Staff directs your attention to those parts of the memo where Professor Swaine writes as follows (emphasis added): “ …the situation raises at least two distinct immunity issues. The first is whether, in principle, an IGO would enjoy immunity from judicial process with respect to name-related rights it might assert in the UDRP proceedings. *The answer depends on whether jurisdiction in which the case arises would apply an absolute, functional, or restrictive immunity approach to the IGO in question. That may be hard to predict*. Wrong – Immunity is only a defence where an IGO is a defendant NOT a claimant. In the initial claim the IGO is the claimant whether it be a UDRP claim or a judicial claim. In the United States, for example, unless an IGO benefits from broader treaty protections—as the United Nations, but not its specialized agencies, does, because the United States is only party to a treaty governing the former’s immunity—the question is addressed by the International Organizations Immunities Act (the IOIA), but some courts interpret the statute as establishing absolute immunity and others view it as establishing restrictive immunity only. The answer is a bit more straightforward elsewhere, and other states tend to favor either an absolute or a functional approach. *The choice among these approaches would be material.* Yes immunity is complex, very complex, but it is not relevant because the IGO is the initiating the claim. If an IGO is entitled to absolute immunity, it would in principle be protected from a suit of the kind in question, and probably under a functional approach as well—because an IGO’s protection of its name is likely to be deemed part of its functions. Immunity is less likely under a restrictive approach, which might regard this as more akin to trademark-related activity that is commercial in character. *The second, more relevant, question is whether—in light of an IGO’s assent to Mutual Jurisdiction, by virtue of its initiation of UDRP proceedings (or its registration of a domain name)—its immunity remains. Here, the more likely answer is that it would not.* Wrong, the mutual jurisdiction clause is a separate very high hurdle in a litigation strategy for an IGO. There is no immunity to remain – see above. IGOs are capable of waiving their immunity from suit, and if they do so, they may no longer interpose immunity as a defense if another party commences a judicial action falling within the scope of that waiver. The grant of Mutual Jurisdiction should establish such a waiver, just as it would for a state entity otherwise entitled to immunity. This waiver would be construed narrowly, but it would likely permit proceeding against an IGO in at least some domestic courts. *The overall answer, then, is contingent.* Wrong – no it isn’t contingent there is no immunity to defend – see above If there were no Mutual Jurisdiction clause, an IGO might be entitled to immunity to judicial process; if, on the other hand, the Mutual Jurisdiction clause were maintained, as in the status quo, the IGO’s immunity is less germane because it would have been waived. Equitable considerations might influence any judicial analysis … Accordingly, an IGO complainant will have consented to judicial proceedings if a losing respondent wishes to challenge a cancellation or —in a jurisdiction that the IGO will have selected, but from limited choices that the registrant can craft through its choice of registrar and its registering address … *How matters unfold from that point will depend on national law.*This is a truism but is not relevant because there is no immunity to defend *In short, the Mutual Jurisdiction concession means that certain IGOs will have agreed to the possibility of a judicial process, * That’s right - that’s what the mutual jurisidiction clause is for, That is how it should be. If you make an allegation and ask a forum to rule on it to you have to be prepared to defend the allegation including counterclaims *notwithstanding any immunity to which they otherwise would be entitled*.” Wrong – there isn’t any immunity to defend – see above As such, Professor Swaine seems to have acknowledged that, in many instances where a losing registrant files suit against a prevailing IGO in a national court, the court is likely to rule that the IGO will have waived its immunity. He also points out that this is *not* necessarily always the case as it may depend on the approach that national court takes toward the doctrine of IGO jurisdictional immunity. As staff has noted elsewhere, there is no single, universal, unified principle that determines the result across all national courts; and there is no single international treaty that applies to all IGOs and to which all states are party. Thus, Professor Swaine’s expert legal opinion seems to us to be saying that while it is likely that in many jurisdictions an IGO will *not* succeed in claiming immunity from jurisdiction, this is not to be assumed as a certainty in all jurisdictions globally. It may be a rare case that an IGO succeeds, but it is at least a possibility in a few jurisdictions. We trust this is sufficiently clear. If you want to challenge my proof you need show in the text which I have included again below for completeness why I am wrong not quote from the report which based on the errors I am alleging. Looking at what Professor Swaine said: *“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.”*I think we can all agree that; initiating proceedings waives immunity including counterclaims. *“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.” *I think we can all agree that; if a TM owner starts proceedings to acquire a domain which an IGO has registered then an IGO would be entitled to use jurisdictional immunity to prevent a hearing taking place. *“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”*I think we can all agree that; the working group has not and will not consider the case where a TM owner starts proceedings against an IGO. *Here’s the problem* What Professor Swaine has done is say well he’s isolated a situation where an IGO would be entitled to claim an immunity defence absent UDRP so now he’s good to go for the rest of his report on immunity. Wrong. Just because Professor Swaine has identified a situation where an IGO is entitled to claim an immunity defence doesn’t mean he can then apply it to other situations *.* *Proof*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. As the UDRP is an administrative procedure to help take less complex cases out of the judicial system if UDRP is to afford the same protections as any other forum then UDRP needs to take into account both scenarios. (a) A TM owner seeks to acquire a domain which an IGO has registered by bringing a UDRP (b) An IGO seeks to acquire a domain which a domain registrant has registered by bringing a UDRP *Let’s confirm what is happening with colours:* Blue = An immunity defence is good to go Red = An immunity defence is a no-no Applying the logic Professor Swaine has used we have (a) A TM owner seeks to acquire a domain which an IGO has registered by bringing a UDRP (b) An IGO seeks to acquire a domain which a domain registrant has registered by bringing a UDRP What Professor Swaine is asking the reader to accept is the right to an immunity defence can be applied to both (a) and (b) scenarios and this can not be right because Absent UDRP we have (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 So the correct position at UDRP is (a) A TM owner seeks to acquire a domain which an IGO has registered by bringing a UDRP (b) An IGO seeks to acquire a domain which a domain registrant has registered by bringing a UDRP Quite simply the IGOs are never entitled to jurisdictional immunity after initiating proceedings. On Fri, Jun 15, 2018 at 11:02 AM, Mary Wong <mary.wong@icann.org> wrote:

Hello again Paul and everyone,

Staff directs your attention to those parts of the memo where Professor Swaine writes as follows (emphasis added):

“ …the situation raises at least two distinct immunity issues. The first is whether, in principle, an IGO would enjoy immunity from judicial process with respect to name-related rights it might assert in the UDRP proceedings. *The answer depends on whether jurisdiction in which the case arises would apply an absolute, functional, or restrictive immunity approach to the IGO in question. That may be hard to predict*. In the United States, for example, unless an IGO benefits from broader treaty protections—as the United Nations, but not its specialized agencies, does, because the United States is only party to a treaty governing the former’s immunity—the question is addressed by the International Organizations Immunities Act (the IOIA), but some courts interpret the statute as establishing absolute immunity and others view it as establishing restrictive immunity only. The answer is a bit more straightforward elsewhere, and other states tend to favor either an absolute or a functional approach. *The choice among these approaches would be material.* If an IGO is entitled to absolute immunity, it would in principle be protected from a suit of the kind in question, and probably under a functional approach as well—because an IGO’s protection of its name is likely to be deemed part of its functions. Immunity is less likely under a restrictive approach, which might regard this as more akin to trademark-related activity that is commercial in character.

*The second, more relevant, question is whether—in light of an IGO’s assent to Mutual Jurisdiction, by virtue of its initiation of UDRP proceedings (or its registration of a domain name)—its immunity remains. Here, the more likely answer is that it would not.* IGOs are capable of waiving their immunity from suit, and if they do so, they may no longer interpose immunity as a defense if another party commences a judicial action falling within the scope of that waiver. The grant of Mutual Jurisdiction should establish such a waiver, just as it would for a state entity otherwise entitled to immunity. This waiver would be construed narrowly, but it would likely permit proceeding against an IGO in at least some domestic courts.

*The overall answer, then, is contingent.* If there were no Mutual Jurisdiction clause, an IGO might be entitled to immunity to judicial process; if, on the other hand, the Mutual Jurisdiction clause were maintained, as in the status quo, the IGO’s immunity is less germane because it would have been waived. Equitable considerations might influence any judicial analysis …

Accordingly, an IGO complainant will have consented to judicial proceedings if a losing respondent wishes to challenge a cancellation or

—in a jurisdiction that the IGO will have selected, but from limited choices that the registrant can craft through its choice of registrar and its registering address … *How matters unfold from that point will depend on national law.*

*In short, the Mutual Jurisdiction concession means that certain IGOs will have agreed to the possibility of a judicial process, notwithstanding any immunity to which they otherwise would be entitled*.”

As such, Professor Swaine seems to have acknowledged that, in many instances where a losing registrant files suit against a prevailing IGO in a national court, the court is likely to rule that the IGO will have waived its immunity. He also points out that this is *not* necessarily always the case as it may depend on the approach that national court takes toward the doctrine of IGO jurisdictional immunity. As staff has noted elsewhere, there is no single, universal, unified principle that determines the result across all national courts; and there is no single international treaty that applies to all IGOs and to which all states are party.

Thus, Professor Swaine’s expert legal opinion seems to us to be saying that while it is likely that in many jurisdictions an IGO will *not* succeed in claiming immunity from jurisdiction, this is not to be assumed as a certainty in all jurisdictions globally. It may be a rare case that an IGO succeeds, but it is at least a possibility in a few jurisdictions.

We trust this is sufficiently clear.

Best regards,

Mary & Steve

*From: *Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org> on behalf of Paul Tattersfield <gpmgroup@gmail.com> *Date: *Friday, June 15, 2018 at 17:17 *To: *"petter.rindforth@fenixlegal.eu" <petter.rindforth@fenixlegal.eu> *Cc: *"gnso-igo-ingo-." <gnso-igo-ingo-crp@icann.org> *Subject: *Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus

Dear Petter,

On Swaine I do not believe what you are proposing is acceptable. This isn’t some minor matter for a minority opinion Swaine underpins the whole of the working group’s final report. I have shown very clearly in plain language how Swaine introduces horrendously complex issues which have absolutely no relevance whatsoever to what the working group has been asked to consider.

