs to any implied waiver of immunity from execution.

Even before we get to that stage, the justifications for any immunity have not been articulated.

 

The IGOs are initiating the action through their own volition.

They are looking to intervene in a private contract.

I can not find another forum in any jurisdiction, on any matter (not just domain names), that would allow an IGO to initiate proceedings and subsequently claim immunity in any follow-on proceedings.

Absent UDRP there are two possible ways the immunity question could come before a court:

(a) A TM owner seeks to acquire a domain which an IGO has registered
(b) An IGO seeks to acquire a domain which a domain registrant has registered
 
In (a) the IGO would be entitled to raise an immunity defence
In (b) the IGO would be required to waive immunity for the court to consider the matter.

I appreciate this is a very precise legal point and even Prof. Swaine confused this in his reasoning* but we as a working group have no excuse.

Further the IGOs have failed to present any evidence that even if we build a system that gives them every name they ask for automatically it will still not solve the problem the IGOs are looking to solve.

 

So I have two questions:  

(a) If the IGOs are not “entitled to immunity” after initiating proceedings in any other forum why should they be in UDRP?

(b) If the changes are not going to have any impact on the problems the IGOs are looking to solve why should we even consider making a completely new process?

 

Yours sincerely,

 

 

Paul.

*In 3. Discussion (Page 8) Swaine says:

"The core question is whether an IGO is “entitled to immunity,” but the baseline assumptions may be disaggregated. An IGO’s immunity would be most clearly at issue if the IGO had not itself initiated any related judicial proceeding—since that would risk waiving any immunity to which it would be entitled, including to counterclaims18—and the UDPRP’s Mutual Jurisdiction provision were absent. This might be the case, for example, where a domain-name registrant has sought a declaratory judgment in relation to some actual or potential infringement by an IGO. Although that is not the scenario of principal concern here, imagining that scenario usefully isolates the question as to whether an IGO has a legitimate expectation that it would be entitled to immunity absent the UDRP and its concessions. If such immunity is minimal or uncertain, then any compromises required by the UDRP loom less large; if the IGO would otherwise be entitled to immunity, however, its potential sacrifice seems more substantial."