“3. Discussion (Bottom of page 8)
The core question is whether an IGO is “entitled to immunity,” but the baseline
assumptions may be disaggregated. The scope of IGO
immunity would most clearly be at issue if the Mutual Jurisdiction provision
were irrelevant and the IGO had not itself initiated judicial proceedings,
since that would risk waiving any immunity to which it may be entitled,
including to counterclaims. 20 This
might be the case, for example, if a domain-name registrant sought a
declaratory judgment against an IGO in relation to some actual or potential
infringement. 21 That scenario,
though not otherwise of concern here, does usefully isolate the question as to
whether an IGO has a legitimate expectation that it would be entitled to
immunity absent the UDRP. 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.
As explained in Part A, the answer depends. IGOs generally enjoy immunity under
international law, but different jurisdictions apply the law differently, and
even within the same jurisdiction different IGOs may be treated differently.
Part B then introduces the complication that any such immunity may be waived
through the Mutual Jurisdiction provision, and affording such waiver is not the
same thing as violating an IGO’s immunity. Part C then discusses alternative
ways to resolve the situation. … “
Hi folks,
After consulting with Jim Bikoff off-list, I've updated my spreadsheet
to remove the question marks (got those ones right, so they didn't
change from before), and fixed a typo [from "Does" to "Doesn't"] which
didn't actually change any of the analysis (that cell was Yellow, so I
assessed it correctly, just didn't notice the typo until now).
The web link updates automatically:
https://docs.google.com/spreadsheets/d/e/2PACX- 1vQgB2sY5AgaBZUHsHJJPLIsAwTFj- 0i3FsammN5q-iD1QCQ_ EMBC8LTzZ30TGvrf6Fw_ mUvlnHa9DV9/pubhtml
(every 5 minutes) but some might prefer the PDF.
Bedtime for me.
Sincerely,
George Kirikos
416-588-0269
http://www.leap.com/
On Mon, Jun 11, 2018 at 11:24 PM, George Kirikos <icann@leap.com> wrote:
> Apologies, I forgot to attach the PDF version of the Google sheets
> document. It's attached now.
>
> Sincerely,
>
> George Kirikos
> 416-588-0269
> http://www.leap.com/
>
>
>
> On Mon, Jun 11, 2018 at 11:05 PM, George Kirikos <icann@leap.com> wrote:
>> Hi folks,
>>
>> I've done my own analysis, given the problems already identified with
>> the ones done by Staff/Petter/Susan [hereafter just "Staff version"]
>> (which is at: https://mm.icann.org/pipermail/gnso-igo-ingo-crp/ 2018-June/001264.html
>> ).
>>
>> Reg Levy's own analysis is at:
>> https://mm.icann.org/pipermail/gnso-igo-ingo-crp/ 2018-June/001266.html
>> [although the version on the web is poorly formatted; I suggest if PDP
>> members want to view it more easily, they refer back to the one in
>> their mailbox; conceivably it can be turned into a PDF and then resent
>> to the list to be archives, so that others viewing the web archive can
>> read it more easily]
>>
>> A Google Sheets version is at:
>>
>> https://docs.google.com/spreadsheets/d/e/2PACX- 1vQgB2sY5AgaBZUHsHJJPLIsAwTFj- 0i3FsammN5q-iD1QCQ_ EMBC8LTzZ30TGvrf6Fw_ mUvlnHa9DV9/pubhtml
>> (updates every 5 minutes, if I make changes)
>>
>> and a PDF is attached that is captured as of just before this email. I
>> would suggest Staff add those both to the Wiki for tomorrow's call, so
>> they can be referenced.
>>
>> As you can see, I took more a nuanced view of the input, rather than a
>> black/white (Support/Do Not Support) that Petter/Susan/Staff did.
>> Reg's was also more nuanced, but only looked at the options in
>> relation to Recommendation #5 (I looked at everything). I also took
>> into account Mike Rodenbaugh's input (Reg didn't, that's why she has
>> 14 rows, and I have 15). I also took into account Paul Keating's input
>> from the May 10, 2018 phone call (where he opposed subsidies, i.e.
>> opposed recommendation #4). And I also captured emails up to now (Jim
>> Bikoff's apparent change of position is a bit confusing, so question
>> marks there). I also made inferences for Options #1 through #6 of
>> Recommendation 5 for Osvaldo and Crystal -- but left out any
>> inferences for Recommendations 1 through 4 when there was no direct
>> response for everyone]
>>
>> Anyhow, here's what my analysis suggests:
>>
>> A] Recommendation 1: (staff says "FULL CONSENSUS")
>>
>> I think full consensus is achievable, but the wording needs to be
>> slightly changed (i.e. see the comments of myself and Zak, echoed by
>> Nat/Jay), i.e. add the word "substantive". If we look at the text
>> which staff sent out today, they've already added the word
>> "Substantive", so I think we're all in sync on that (compare to
>> Petter's version sent out on Saturday night which had the original
>> text, which didn't include the word 'substantive').