Both Paul Keating & George Kirikos have both indicated they share my concerns that Swaine can never be considered correct on this matter and in the alternative no one has voiced any dissent to the expanded proof I outlined. The only person to offer any comments has been Mary and she did not address the core issue I was raising and has chosen so far not to dispute or comment further on the expanded proof. (For completeness Phillip said he was proud of Swaine)

You have chosen not to comment too. Do you also still personally believe what I am saying is wrong and that Swaine can possibly be correct in his findings?

If so please can you please explain to the working group how Swaine can possibly be correct because the report fails to adequately acknowledge or address the indisputable fact that IGOs automatically waive immunity every time they commence a legal proceeding?

Yours sincerely,

Paul.

Expanded proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001310.html (.pdf with colours)

Original proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001202.html (.pdf with colours)

On Fri, Jun 15, 2018 at 8:29 AM, Petter Rindforth < petter.rindforth@fenixlegal.eu> wrote:

Dear Working Group members,

In light of the need for us to complete our work, in my role as the Chair, I ask you all to now focus on the task at hand, which is to finalize agreement on the appropriate consensus levels for each recommendation. In this regard, please note the following:

(1) I have put the most current, likely consensus levels here in this message and will appreciate further feedback;

(2) we need now also to focus on discussing where we want to end up in relation to Option 1 and Option 4, which may be mutually incompatible; and

(3) where you have made a suggestion on any specific point/topic but it has not received support, I ask that you consider filing a Minority Statement now rather than continue to argue the point.

On consensus levels, and based on our call earlier this week and the more recent list discussions:

*Recommendation 1:* Full Consensus (with additional text in the rationale about why this recommendation was phrased to cover INGOs, and noting that IGOs are covered by the remaining recommendations which nevertheless do not require changing the UDRP or URS beyond what may be necessary to effectuate those additional recommendations – I note that this last caveat may of course not be necessary if the group reaches consensus on Option 4 versus Option 1, as we are currently discussing).

*Recommendation 2: *Consensus (with slight amendment to the recommendation text to reflect “trademark or service mark rights” where we mention “unregistered” rights).

*Recommendation 3:* Consensus

*Recommendation 4: *Strong Support but Significant Opposition (with additional text in the rationale to note that several members are strongly against subsidies of any sort).

*Recommendation 5/Options 1-6* (which we can renumber/title in the Final Report to avoid confusion):

Option 1 – Consensus or Strong Support but Significant Opposition

Option 2 – No Consensus/Divergence

Option 3 – Minority View (Consensus Against)

Option 4 – Consensus or Strong Support but Significant Opposition

Option 5 – No Consensus/Divergence

Option 6 – Strong Support but Significant Opposition

*On reconciling Options 1 & 4:*

If, from the above tentative consensus listing, the group agrees that either Option 1 or Option 4 has sufficient consensus (but not the other), there will not be a conflict. Please therefore weigh in with your thoughts on the current consensus levels for these two options. I have seen some informal notes from WG members that support both Option 1 and Option 4, clarifying that they prefer Option 1 before Option 4, but please make such statements/clarification again.

Similarly, if we end up with Strong Support but Significant Opposition for both, we can just transmit both to the Council without the need for further discussion (but possibly with text that can include implementation guidance for Option 1).

For Option 1 – this will require a change to the UDRP and URS, so if this is the final consensus position, staff will add draft text to the report with implementation guidance.

*On Minority Statements:*

1) As Susan suggested on the call, Paul Tattersfield may want to consider filing a Minority Statement in regard to the Swaine memo, as despite several emails on the topic over the last month or two and on the Working Group calls, there has not been much support to remove the memo from the report.

2) Similarly, those who support recommendations/options that end up as either No Consensus/Divergence or Minority View should consider preparing Minority Statements (as I believe Phil has already indicated he may do).

Thank you to all who are contributing to a productive discussion. I ask that we refrain from questioning others’ credibility or credentials, stop bringing up old threads and posts again, and focus on getting to the final consensus. We had a good, friendly and effective call this Tuesday – let us continue that way also online!

Best regards,

Petter

--

Petter Rindforth, LL M

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Dear Petter, The problem is the issue I am raising is overarching – I have shown very clearly why the IGOs are never entitled to immunity after they have chosen to initiate proceedings in ANY forum. I have also shown very precisely where Swaine went wrong in his reasoning. Petter wrote: *“And I cannot see that Prof Swaine clearly states that IGO’s have the right to refer to their immunity. Instead, he states several times that the fact that an IGO has accepted a URS or UDRP case, is also likely to be seen as a waiver of their immunity. This seems especially related to UN: …” *This misses the point the IGOs are choosing to initiate proceedings. Professor Swaine has analysed the scenario where an IGO is defending an initial action and then assumed incorrectly that any immunity rights enjoyed where an IGO is defending an action can be “transferred/allocated/applied” to the scenario where an IGO brings an action as the plaintiff (or claimant). When the IGO is the initial plaintiff (or claimant) it is NEVER entitled to jurisdictional immunity. I have responded to all of Mary’s points in this thread and in more detail to the other thread where Paul K. supported my concerns and David drew attention to the United Nations Convention on Jurisdictional Immunities of States and Their Property treaty. Further I have reached out to as many people as possible inviting them to refute my reasoning and so far no one has been able to show how I am even slightly wrong including people who have represented IGO interests. Please show me how my proof is anyway wrong…. Yours sincerely, Paul. Original proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001202.html (.pdf with colours) Expanded proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001310.html (.pdf with colours) On Sun, Jun 17, 2018 at 5:29 PM, Petter Rindforth < petter.rindforth@fenixlegal.eu> wrote:

Dear Paul and WG Members,

As you all know, we had a call on February 16, 201*6* to discuss Prof Swaine’s memo, and it was further discussed during 2016. I also tried to see from your (Paul) e-mails of December 2016 (especially of December 14, 2016), when we discussed the details of our Draft Initial Report that Mary had sent to our WG, but I could not find any specific note there by you on the report, other than suggestions to fix some typos in our DIR.

Prof Swaine’s memo and report is in fact a part of our work and report, to refer to. And I cannot see that Prof Swaine clearly states that IGO’s have the right to refer to their immunity. Instead, he states several times that the fact that an IGO has accepted a URS or UDRP case, is also likely to be seen as a waiver of their immunity. This seems especially related to UN:

“Article 2(2) of the General Convention, the UN’s absolute immunity from legal process (other than relative to execution) may be expressly waived in particular cases. National law may also resolve the matter. For example, the IOIA provides relevant IGOs with immunity (on the same terms as afforded states) “except to the extent that such organizations may expressly waive their immunity for the purpose of any proceedings or by the terms of any contract.”

What Prof Swaine however also points out, is the fact that all national law worldwide is not clear, and further that it is also up to each national court to decide to accept immunity or not, and especially IGO's that are not UN related has not the same exact position.

His conclusion was that the topic is not 100% clear (which ofcourse IGO's does not agree upon, as the same with you - however with two completely different views).

Option 3 has covered such possible situation, and made sure that also in (possible rare) cases where a national court accept immunity, the domain holder can at least have possibility to get the case decided by arbitration. (= *This was my short personal note, knowing that the majority of the WG does not agree with establishing such solution*).

*To summarize:*

We have Prof. Swaine’s report to refer to and that has for long time been a part of, and reference, related to our full report.

Paul, I appreciate your work with comments, and recommend that you prepare a Minority Statement in regard to the Swaine memo.

Also, a reminder to other WG members that support Options with no majority from the WG, please prepare your Minority Statements.

*Finally:*

Please focus on our Final Report and keep the suggestions within our WG mailing list. We are close to make a conclusion on each Recommendation and Option. It is better for us all to effectively conclude our work now in a friendly manner, and create our Final Report, that can then be further discussed by others.

Best regards, Petter

-- Petter Rindforth, LL M

Fenix Legal KB Stureplan 4c, 4tr 114 35 Stockholm Sweden Fax: +46(0)8-4631010 Direct phone: +46(0)702-369360 E-mail: petter.rindforth@fenixlegal.eu www.fenixlegal.eu

NOTICE This e-mail message is intended solely for the individual or individuals to whom it is addressed. It may contain confidential attorney-client privileged information and attorney work product. If the reader of this message is not the intended recipient, you are requested not to read, copy or distribute it or any of the information it contains. Please delete it immediately and notify us by return e-mail. Fenix Legal KB, Sweden, www.fenixlegal.eu Thank you

15 juni 2018 13:28:59 +02:00, skrev Paul Tattersfield <gpmgroup@gmail.com

...

:

Staff directs your attention to those parts of the memo where Professor Swaine writes as follows (emphasis added):

“ …the situation raises at least two distinct immunity issues. The first is whether, in principle, an IGO would enjoy immunity from judicial process with respect to name-related rights it might assert in the UDRP proceedings. *The answer depends on whether jurisdiction in which the case arises would apply an absolute, functional, or restrictive immunity approach to the IGO in question. That may be hard to predict*.

Wrong – Immunity is only a defence where an IGO is a defendant NOT a claimant. In the initial claim the IGO is the claimant whether it be a UDRP claim or a judicial claim.

In the United States, for example, unless an IGO benefits from broader treaty protections—as the United Nations, but not its specialized agencies, does, because the United States is only party to a treaty governing the former’s immunity—the question is addressed by the International Organizations Immunities Act (the IOIA), but some courts interpret the statute as establishing absolute immunity and others view it as establishing restrictive immunity only. The answer is a bit more straightforward elsewhere, and other states tend to favor either an absolute or a functional approach. *The choice among these approaches would be material.*

Yes immunity is complex, very complex, but it is not relevant because the IGO is the initiating the claim.

If an IGO is entitled to absolute immunity, it would in principle be protected from a suit of the kind in question, and probably under a functional approach as well—because an IGO’s protection of its name is likely to be deemed part of its functions. Immunity is less likely under a restrictive approach, which might regard this as more akin to trademark-related activity that is commercial in character.

