Hi folks, On Wed, Jun 13, 2018 at 2:26 PM, Paul Keating <Paul@law.es> wrote:
Well it seems I was incorrect on saying Mary was not an attorney.
However, Mary – and no offense intended - you still got it completely wrong.
I hope this isn't perceived as an "attack", (it's just fact-seeking) but I've actually not seen the proof or direct statement that Mary is or isn't an "attorney". e.g. lots of people go to law school, but don't get licensed as a lawyer, pass the bar exam, (or don't keep up with the various regulatory requirements to continue being a licensed attorney). It's an offense to hold oneself out as an attorney in some places, when one isn't. Even if she is an attorney, it's clear lawyers or legal scholars can and do get it wrong, and can be on the losing side. In any court case where both sides are making arguments, obviously one lawyer out of two loses. Go watch CNN or FOX and you can see "legal analysis" of the latest events (pick any controversial topic you'd like), where you can and do get very disparate views from their legal guests/experts. Someone once told me "50% of law school graduates finished in the bottom half of their class"! :-) [a statistical truth!] (same goes for any other field of study) As for the Swaine report, I had raised questions about it back when we first got it, but he didn't seem to take the point into consideration (and it's the same point that Paul T is raising). https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2016-May/date.html https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2016-May/000518.html "1. Page 8 appears very confused. (both the paragraph above "Discussion", and the paragraph after it). The base scenario, in the absence of the UDRP, is that the IGO would file a complaint in court, thereby explicitly waiving any immunity, as they brought the action. The "imagined scenario" used in the paper is not helpful at all, because "legitimate expectations" absent the UDRP for an IGO are vary. "Immunity" is only a defense to an action, so of course the IGO will have "legitimate expectations" in defending a lawsuit that it did not initiate. However, "legitimate expectations" when an IGO *initiates* a dispute are quite different! The legitimate expectations are that if it initiates a court case, then it waives immunity. So, I believe the professor needs to go back and look at that, because the statement "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" is simply wrong, because of that asymmetry (between initiating vs defending a dispute). Thus, one can't *isolate* the question by focusing on one, because the answers are different due to that asymmetry. Indeed, if one reads on, this has important bearings on the paper. "If such immunity is minimal or uncertain, then any compromises required by the UDRP loom less large." Absent the UDRP, immunity is *non-existent* for the IGO that initiates a dispute in court. Thus, "any compromises required by the UDRP" in reality do "loom less large." This goes to the heart of everything (i.e. argues for the maintenance of the status quo). Indeed, if one jumps to page 23, the professor writes: "Beyond tolerating an infringement of its interests, an IGO might in principle elect instead to proceed first (or solely) to court. This is undoubtedly unappealing, because it would accomplish waiver by other means. Even so, that would be the alternative were the UDRP not to exist in its present form; it is not as though a preexisting or independent privilege were being conditioned or withdrawn. IGOs might also take some consolation from the advantages afforded them by the UDRP, which—but for cases in which judicial review is later sought by a losing registrant—affords them an efficient recourse to which they are not otherwise entitled." which again reinforces my position (i.e. that the legitimate expectation absent the UDRP is that the IGO *would* waive immunity when filing a complaint in court). So, combining pages 8 and 23, there's really only one valid conclusion, namely that "any compromises required by the UDRP" in reality do "loom less large." Anyhow, all this becomes moot eventually, as Option 1 of Recommendation 5 takes care of everything, and puts the parties back to the same positions they'd have been had the UDRP/URS not been initiated. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/