>>
>> B] Recommendation 2: (staffs says "CONSENSUS")
>>
>> I think consensus is achievable, if we clarify the text. The text got
>> partially changed already (staff version of today, compared with
>> Petter's from Saturday), but as I noted earlier today:
>>
>> https://mm.icann.org/pipermail/gnso-igo-ingo-crp/ 2018-June/001267.html
>>
>> they only did half the changes.
>>
>> C] Recommendation 3: (staff says "FULL CONSENSUS")
>>
>> I've got this marked as "CONSENSUS", because I have Jim Bikoff marked
>> as no support, based on his email at:
>> https://mm.icann.org/pipermail/gnso-igo-ingo-crp/ 2018-June/001256.html
>>
>> D] Recommendation 4: (staff says "CONSENSUS")
>>
>> This is one the trickier ones. I think Consensus might be achievable,
>> if we clarify the text. But, it might end up being "STRONG SUPPORT
>> WITH SIGNIFICANT OPPOSITION". Right now, it's hard to tell. As I noted
>> above, I've captured Paul Keating's input on this issue, which he's
>> expressed on phone calls.
>>
>> E] Recommendation 5: Option #1 (staff says "CONSENSUS")
>>
>> I agree, it appears to be consensus (even with the implied opposition
>> of Osvaldo that I record, but differ on staff with; we agree on all
>> supporters, although I mark Mike Rodenbaugh as a "yellow" instead of a
>> "green" (would be ok with, rather than "support").
>>
>>
>> F] Recommendation 5: Option #2 (staff says "NO CONSENSUS / DIVERGENCE")
>>
>> I agree.
>>
>> G] Recommendation 5: Option #3 (staff says "MINORITY VIEW (WITH
>> CONSENUS AGAINST THIS OPTION)
>>
>> I agree.
>>
>> H] Recommendation 5: Option #4: (staff says "CONSENSUS")
>>
>> I think this one's unclear. I think it's either consensus (but a
>> smaller one than Option #1), OR it is Strong Support But Significant
>> Opposition. Unlike Staff, I base this on implied "No" from Crystal and
>> Osvaldo, and non-binary "conditional support" from Jim and Reg, as
>> well as the rank preferences from others in Option #1]
>>
>> I] Recommendation 5: Option #5: (staff says "NO CONSENSUS/DIVERGENCE")
>>
>> I agree.
>>
>> J] Recommendation 5: Option #6 (staff says ""STRONG SUPPORT BUT
>> SIGNIFICANT OPPOSITION")
>>
>> I've got it marked as No Consensus / Divergence, because I treat
>> Crystal/Osvaldo differently than staff (I infer an implied "No"). Also
>> I treat Reg differently too (non-binary).
>>
>> If anyone feels I've interpreted their input incorrectly, please let me know.
>>
>> As for moving forward (I still maintain we need more time), here are
>> some constructive suggestions:
>>
>> 1. "finalize" (subject to a big review before the final report, in
>> case someone missed something big) some of the text that has changed
>> in Recommendation #1 & #2 (which has been changed, implicitly there's
>> agreement, but we should get everyone explicitly on board)
>>
>> 2. Separate out Recommendation 4 (subsidies, etc.) for further
>> discussion. Either agree to change in the recommendation itself
>> (text), or have a more formal survey just separately on that issue
>> (since there were some non-responses)
>>
>> 3. For Recommendation 5, I'd suggest marking Options #2, #3 and #5 as
>> "dead", and concluded determined designations as what they were listed
>> at -- staff and I agree; although others might raise objections]
>>
>> 4. For Recommendation 5, Option #6, I would make a "friendly"
>> amendment for Paul T. Since Option #6 is really just the same
>> (essentially as mediation + Option #1), I would suggest that we
>> isolate things to break the linkage to Option #1 i.e. I would suggest
>> that we create an entirely separate "Recommendation 6" which *only*
>> had the mediation aspect. Then, folks can support/oppose the mediation
>> aspect by itself, without the implicit linkage to Option #1. .
>> Currently, staff doesn't have it reaching "Consensus" a notch below
>> that, and I have it even weaker.
>>
>> 5. For Recommendation 5, Options #1 and #4 -- here the idea of "rank"
>> really should come into play. Having both accepted might be considered
>> "weird". i.e. Option #1 gives a solution to the problem now, but then
>> Option #4 says "we're not going to solve the problem now, we're going
>> to send it to the RPM PDP").
>>
>> Those are my thoughts for now.
>>
>> Sincerely,
>>
>> George Kirikos
>> 416-588-0269
>> http://www.leap.com/
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