*The second, more relevant, question is whether—in light of an IGO’s assent to Mutual Jurisdiction, by virtue of its initiation of UDRP proceedings (or its registration of a domain name)—its immunity remains. Here, the more likely answer is that it would not.*

Wrong, the mutual jurisdiction clause is a separate very high hurdle in a litigation strategy for an IGO. There is no immunity to remain – see above.

IGOs are capable of waiving their immunity from suit, and if they do so, they may no longer interpose immunity as a defense if another party commences a judicial action falling within the scope of that waiver. The grant of Mutual Jurisdiction should establish such a waiver, just as it would for a state entity otherwise entitled to immunity. This waiver would be construed narrowly, but it would likely permit proceeding against an IGO in at least some domestic courts.

*The overall answer, then, is contingent.*

Wrong – no it isn’t contingent there is no immunity to defend – see above

If there were no Mutual Jurisdiction clause, an IGO might be entitled to immunity to judicial process; if, on the other hand, the Mutual Jurisdiction clause were maintained, as in the status quo, the IGO’s immunity is less germane because it would have been waived. Equitable considerations might influence any judicial analysis …

Accordingly, an IGO complainant will have consented to judicial proceedings if a losing respondent wishes to challenge a cancellation or

—in a jurisdiction that the IGO will have selected, but from limited choices that the registrant can craft through its choice of registrar and its registering address …

*How matters unfold from that point will depend on national law.*This is a truism but is not relevant because there is no immunity to defend

*In short, the Mutual Jurisdiction concession means that certain IGOs will have agreed to the possibility of a judicial process, * That’s right - that’s what the mutual jurisidiction clause is for, That is how it should be. If you make an allegation and ask a forum to rule on it to you have to be prepared to defend the allegation including counterclaims

*notwithstanding any immunity to which they otherwise would be entitled*.”

Wrong – there isn’t any immunity to defend – see above

As such, Professor Swaine seems to have acknowledged that, in many instances where a losing registrant files suit against a prevailing IGO in a national court, the court is likely to rule that the IGO will have waived its immunity. He also points out that this is *not* necessarily always the case as it may depend on the approach that national court takes toward the doctrine of IGO jurisdictional immunity. As staff has noted elsewhere, there is no single, universal, unified principle that determines the result across all national courts; and there is no single international treaty that applies to all IGOs and to which all states are party.

Thus, Professor Swaine’s expert legal opinion seems to us to be saying that while it is likely that in many jurisdictions an IGO will *not* succeed in claiming immunity from jurisdiction, this is not to be assumed as a certainty in all jurisdictions globally. It may be a rare case that an IGO succeeds, but it is at least a possibility in a few jurisdictions.

We trust this is sufficiently clear.

If you want to challenge my proof you need show in the text which I have included again below for completeness why I am wrong not quote from the report which based on the errors I am alleging.

Looking at what Professor Swaine said:

*“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.”*I think we can all agree that; initiating proceedings waives immunity including counterclaims.

*“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.” *I think we can all agree that; if a TM owner starts proceedings to acquire a domain which an IGO has registered then an IGO would be entitled to use jurisdictional immunity to prevent a hearing taking place.

*“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”*I think we can all agree that; the working group has not and will not consider the case where a TM owner starts proceedings against an IGO.

*Here’s the problem*

What Professor Swaine has done is say well he’s isolated a situation where an IGO would be entitled to claim an immunity defence absent UDRP so now he’s good to go for the rest of his report on immunity.

Wrong.

Just because Professor Swaine has identified a situation where an IGO is entitled to claim an immunity defence doesn’t mean he can then apply it to other situations

*.*

*Proof*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.

As the UDRP is an administrative procedure to help take less complex cases out of the judicial system if UDRP is to afford the same protections as any other forum then UDRP needs to take into account both scenarios.

(a) A TM owner seeks to acquire a domain which an IGO has registered by bringing a UDRP (b) An IGO seeks to acquire a domain which a domain registrant has registered by bringing a UDRP

*Let’s confirm what is happening with colours:* Blue = An immunity defence is good to go Red = An immunity defence is a no-no

Applying the logic Professor Swaine has used we have

(a) A TM owner seeks to acquire a domain which an IGO has registered by bringing a UDRP (b) An IGO seeks to acquire a domain which a domain registrant has registered by bringing a UDRP

What Professor Swaine is asking the reader to accept is the right to an immunity defence can be applied to both (a) and (b) scenarios and this can not be right because

Absent UDRP we have

(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

So the correct position at UDRP is (a) A TM owner seeks to acquire a domain which an IGO has registered by bringing a UDRP (b) An IGO seeks to acquire a domain which a domain registrant has registered by bringing a UDRP

Quite simply the IGOs are never entitled to jurisdictional immunity after initiating proceedings.

On Fri, Jun 15, 2018 at 11:02 AM, Mary Wong <mary.wong@icann.org> wrote:

Hello again Paul and everyone,

Staff directs your attention to those parts of the memo where Professor Swaine writes as follows (emphasis added):

“ …the situation raises at least two distinct immunity issues. The first is whether, in principle, an IGO would enjoy immunity from judicial process with respect to name-related rights it might assert in the UDRP proceedings. *The answer depends on whether jurisdiction in which the case arises would apply an absolute, functional, or restrictive immunity approach to the IGO in question. That may be hard to predict*. In the United States, for example, unless an IGO benefits from broader treaty protections—as the United Nations, but not its specialized agencies, does, because the United States is only party to a treaty governing the former’s immunity—the question is addressed by the International Organizations Immunities Act (the IOIA), but some courts interpret the statute as establishing absolute immunity and others view it as establishing restrictive immunity only. The answer is a bit more straightforward elsewhere, and other states tend to favor either an absolute or a functional approach. *The choice among these approaches would be material.* If an IGO is entitled to absolute immunity, it would in principle be protected from a suit of the kind in question, and probably under a functional approach as well—because an IGO’s protection of its name is likely to be deemed part of its functions. Immunity is less likely under a restrictive approach, which might regard this as more akin to trademark-related activity that is commercial in character.

*The second, more relevant, question is whether—in light of an IGO’s assent to Mutual Jurisdiction, by virtue of its initiation of UDRP proceedings (or its registration of a domain name)—its immunity remains. Here, the more likely answer is that it would not.* IGOs are capable of waiving their immunity from suit, and if they do so, they may no longer interpose immunity as a defense if another party commences a judicial action falling within the scope of that waiver. The grant of Mutual Jurisdiction should establish such a waiver, just as it would for a state entity otherwise entitled to immunity. This waiver would be construed narrowly, but it would likely permit proceeding against an IGO in at least some domestic courts.

*The overall answer, then, is contingent.* If there were no Mutual Jurisdiction clause, an IGO might be entitled to immunity to judicial process; if, on the other hand, the Mutual Jurisdiction clause were maintained, as in the status quo, the IGO’s immunity is less germane because it would have been waived. Equitable considerations might influence any judicial analysis …

Accordingly, an IGO complainant will have consented to judicial proceedings if a losing respondent wishes to challenge a cancellation or

—in a jurisdiction that the IGO will have selected, but from limited choices that the registrant can craft through its choice of registrar and its registering address … *How matters unfold from that point will depend on national law.*

*In short, the Mutual Jurisdiction concession means that certain IGOs will have agreed to the possibility of a judicial process, notwithstanding any immunity to which they otherwise would be entitled*.”

As such, Professor Swaine seems to have acknowledged that, in many instances where a losing registrant files suit against a prevailing IGO in a national court, the court is likely to rule that the IGO will have waived its immunity. He also points out that this is *not* necessarily always the case as it may depend on the approach that national court takes toward the doctrine of IGO jurisdictional immunity. As staff has noted elsewhere, there is no single, universal, unified principle that determines the result across all national courts; and there is no single international treaty that applies to all IGOs and to which all states are party.

Thus, Professor Swaine’s expert legal opinion seems to us to be saying that while it is likely that in many jurisdictions an IGO will *not* succeed in claiming immunity from jurisdiction, this is not to be assumed as a certainty in all jurisdictions globally. It may be a rare case that an IGO succeeds, but it is at least a possibility in a few jurisdictions.

We trust this is sufficiently clear.

Best regards,

Mary & Steve

*From: *Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org> on behalf of Paul Tattersfield <gpmgroup@gmail.com> *Date: *Friday, June 15, 2018 at 17:17 *To: *"petter.rindforth@fenixlegal.eu" <petter.rindforth@fenixlegal.eu> *Cc: *"gnso-igo-ingo-." <gnso-igo-ingo-crp@icann.org> *Subject: *Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus

Dear Petter,

On Swaine I do not believe what you are proposing is acceptable. This isn’t some minor matter for a minority opinion Swaine underpins the whole of the working group’s final report. I have shown very clearly in plain language how Swaine introduces horrendously complex issues which have absolutely no relevance whatsoever to what the working group has been asked to consider.

Both Paul Keating & George Kirikos have both indicated they share my concerns that Swaine can never be considered correct on this matter and in the alternative no one has voiced any dissent to the expanded proof I outlined. The only person to offer any comments has been Mary and she did not address the core issue I was raising and has chosen so far not to dispute or comment further on the expanded proof. (For completeness Phillip said he was proud of Swaine)

You have chosen not to comment too. Do you also still personally believe what I am saying is wrong and that Swaine can possibly be correct in his findings?

If so please can you please explain to the working group how Swaine can possibly be correct because the report fails to adequately acknowledge or address the indisputable fact that IGOs automatically waive immunity every time they commence a legal proceeding?

Yours sincerely,

Paul.

Expanded proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001310.html (.pdf with colours)

Original proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001202.html (.pdf with colours)

On Fri, Jun 15, 2018 at 8:29 AM, Petter Rindforth < petter.rindforth@fenixlegal.eu> wrote:

Dear Working Group members,

In light of the need for us to complete our work, in my role as the Chair, I ask you all to now focus on the task at hand, which is to finalize agreement on the appropriate consensus levels for each recommendation. In this regard, please note the following:

(1) I have put the most current, likely consensus levels here in this message and will appreciate further feedback;

(2) we need now also to focus on discussing where we want to end up in relation to Option 1 and Option 4, which may be mutually incompatible; and

(3) where you have made a suggestion on any specific point/topic but it has not received support, I ask that you consider filing a Minority Statement now rather than continue to argue the point.

On consensus levels, and based on our call earlier this week and the more recent list discussions:

*Recommendation 1:* Full Consensus (with additional text in the rationale about why this recommendation was phrased to cover INGOs, and noting that IGOs are covered by the remaining recommendations which nevertheless do not require changing the UDRP or URS beyond what may be necessary to effectuate those additional recommendations – I note that this last caveat may of course not be necessary if the group reaches consensus on Option 4 versus Option 1, as we are currently discussing).

*Recommendation 2: *Consensus (with slight amendment to the recommendation text to reflect “trademark or service mark rights” where we mention “unregistered” rights).

*Recommendation 3:* Consensus

*Recommendation 4: *Strong Support but Significant Opposition (with additional text in the rationale to note that several members are strongly against subsidies of any sort).

*Recommendation 5/Options 1-6* (which we can renumber/title in the Final Report to avoid confusion):

Option 1 – Consensus or Strong Support but Significant Opposition

Option 2 – No Consensus/Divergence

Option 3 – Minority View (Consensus Against)

Option 4 – Consensus or Strong Support but Significant Opposition

Option 5 – No Consensus/Divergence

Option 6 – Strong Support but Significant Opposition

*On reconciling Options 1 & 4:*

If, from the above tentative consensus listing, the group agrees that either Option 1 or Option 4 has sufficient consensus (but not the other), there will not be a conflict. Please therefore weigh in with your thoughts on the current consensus levels for these two options. I have seen some informal notes from WG members that support both Option 1 and Option 4, clarifying that they prefer Option 1 before Option 4, but please make such statements/clarification again.

Similarly, if we end up with Strong Support but Significant Opposition for both, we can just transmit both to the Council without the need for further discussion (but possibly with text that can include implementation guidance for Option 1).

For Option 1 – this will require a change to the UDRP and URS, so if this is the final consensus position, staff will add draft text to the report with implementation guidance.

*On Minority Statements:*

1) As Susan suggested on the call, Paul Tattersfield may want to consider filing a Minority Statement in regard to the Swaine memo, as despite several emails on the topic over the last month or two and on the Working Group calls, there has not been much support to remove the memo from the report.

2) Similarly, those who support recommendations/options that end up as either No Consensus/Divergence or Minority View should consider preparing Minority Statements (as I believe Phil has already indicated he may do).

Thank you to all who are contributing to a productive discussion. I ask that we refrain from questioning others’ credibility or credentials, stop bringing up old threads and posts again, and focus on getting to the final consensus. We had a good, friendly and effective call this Tuesday – let us continue that way also online!

Best regards,

Petter

--

Petter Rindforth, LL M

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Thank you

_______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp

With all respect, in regard to your statement, “I have shown very clearly why the IGOs are never entitled to immunity after they have chosen to initiate proceedings in ANY forum”, Yes that’s right. and without even delving into the quality of your analysis, the fact that you believe an IGO would never succeed in an immunity defence in a judicial appeal from a UDRP filed by the losing registrant would not prevent any judge in any court from finding to the contrary and dismissing the case. Wrong - you are not understanding what I wrote and then attributing your own conclusion to me. Go read my proof and show me where I am wrong I don’t believe you can. The disagreement within this working group is over what should happen in the event of that rare but nonetheless possible scenario. Outside of the original co-chairs there is little disagreement, you should have the grace to respect that position. Prof. Swaine was asked to inform us as to how a court would deal with such an immunity claim and the likely response from plaintiff domain registrant that the IGO had waived its immunity by filing a UDRP with knowledge of the mutual jurisdiction clause. It is only the forum that makes the domain registrant a “plaintiff” on a claim that an IGO chose to initiate. That is the quirk of process. It is still the same principle matter. Whether the IGO chose to file a URDP or judicial proceedings the IGO is choosing to INTIATE proceedings. His memo discussed the different analytical approaches that courts employ as well as the interplay with other factors, such as national laws addressing sovereign immunity. As Petter noted, he concluded that many courts would determine that immunity had been waived, but that case dismissal by some courts could not be ruled out. The huge mistake Professor Swaine made was to analyze in great depth the scenario where an IGO is defending a claim and mistakenly assume that any rights to jurisdictional immunity there could be “transferred/applied” to the scenario where an IGO is initiating a claim. My proof pinpoints very precisely where and how he made that error in his reasoning on page 8 of his memo. The Swaine memo does not dictate any particular policy outcome within this WG, and it can likely be cited by those with differing views on the key issue before us. It informed our consideration of the questions before us and should be included within the final report as a reference point, and only as that. If you think anything in it is wrong you are free to include that in a minority statement. Swaine can never be relevant because the working group has not considered the case where an IGO is defending a UDRP brought against it by a TM owner. Swaine’s complexity confuses rather than clarifies and if you really must include it stick it in your minority report – it’s junk It’s quite simple Phillip go and read my proof (it’s less than a page) and if you believe it is wrong show me where it is wrong. I don’t believe you can that is why you are squandering everyone’s time (again). 1 Original proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001202.html (.pdf with colours) 2 Expanded proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001310.html (.pdf with colours) On Mon, Jun 18, 2018 at 1:30 AM, Corwin, Philip <pcorwin@verisign.com> wrote:

Paul:

With all respect, in regard to your statement, “I have shown very clearly why the IGOs are never entitled to immunity after they have chosen to initiate proceedings in ANY forum”, and without even delving into the quality of your analysis, the fact that you believe an IGO would never succeed in an immunity defence in a judicial appeal from a UDRP filed by the losing registrant would not prevent any judge in any court from finding to the contrary and dismissing the case. The disagreement within this working group is over what should happen in the event of that rare but nonetheless possible scenario.

Prof. Swaine was asked to inform us as to how a court would deal with such an immunity claim and the likely response from plaintiff domain registrant that the IGO had waived its immunity by filing a UDRP with knowledge of the mutual jurisdiction clause. His memo discussed the different analytical approaches that courts employ as well as the interplay with other factors, such as national laws addressing sovereign immunity. As Petter noted, he concluded that many courts would determine that immunity had been waived, but that case dismissal by some courts could not be ruled out.

The Swaine memo does not dictate any particular policy outcome within this WG, and it can likely be cited by those with differing views on the key issue before us. It informed our consideration of the questions before us and should be included within the final report as a reference point, and only as that. If you think anything in it is wrong you are free to include that in a minority statement.

Philip

Philip S. Corwin

Policy Counsel

VeriSign, Inc.

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703-948-4648/Direct

571-342-7489/Cell

*"Luck is the residue of design" -- Branch Rickey*

*From:* Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org] *On Behalf Of *Paul Tattersfield *Sent:* Sunday, June 17, 2018 2:55 PM *To:* petter.rindforth@fenixlegal.eu *Cc:* gnso-igo-ingo-. <gnso-igo-ingo-crp@icann.org> *Subject:* [EXTERNAL] Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus

Dear Petter,

The problem is the issue I am raising is overarching – I have shown very clearly why the IGOs are never entitled to immunity after they have chosen to initiate proceedings in ANY forum. I have also shown very precisely where Swaine went wrong in his reasoning.

Petter wrote: *“And I cannot see that Prof Swaine clearly states that IGO’s have the right to refer to their immunity. Instead, he states several times that the fact that an IGO has accepted a URS or UDRP case, is also likely to be seen as a waiver of their immunity. This seems especially related to UN: …”*

This misses the point the IGOs are choosing to initiate proceedings. Professor Swaine has analysed the scenario where an IGO is defending an initial action and then assumed incorrectly that any immunity rights enjoyed where an IGO is defending an action can be “transferred/allocated/applied” to the scenario where an IGO brings an action as the plaintiff (or claimant). When the IGO is the initial plaintiff (or claimant) it is NEVER entitled to jurisdictional immunity.

I have responded to all of Mary’s points in this thread and in more detail to the other thread where Paul K. supported my concerns and David drew attention to the United Nations Convention on Jurisdictional Immunities of States and Their Property treaty.

Further I have reached out to as many people as possible inviting them to refute my reasoning and so far no one has been able to show how I am even slightly wrong including people who have represented IGO interests.

Please show me how my proof is anyway wrong….

Yours sincerely,

Paul.

Original proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001202.html (.pdf with colours)

Expanded proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001310.html (.pdf with colours)

On Sun, Jun 17, 2018 at 5:29 PM, Petter Rindforth < petter.rindforth@fenixlegal.eu> wrote:

Dear Paul and WG Members,

As you all know, we had a call on February 16, 201*6* to discuss Prof Swaine’s memo, and it was further discussed during 2016. I also tried to see from your (Paul) e-mails of December 2016 (especially of December 14, 2016), when we discussed the details of our Draft Initial Report that Mary had sent to our WG, but I could not find any specific note there by you on the report, other than suggestions to fix some typos in our DIR.

Prof Swaine’s memo and report is in fact a part of our work and report, to refer to. And I cannot see that Prof Swaine clearly states that IGO’s have the right to refer to their immunity. Instead, he states several times that the fact that an IGO has accepted a URS or UDRP case, is also likely to be seen as a waiver of their immunity. This seems especially related to UN:

“Article 2(2) of the General Convention, the UN’s absolute immunity from legal process (other than relative to execution) may be expressly waived in particular cases. National law may also resolve the matter. For example, the IOIA provides relevant IGOs with immunity (on the same terms as afforded states) “except to the extent that such organizations may expressly waive their immunity for the purpose of any proceedings or by the terms of any contract.”

What Prof Swaine however also points out, is the fact that all national law worldwide is not clear, and further that it is also up to each national court to decide to accept immunity or not, and especially IGO's that are not UN related has not the same exact position.

His conclusion was that the topic is not 100% clear (which ofcourse IGO's does not agree upon, as the same with you - however with two completely different views).

Option 3 has covered such possible situation, and made sure that also in (possible rare) cases where a national court accept immunity, the domain holder can at least have possibility to get the case decided by arbitration. (= *This was my short personal note, knowing that the majority of the WG does not agree with establishing such solution*).

*To summarize:*

We have Prof. Swaine’s report to refer to and that has for long time been a part of, and reference, related to our full report.

Paul, I appreciate your work with comments, and recommend that you prepare a Minority Statement in regard to the Swaine memo.

Also, a reminder to other WG members that support Options with no majority from the WG, please prepare your Minority Statements.

*Finally:*

Please focus on our Final Report and keep the suggestions within our WG mailing list. We are close to make a conclusion on each Recommendation and Option. It is better for us all to effectively conclude our work now in a friendly manner, and create our Final Report, that can then be further discussed by others.

Best regards,

Petter

--

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Thank you

15 juni 2018 13:28:59 +02:00, skrev Paul Tattersfield <gpmgroup@gmail.com

...

:

Staff directs your attention to those parts of the memo where Professor Swaine writes as follows (emphasis added):

“ …the situation raises at least two distinct immunity issues. The first is whether, in principle, an IGO would enjoy immunity from judicial process with respect to name-related rights it might assert in the UDRP proceedings. *The answer depends on whether jurisdiction in which the case arises would apply an absolute, functional, or restrictive immunity approach to the IGO in question. That may be hard to predict*.

Wrong – Immunity is only a defence where an IGO is a defendant NOT a claimant. In the initial claim the IGO is the claimant whether it be a UDRP claim or a judicial claim.

In the United States, for example, unless an IGO benefits from broader treaty protections—as the United Nations, but not its specialized agencies, does, because the United States is only party to a treaty governing the former’s immunity—the question is addressed by the International Organizations Immunities Act (the IOIA), but some courts interpret the statute as establishing absolute immunity and others view it as establishing restrictive immunity only. The answer is a bit more straightforward elsewhere, and other states tend to favor either an absolute or a functional approach. *The choice among these approaches would be material.*

Yes immunity is complex, very complex, but it is not relevant because the IGO is the initiating the claim.

If an IGO is entitled to absolute immunity, it would in principle be protected from a suit of the kind in question, and probably under a functional approach as well—because an IGO’s protection of its name is likely to be deemed part of its functions. Immunity is less likely under a restrictive approach, which might regard this as more akin to trademark-related activity that is commercial in character.

*The second, more relevant, question is whether—in light of an IGO’s assent to Mutual Jurisdiction, by virtue of its initiation of UDRP proceedings (or its registration of a domain name)—its immunity remains. Here, the more likely answer is that it would not.*

Wrong, the mutual jurisdiction clause is a separate very high hurdle in a litigation strategy for an IGO. There is no immunity to remain – see above.

IGOs are capable of waiving their immunity from suit, and if they do so, they may no longer interpose immunity as a defense if another party commences a judicial action falling within the scope of that waiver. The grant of Mutual Jurisdiction should establish such a waiver, just as it would for a state entity otherwise entitled to immunity. This waiver would be construed narrowly, but it would likely permit proceeding against an IGO in at least some domestic courts.

*The overall answer, then, is contingent.*

Wrong – no it isn’t contingent there is no immunity to defend – see above

If there were no Mutual Jurisdiction clause, an IGO might be entitled to immunity to judicial process; if, on the other hand, the Mutual Jurisdiction clause were maintained, as in the status quo, the IGO’s immunity is less germane because it would have been waived. Equitable considerations might influence any judicial analysis …

Accordingly, an IGO complainant will have consented to judicial proceedings if a losing respondent wishes to challenge a cancellation or

—in a jurisdiction that the IGO will have selected, but from limited choices that the registrant can craft through its choice of registrar and its registering address …

*How matters unfold from that point will depend on national law. *This is a truism but is not relevant because there is no immunity to defend

*In short, the Mutual Jurisdiction concession means that certain IGOs will have agreed to the possibility of a judicial process, *

That’s right - that’s what the mutual jurisidiction clause is for, That is how it should be. If you make an allegation and ask a forum to rule on it to you have to be prepared to defend the allegation including counterclaims

* notwithstanding any immunity to which they otherwise would be entitled* .”

Wrong – there isn’t any immunity to defend – see above

As such, Professor Swaine seems to have acknowledged that, in many instances where a losing registrant files suit against a prevailing IGO in a national court, the court is likely to rule that the IGO will have waived its immunity. He also points out that this is *not* necessarily always the case as it may depend on the approach that national court takes toward the doctrine of IGO jurisdictional immunity. As staff has noted elsewhere, there is no single, universal, unified principle that determines the result across all national courts; and there is no single international treaty that applies to all IGOs and to which all states are party.

Thus, Professor Swaine’s expert legal opinion seems to us to be saying that while it is likely that in many jurisdictions an IGO will *not* succeed in claiming immunity from jurisdiction, this is not to be assumed as a certainty in all jurisdictions globally. It may be a rare case that an IGO succeeds, but it is at least a possibility in a few jurisdictions.

We trust this is sufficiently clear.

If you want to challenge my proof you need show in the text which I have included again below for completeness why I am wrong not quote from the report which based on the errors I am alleging.

Looking at what Professor Swaine said:

*“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**.”*

I think we can all agree that; initiating proceedings waives immunity including counterclaims.

*“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**.” *

I think we can all agree that; if a TM owner starts proceedings to acquire a domain which an IGO has registered then an IGO would be entitled to use jurisdictional immunity to prevent a hearing taking place.

*“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”*

I think we can all agree that; the working group has not and will not consider the case where a TM owner starts proceedings against an IGO.

*Here’s the problem*

What Professor Swaine has done is say well he’s isolated a situation where an IGO would be entitled to claim an immunity defence absent UDRP so now he’s good to go for the rest of his report on immunity.

Wrong.

Just because Professor Swaine has identified a situation where an IGO is entitled to claim an immunity defence doesn’t mean he can then apply it to other situations

*. *

*Proof *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.

As the UDRP is an administrative procedure to help take less complex cases out of the judicial system if UDRP is to afford the same protections as any other forum then UDRP needs to take into account both scenarios.

(a) A TM owner seeks to acquire a domain which an IGO has registered by bringing a UDRP (b) An IGO seeks to acquire a domain which a domain registrant has registered by bringing a UDRP

*Let’s confirm what is happening with colours:* Blue = An immunity defence is good to go Red = An immunity defence is a no-no

Applying the logic Professor Swaine has used we have

(a) A TM owner seeks to acquire a domain which an IGO has registered by bringing a UDRP (b) An IGO seeks to acquire a domain which a domain registrant has registered by bringing a UDRP

What Professor Swaine is asking the reader to accept is the right to an immunity defence can be applied to both (a) and (b) scenarios and this can not be right because

Absent UDRP we have

(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

So the correct position at UDRP is

(a) A TM owner seeks to acquire a domain which an IGO has registered by bringing a UDRP (b) An IGO seeks to acquire a domain which a domain registrant has registered by bringing a UDRP

Quite simply the IGOs are never entitled to jurisdictional immunity after initiating proceedings.

On Fri, Jun 15, 2018 at 11:02 AM, Mary Wong <mary.wong@icann.org> wrote:

Hello again Paul and everyone,

Staff directs your attention to those parts of the memo where Professor Swaine writes as follows (emphasis added):

“ …the situation raises at least two distinct immunity issues. The first is whether, in principle, an IGO would enjoy immunity from judicial process with respect to name-related rights it might assert in the UDRP proceedings. *The answer depends on whether jurisdiction in which the case arises would apply an absolute, functional, or restrictive immunity approach to the IGO in question. That may be hard to predict*. In the United States, for example, unless an IGO benefits from broader treaty protections—as the United Nations, but not its specialized agencies, does, because the United States is only party to a treaty governing the former’s immunity—the question is addressed by the International Organizations Immunities Act (the IOIA), but some courts interpret the statute as establishing absolute immunity and others view it as establishing restrictive immunity only. The answer is a bit more straightforward elsewhere, and other states tend to favor either an absolute or a functional approach. *The choice among these approaches would be material.* If an IGO is entitled to absolute immunity, it would in principle be protected from a suit of the kind in question, and probably under a functional approach as well—because an IGO’s protection of its name is likely to be deemed part of its functions. Immunity is less likely under a restrictive approach, which might regard this as more akin to trademark-related activity that is commercial in character.

*The second, more relevant, question is whether—in light of an IGO’s assent to Mutual Jurisdiction, by virtue of its initiation of UDRP proceedings (or its registration of a domain name)—its immunity remains. Here, the more likely answer is that it would not.* IGOs are capable of waiving their immunity from suit, and if they do so, they may no longer interpose immunity as a defense if another party commences a judicial action falling within the scope of that waiver. The grant of Mutual Jurisdiction should establish such a waiver, just as it would for a state entity otherwise entitled to immunity. This waiver would be construed narrowly, but it would likely permit proceeding against an IGO in at least some domestic courts.

*The overall answer, then, is contingent.* If there were no Mutual Jurisdiction clause, an IGO might be entitled to immunity to judicial process; if, on the other hand, the Mutual Jurisdiction clause were maintained, as in the status quo, the IGO’s immunity is less germane because it would have been waived. Equitable considerations might influence any judicial analysis …

Accordingly, an IGO complainant will have consented to judicial proceedings if a losing respondent wishes to challenge a cancellation or

—in a jurisdiction that the IGO will have selected, but from limited choices that the registrant can craft through its choice of registrar and its registering address … *How matters unfold from that point will depend on national law.*

*In short, the Mutual Jurisdiction concession means that certain IGOs will have agreed to the possibility of a judicial process, notwithstanding any immunity to which they otherwise would be entitled*.”

As such, Professor Swaine seems to have acknowledged that, in many instances where a losing registrant files suit against a prevailing IGO in a national court, the court is likely to rule that the IGO will have waived its immunity. He also points out that this is *not* necessarily always the case as it may depend on the approach that national court takes toward the doctrine of IGO jurisdictional immunity. As staff has noted elsewhere, there is no single, universal, unified principle that determines the result across all national courts; and there is no single international treaty that applies to all IGOs and to which all states are party.

Thus, Professor Swaine’s expert legal opinion seems to us to be saying that while it is likely that in many jurisdictions an IGO will *not* succeed in claiming immunity from jurisdiction, this is not to be assumed as a certainty in all jurisdictions globally. It may be a rare case that an IGO succeeds, but it is at least a possibility in a few jurisdictions.

We trust this is sufficiently clear.

Best regards,

Mary & Steve

*From: *Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org> on behalf of Paul Tattersfield <gpmgroup@gmail.com> *Date: *Friday, June 15, 2018 at 17:17 *To: *"petter.rindforth@fenixlegal.eu" <petter.rindforth@fenixlegal.eu> *Cc: *"gnso-igo-ingo-." <gnso-igo-ingo-crp@icann.org> *Subject: *Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus

Dear Petter,

On Swaine I do not believe what you are proposing is acceptable. This isn’t some minor matter for a minority opinion Swaine underpins the whole of the working group’s final report. I have shown very clearly in plain language how Swaine introduces horrendously complex issues which have absolutely no relevance whatsoever to what the working group has been asked to consider.

Both Paul Keating & George Kirikos have both indicated they share my concerns that Swaine can never be considered correct on this matter and in the alternative no one has voiced any dissent to the expanded proof I outlined. The only person to offer any comments has been Mary and she did not address the core issue I was raising and has chosen so far not to dispute or comment further on the expanded proof. (For completeness Phillip said he was proud of Swaine)

You have chosen not to comment too. Do you also still personally believe what I am saying is wrong and that Swaine can possibly be correct in his findings?

If so please can you please explain to the working group how Swaine can possibly be correct because the report fails to adequately acknowledge or address the indisputable fact that IGOs automatically waive immunity every time they commence a legal proceeding?

Yours sincerely,

Paul.

Expanded proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001310.html (.pdf with colours)

Original proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001202.html (.pdf with colours)

On Fri, Jun 15, 2018 at 8:29 AM, Petter Rindforth < petter.rindforth@fenixlegal.eu> wrote:

Dear Working Group members,

In light of the need for us to complete our work, in my role as the Chair, I ask you all to now focus on the task at hand, which is to finalize agreement on the appropriate consensus levels for each recommendation. In this regard, please note the following:

(1) I have put the most current, likely consensus levels here in this message and will appreciate further feedback;

(2) we need now also to focus on discussing where we want to end up in relation to Option 1 and Option 4, which may be mutually incompatible; and

(3) where you have made a suggestion on any specific point/topic but it has not received support, I ask that you consider filing a Minority Statement now rather than continue to argue the point.

On consensus levels, and based on our call earlier this week and the more recent list discussions:

*Recommendation 1:* Full Consensus (with additional text in the rationale about why this recommendation was phrased to cover INGOs, and noting that IGOs are covered by the remaining recommendations which nevertheless do not require changing the UDRP or URS beyond what may be necessary to effectuate those additional recommendations – I note that this last caveat may of course not be necessary if the group reaches consensus on Option 4 versus Option 1, as we are currently discussing).

*Recommendation 2: * Consensus (with slight amendment to the recommendation text to reflect “trademark or service mark rights” where we mention “unregistered” rights).

*Recommendation 3:* Consensus

*Recommendation 4: * Strong Support but Significant Opposition (with additional text in the rationale to note that several members are strongly against subsidies of any sort).

*Recommendation 5/Options 1-6* (which we can renumber/title in the Final Report to avoid confusion):

Option 1 – Consensus or Strong Support but Significant Opposition

Option 2 – No Consensus/Divergence

Option 3 – Minority View (Consensus Against)

Option 4 – Consensus or Strong Support but Significant Opposition

Option 5 – No Consensus/Divergence

Option 6 – Strong Support but Significant Opposition

*On reconciling Options 1 & 4:*

If, from the above tentative consensus listing, the group agrees that either Option 1 or Option 4 has sufficient consensus (but not the other), there will not be a conflict. Please therefore weigh in with your thoughts on the current consensus levels for these two options. I have seen some informal notes from WG members that support both Option 1 and Option 4, clarifying that they prefer Option 1 before Option 4, but please make such statements/clarification again.

Similarly, if we end up with Strong Support but Significant Opposition for both, we can just transmit both to the Council without the need for further discussion (but possibly with text that can include implementation guidance for Option 1).

For Option 1 – this will require a change to the UDRP and URS, so if this is the final consensus position, staff will add draft text to the report with implementation guidance.

*On Minority Statements:*

1) As Susan suggested on the call, Paul Tattersfield may want to consider filing a Minority Statement in regard to the Swaine memo, as despite several emails on the topic over the last month or two and on the Working Group calls, there has not been much support to remove the memo from the report.

2) Similarly, those who support recommendations/options that end up as either No Consensus/Divergence or Minority View should consider preparing Minority Statements (as I believe Phil has already indicated he may do).

Thank you to all who are contributing to a productive discussion. I ask that we refrain from questioning others’ credibility or credentials, stop bringing up old threads and posts again, and focus on getting to the final consensus. We had a good, friendly and effective call this Tuesday – let us continue that way also online!

Best regards,

Petter

--

Petter Rindforth, LL M

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Thank you

_______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp

You claim you have proven in a single page that a 25-page analysis of the issue of IGO immunity in the context of judicial appeal of a UDRP decision, written by a professor of and expert in international law, is wrong. I disagree. Its competence not office that matters, one of the big advantages of the multistakeholder model is it can allow The Emperor’s New Clothes situations to come to light that would otherwise remain clothed in expert opinion. It is not helpful to simply say I am wrong. You should at least try to show why what I have said is wrong, as I have clearly, concisely and precisely done with the Swaine errors. I’ll reply to each of the other points you raise, but it does rather play into a ruse to refuse to address the core issue and everyone then gets obstructed and deffered to anything but the question asked. Which then of course opens up the opportunity for a myriad of other tangential but ultimately fruitless lines of engagement thereby helping avoid the core issue for even longer. There is no such thing as proof in application of regulation and law to specific fact situations. The law is not black and white but many shades of grey. The law is not a math equation with one single answer that can be proven, or a science experiment that can be replicated to prove a theorem. That is why every modern judicial system has a supreme judicial body to resolve the inconsistencies between lower court decisions applying the same law to similar facts. And even then, the “correct” answer can be determined by a single vote, as evidenced by the many 5-4 split decisions of the US Supreme Court. We are here to make an existing framework more equitable not litigate it. What we are supposed to be doing is drafting the equivalence of statute. We need to be clear and concise, well intentioned and precise. As I’ve already pointed out, the Swaine memo does not dictate any particular policy recommendation outcome, and parts of it can be relied upon by proponents of option 1 who believe that the UDRP’s reference to mutual jurisdiction trumps all other considerations. I respectfully dissent from that position and support option 3 because I believe that it is important to restrain ICANN from attempting to curb the legal rights of any party to a UDRP, registrant or IGO. The problem is Swaine gives the impression it is relevant to what the working group has been asked to consider – whereas really, its irrelevant complexity confuses rather than clarifies. I also support option 3 because I believe it has some chance of becoming ICANN policy and resolving this matter, while I cannot envision option 1 ever being approved by the ICANN Board even if it is passed forward from Council. In your former role as co-chair this is called bias. This is one of the main reasons why this working group reached the point where it almost collapsed and we now have a significantly weaker final report which was predominantly drafted with the intention of supporting your preferred option. This is very bad because it fails to fully articulate the sound reasons behind the final consensus positions. The Swaine memo is an informed and nuanced discussion of the central issue before this WG. It should be retained in our Final Report to inform Council and the Board of the complex legal issues relevant to the matter of IGO access to CRP, both when considering this WG’s Final Report and later on -- when this issue is revisited after it becomes clear that we have not produced a policy option acceptable to the GAC and IGOs or capable of achieving Board approval. The multistakeholder working group model is about building and supporting consensus and it isn’t helpful when those leading a group will only contribute positively when it furthers their own agenda. We could easily have easily improved process to help IGOs & INGOs and at the same time improved it for registrants too, instead you chose to lead the working group on path to try and force through at all costs the ridiculous #3. - Very sad and not what the multistakeholder model was ever intended for. Prove me wrong show me why my proof is wrong :-) Original proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001202.html (.pdf with colours) Expanded proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001310.html (.pdf with colours) On Tue, Jun 19, 2018 at 1:58 PM, Corwin, Philip <pcorwin@verisign.com> wrote:

Paul:

You claim you have proven in a single page that a 25-page analysis of the issue of IGO immunity in the context of judicial appeal of a UDRP decision, written by a professor of and expert in international law, is wrong. I disagree.

There is no such thing as proof in application of regulation and law to specific fact situations. The law is not black and white but many shades of grey. The law is not a math equation with one single answer that can be proven, or a science experiment that can be replicated to prove a theorem. That is why every modern judicial system has a supreme judicial body to resolve the inconsistencies between lower court decisions applying the same law to similar facts. And even then, the “correct” answer can be determined by a single vote, as evidenced by the many 5-4 split decisions of the US Supreme Court.

As I’ve already pointed out, the Swaine memo does not dictate any particular policy recommendation outcome, and parts of it can be relied upon by proponents of option 1 who believe that the UDRP’s reference to mutual jurisdiction trumps all other considerations. I respectfully dissent from that position and support option 3 because I believe that it is important to restrain ICANN from attempting to curb the legal rights of any party to a UDRP, registrant or IGO. I also support option 3 because I believe it has some chance of becoming ICANN policy and resolving this matter, while I cannot envision option 1 ever being approved by the ICANN Board even if it is passed forward from Council.

The Swaine memo is an informed and nuanced discussion of the central issue before this WG. It should be retained in our Final Report to inform Council and the Board of the complex legal issues relevant to the matter of IGO access to CRP, both when considering this WG’s Final Report and later on -- when this issue is revisited after it becomes clear that we have not produced a policy option acceptable to the GAC and IGOs or capable of achieving Board approval.

Philip

Philip S. Corwin

Policy Counsel

VeriSign, Inc.

12061 Bluemont Way <https://maps.google.com/?q=12061+Bluemont+Way+%0D%0AReston,+VA+20190&entry=g...> Reston, VA 20190

703-948-4648/Direct

571-342-7489/Cell

*"Luck is the residue of design" -- Branch Rickey*

*From:* Paul Tattersfield [mailto:gpmgroup@gmail.com] *Sent:* Tuesday, June 19, 2018 3:35 AM *To:* Corwin, Philip <pcorwin@verisign.com> *Cc:* petter.rindforth@fenixlegal.eu; gnso-igo-ingo-crp@icann.org

*Subject:* [EXTERNAL] Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus

With all respect, in regard to your statement, “I have shown very clearly why the IGOs are never entitled to immunity after they have chosen to initiate proceedings in ANY forum”,

Yes that’s right.

and without even delving into the quality of your analysis, the fact that you believe an IGO would never succeed in an immunity defence in a judicial appeal from a UDRP filed by the losing registrant would not prevent any judge in any court from finding to the contrary and dismissing the case.

Wrong - you are not understanding what I wrote and then attributing your own conclusion to me. Go read my proof and show me where I am wrong I don’t believe you can.

The disagreement within this working group is over what should happen in the event of that rare but nonetheless possible scenario.

Outside of the original co-chairs there is little disagreement, you should have the grace to respect that position.

Prof. Swaine was asked to inform us as to how a court would deal with such an immunity claim and the likely response from plaintiff domain registrant that the IGO had waived its immunity by filing a UDRP with knowledge of the mutual jurisdiction clause.

It is only the forum that makes the domain registrant a “plaintiff” on a claim that an IGO chose to initiate. That is the quirk of process. It is still the same principle matter. Whether the IGO chose to file a URDP or judicial proceedings the IGO is choosing to INTIATE proceedings.

His memo discussed the different analytical approaches that courts employ as well as the interplay with other factors, such as national laws addressing sovereign immunity. As Petter noted, he concluded that many courts would determine that immunity had been waived, but that case dismissal by some courts could not be ruled out.

The huge mistake Professor Swaine made was to analyze in great depth the scenario where an IGO is defending a claim and mistakenly assume that any rights to jurisdictional immunity there could be “transferred/applied” to the scenario where an IGO is initiating a claim.

My proof pinpoints very precisely where and how he made that error in his reasoning on page 8 of his memo.

The Swaine memo does not dictate any particular policy outcome within this WG, and it can likely be cited by those with differing views on the key issue before us. It informed our consideration of the questions before us and should be included within the final report as a reference point, and only as that. If you think anything in it is wrong you are free to include that in a minority statement.

Swaine can never be relevant because the working group has not considered the case where an IGO is defending a UDRP brought against it by a TM owner. Swaine’s complexity confuses rather than clarifies and if you really must include it stick it in your minority report – it’s junk

It’s quite simple Phillip go and read my proof (it’s less than a page) and if you believe it is wrong show me where it is wrong. I don’t believe you can that is why you are squandering everyone’s time (again).

1 Original proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001202.html (.pdf with colours) 2 Expanded proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001310.html (.pdf with colours)

On Mon, Jun 18, 2018 at 1:30 AM, Corwin, Philip <pcorwin@verisign.com> wrote:

Paul:

With all respect, in regard to your statement, “I have shown very clearly why the IGOs are never entitled to immunity after they have chosen to initiate proceedings in ANY forum”, and without even delving into the quality of your analysis, the fact that you believe an IGO would never succeed in an immunity defence in a judicial appeal from a UDRP filed by the losing registrant would not prevent any judge in any court from finding to the contrary and dismissing the case. The disagreement within this working group is over what should happen in the event of that rare but nonetheless possible scenario.

Prof. Swaine was asked to inform us as to how a court would deal with such an immunity claim and the likely response from plaintiff domain registrant that the IGO had waived its immunity by filing a UDRP with knowledge of the mutual jurisdiction clause. His memo discussed the different analytical approaches that courts employ as well as the interplay with other factors, such as national laws addressing sovereign immunity. As Petter noted, he concluded that many courts would determine that immunity had been waived, but that case dismissal by some courts could not be ruled out.

The Swaine memo does not dictate any particular policy outcome within this WG, and it can likely be cited by those with differing views on the key issue before us. It informed our consideration of the questions before us and should be included within the final report as a reference point, and only as that. If you think anything in it is wrong you are free to include that in a minority statement.

Philip

Philip S. Corwin

Policy Counsel

VeriSign, Inc.

12061 Bluemont Way <https://maps.google.com/?q=12061+Bluemont+Way+%0D%0AReston,+VA+20190&entry=g...> Reston, VA 20190

703-948-4648/Direct

571-342-7489/Cell

*"Luck is the residue of design" -- Branch Rickey*

*From:* Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org] *On Behalf Of *Paul Tattersfield *Sent:* Sunday, June 17, 2018 2:55 PM *To:* petter.rindforth@fenixlegal.eu *Cc:* gnso-igo-ingo-. <gnso-igo-ingo-crp@icann.org> *Subject:* [EXTERNAL] Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus

Dear Petter,

The problem is the issue I am raising is overarching – I have shown very clearly why the IGOs are never entitled to immunity after they have chosen to initiate proceedings in ANY forum. I have also shown very precisely where Swaine went wrong in his reasoning.

Petter wrote: *“And I cannot see that Prof Swaine clearly states that IGO’s have the right to refer to their immunity. Instead, he states several times that the fact that an IGO has accepted a URS or UDRP case, is also likely to be seen as a waiver of their immunity. This seems especially related to UN: …”*

This misses the point the IGOs are choosing to initiate proceedings. Professor Swaine has analysed the scenario where an IGO is defending an initial action and then assumed incorrectly that any immunity rights enjoyed where an IGO is defending an action can be “transferred/allocated/applied” to the scenario where an IGO brings an action as the plaintiff (or claimant). When the IGO is the initial plaintiff (or claimant) it is NEVER entitled to jurisdictional immunity.

I have responded to all of Mary’s points in this thread and in more detail to the other thread where Paul K. supported my concerns and David drew attention to the United Nations Convention on Jurisdictional Immunities of States and Their Property treaty.

Further I have reached out to as many people as possible inviting them to refute my reasoning and so far no one has been able to show how I am even slightly wrong including people who have represented IGO interests.

Please show me how my proof is anyway wrong….

Yours sincerely,

Paul.

Original proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001202.html (.pdf with colours)

Expanded proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001310.html (.pdf with colours)

On Sun, Jun 17, 2018 at 5:29 PM, Petter Rindforth < petter.rindforth@fenixlegal.eu> wrote:

Dear Paul and WG Members,

As you all know, we had a call on February 16, 201*6* to discuss Prof Swaine’s memo, and it was further discussed during 2016. I also tried to see from your (Paul) e-mails of December 2016 (especially of December 14, 2016), when we discussed the details of our Draft Initial Report that Mary had sent to our WG, but I could not find any specific note there by you on the report, other than suggestions to fix some typos in our DIR.

Prof Swaine’s memo and report is in fact a part of our work and report, to refer to. And I cannot see that Prof Swaine clearly states that IGO’s have the right to refer to their immunity. Instead, he states several times that the fact that an IGO has accepted a URS or UDRP case, is also likely to be seen as a waiver of their immunity. This seems especially related to UN:

“Article 2(2) of the General Convention, the UN’s absolute immunity from legal process (other than relative to execution) may be expressly waived in particular cases. National law may also resolve the matter. For example, the IOIA provides relevant IGOs with immunity (on the same terms as afforded states) “except to the extent that such organizations may expressly waive their immunity for the purpose of any proceedings or by the terms of any contract.”

What Prof Swaine however also points out, is the fact that all national law worldwide is not clear, and further that it is also up to each national court to decide to accept immunity or not, and especially IGO's that are not UN related has not the same exact position.

His conclusion was that the topic is not 100% clear (which ofcourse IGO's does not agree upon, as the same with you - however with two completely different views).

Option 3 has covered such possible situation, and made sure that also in (possible rare) cases where a national court accept immunity, the domain holder can at least have possibility to get the case decided by arbitration. (= *This was my short personal note, knowing that the majority of the WG does not agree with establishing such solution*).

*To summarize:*

We have Prof. Swaine’s report to refer to and that has for long time been a part of, and reference, related to our full report.

Paul, I appreciate your work with comments, and recommend that you prepare a Minority Statement in regard to the Swaine memo.

Also, a reminder to other WG members that support Options with no majority from the WG, please prepare your Minority Statements.

*Finally:*

Please focus on our Final Report and keep the suggestions within our WG mailing list. We are close to make a conclusion on each Recommendation and Option. It is better for us all to effectively conclude our work now in a friendly manner, and create our Final Report, that can then be further discussed by others.

Best regards,

Petter

--

Petter Rindforth, LL M

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Thank you

15 juni 2018 13:28:59 +02:00, skrev Paul Tattersfield <gpmgroup@gmail.com

...

:

Staff directs your attention to those parts of the memo where Professor Swaine writes as follows (emphasis added):

“ …the situation raises at least two distinct immunity issues. The first is whether, in principle, an IGO would enjoy immunity from judicial process with respect to name-related rights it might assert in the UDRP proceedings. *The answer depends on whether jurisdiction in which the case arises would apply an absolute, functional, or restrictive immunity approach to the IGO in question. That may be hard to predict*.

Wrong – Immunity is only a defence where an IGO is a defendant NOT a claimant. In the initial claim the IGO is the claimant whether it be a UDRP claim or a judicial claim.

In the United States, for example, unless an IGO benefits from broader treaty protections—as the United Nations, but not its specialized agencies, does, because the United States is only party to a treaty governing the former’s immunity—the question is addressed by the International Organizations Immunities Act (the IOIA), but some courts interpret the statute as establishing absolute immunity and others view it as establishing restrictive immunity only. The answer is a bit more straightforward elsewhere, and other states tend to favor either an absolute or a functional approach. *The choice among these approaches would be material.*

Yes immunity is complex, very complex, but it is not relevant because the IGO is the initiating the claim.

If an IGO is entitled to absolute immunity, it would in principle be protected from a suit of the kind in question, and probably under a functional approach as well—because an IGO’s protection of its name is likely to be deemed part of its functions. Immunity is less likely under a restrictive approach, which might regard this as more akin to trademark-related activity that is commercial in character.

*The second, more relevant, question is whether—in light of an IGO’s assent to Mutual Jurisdiction, by virtue of its initiation of UDRP proceedings (or its registration of a domain name)—its immunity remains. Here, the more likely answer is that it would not.*

Wrong, the mutual jurisdiction clause is a separate very high hurdle in a litigation strategy for an IGO. There is no immunity to remain – see above.

IGOs are capable of waiving their immunity from suit, and if they do so, they may no longer interpose immunity as a defense if another party commences a judicial action falling within the scope of that waiver. The grant of Mutual Jurisdiction should establish such a waiver, just as it would for a state entity otherwise entitled to immunity. This waiver would be construed narrowly, but it would likely permit proceeding against an IGO in at least some domestic courts.

*The overall answer, then, is contingent.*

Wrong – no it isn’t contingent there is no immunity to defend – see above

If there were no Mutual Jurisdiction clause, an IGO might be entitled to immunity to judicial process; if, on the other hand, the Mutual Jurisdiction clause were maintained, as in the status quo, the IGO’s immunity is less germane because it would have been waived. Equitable considerations might influence any judicial analysis …

Accordingly, an IGO complainant will have consented to judicial proceedings if a losing respondent wishes to challenge a cancellation or

—in a jurisdiction that the IGO will have selected, but from limited choices that the registrant can craft through its choice of registrar and its registering address …

*How matters unfold from that point will depend on national law. *This is a truism but is not relevant because there is no immunity to defend

*In short, the Mutual Jurisdiction concession means that certain IGOs will have agreed to the possibility of a judicial process, *

That’s right - that’s what the mutual jurisidiction clause is for, That is how it should be. If you make an allegation and ask a forum to rule on it to you have to be prepared to defend the allegation including counterclaims

* notwithstanding any immunity to which they otherwise would be entitled* .”

Wrong – there isn’t any immunity to defend – see above

As such, Professor Swaine seems to have acknowledged that, in many instances where a losing registrant files suit against a prevailing IGO in a national court, the court is likely to rule that the IGO will have waived its immunity. He also points out that this is *not* necessarily always the case as it may depend on the approach that national court takes toward the doctrine of IGO jurisdictional immunity. As staff has noted elsewhere, there is no single, universal, unified principle that determines the result across all national courts; and there is no single international treaty that applies to all IGOs and to which all states are party.

Thus, Professor Swaine’s expert legal opinion seems to us to be saying that while it is likely that in many jurisdictions an IGO will *not* succeed in claiming immunity from jurisdiction, this is not to be assumed as a certainty in all jurisdictions globally. It may be a rare case that an IGO succeeds, but it is at least a possibility in a few jurisdictions.

We trust this is sufficiently clear.

If you want to challenge my proof you need show in the text which I have included again below for completeness why I am wrong not quote from the report which based on the errors I am alleging.

Looking at what Professor Swaine said:

*“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**.”*

I think we can all agree that; initiating proceedings waives immunity including counterclaims.

*“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**.” *

I think we can all agree that; if a TM owner starts proceedings to acquire a domain which an IGO has registered then an IGO would be entitled to use jurisdictional immunity to prevent a hearing taking place.

*“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”*

I think we can all agree that; the working group has not and will not consider the case where a TM owner starts proceedings against an IGO.

*Here’s the problem*

What Professor Swaine has done is say well he’s isolated a situation where an IGO would be entitled to claim an immunity defence absent UDRP so now he’s good to go for the rest of his report on immunity.

Wrong.

Just because Professor Swaine has identified a situation where an IGO is entitled to claim an immunity defence doesn’t mean he can then apply it to other situations

*. *

*Proof *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.

As the UDRP is an administrative procedure to help take less complex cases out of the judicial system if UDRP is to afford the same protections as any other forum then UDRP needs to take into account both scenarios.

(a) A TM owner seeks to acquire a domain which an IGO has registered by bringing a UDRP (b) An IGO seeks to acquire a domain which a domain registrant has registered by bringing a UDRP

*Let’s confirm what is happening with colours:* Blue = An immunity defence is good to go Red = An immunity defence is a no-no

Applying the logic Professor Swaine has used we have

(a) A TM owner seeks to acquire a domain which an IGO has registered by bringing a UDRP (b) An IGO seeks to acquire a domain which a domain registrant has registered by bringing a UDRP

What Professor Swaine is asking the reader to accept is the right to an immunity defence can be applied to both (a) and (b) scenarios and this can not be right because

Absent UDRP we have

(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

So the correct position at UDRP is

(a) A TM owner seeks to acquire a domain which an IGO has registered by bringing a UDRP (b) An IGO seeks to acquire a domain which a domain registrant has registered by bringing a UDRP

Quite simply the IGOs are never entitled to jurisdictional immunity after initiating proceedings.

On Fri, Jun 15, 2018 at 11:02 AM, Mary Wong <mary.wong@icann.org> wrote:

Hello again Paul and everyone,

Staff directs your attention to those parts of the memo where Professor Swaine writes as follows (emphasis added):

“ …the situation raises at least two distinct immunity issues. The first is whether, in principle, an IGO would enjoy immunity from judicial process with respect to name-related rights it might assert in the UDRP proceedings. *The answer depends on whether jurisdiction in which the case arises would apply an absolute, functional, or restrictive immunity approach to the IGO in question. That may be hard to predict*. In the United States, for example, unless an IGO benefits from broader treaty protections—as the United Nations, but not its specialized agencies, does, because the United States is only party to a treaty governing the former’s immunity—the question is addressed by the International Organizations Immunities Act (the IOIA), but some courts interpret the statute as establishing absolute immunity and others view it as establishing restrictive immunity only. The answer is a bit more straightforward elsewhere, and other states tend to favor either an absolute or a functional approach. *The choice among these approaches would be material.* If an IGO is entitled to absolute immunity, it would in principle be protected from a suit of the kind in question, and probably under a functional approach as well—because an IGO’s protection of its name is likely to be deemed part of its functions. Immunity is less likely under a restrictive approach, which might regard this as more akin to trademark-related activity that is commercial in character.

*The second, more relevant, question is whether—in light of an IGO’s assent to Mutual Jurisdiction, by virtue of its initiation of UDRP proceedings (or its registration of a domain name)—its immunity remains. Here, the more likely answer is that it would not.* IGOs are capable of waiving their immunity from suit, and if they do so, they may no longer interpose immunity as a defense if another party commences a judicial action falling within the scope of that waiver. The grant of Mutual Jurisdiction should establish such a waiver, just as it would for a state entity otherwise entitled to immunity. This waiver would be construed narrowly, but it would likely permit proceeding against an IGO in at least some domestic courts.

*The overall answer, then, is contingent.* If there were no Mutual Jurisdiction clause, an IGO might be entitled to immunity to judicial process; if, on the other hand, the Mutual Jurisdiction clause were maintained, as in the status quo, the IGO’s immunity is less germane because it would have been waived. Equitable considerations might influence any judicial analysis …

Accordingly, an IGO complainant will have consented to judicial proceedings if a losing respondent wishes to challenge a cancellation or

—in a jurisdiction that the IGO will have selected, but from limited choices that the registrant can craft through its choice of registrar and its registering address … *How matters unfold from that point will depend on national law.*

*In short, the Mutual Jurisdiction concession means that certain IGOs will have agreed to the possibility of a judicial process, notwithstanding any immunity to which they otherwise would be entitled*.”

As such, Professor Swaine seems to have acknowledged that, in many instances where a losing registrant files suit against a prevailing IGO in a national court, the court is likely to rule that the IGO will have waived its immunity. He also points out that this is *not* necessarily always the case as it may depend on the approach that national court takes toward the doctrine of IGO jurisdictional immunity. As staff has noted elsewhere, there is no single, universal, unified principle that determines the result across all national courts; and there is no single international treaty that applies to all IGOs and to which all states are party.

Thus, Professor Swaine’s expert legal opinion seems to us to be saying that while it is likely that in many jurisdictions an IGO will *not* succeed in claiming immunity from jurisdiction, this is not to be assumed as a certainty in all jurisdictions globally. It may be a rare case that an IGO succeeds, but it is at least a possibility in a few jurisdictions.

We trust this is sufficiently clear.

Best regards,

Mary & Steve

*From: *Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org> on behalf of Paul Tattersfield <gpmgroup@gmail.com> *Date: *Friday, June 15, 2018 at 17:17 *To: *"petter.rindforth@fenixlegal.eu" <petter.rindforth@fenixlegal.eu> *Cc: *"gnso-igo-ingo-." <gnso-igo-ingo-crp@icann.org> *Subject: *Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus

Dear Petter,

On Swaine I do not believe what you are proposing is acceptable. This isn’t some minor matter for a minority opinion Swaine underpins the whole of the working group’s final report. I have shown very clearly in plain language how Swaine introduces horrendously complex issues which have absolutely no relevance whatsoever to what the working group has been asked to consider.

Both Paul Keating & George Kirikos have both indicated they share my concerns that Swaine can never be considered correct on this matter and in the alternative no one has voiced any dissent to the expanded proof I outlined. The only person to offer any comments has been Mary and she did not address the core issue I was raising and has chosen so far not to dispute or comment further on the expanded proof. (For completeness Phillip said he was proud of Swaine)

You have chosen not to comment too. Do you also still personally believe what I am saying is wrong and that Swaine can possibly be correct in his findings?

If so please can you please explain to the working group how Swaine can possibly be correct because the report fails to adequately acknowledge or address the indisputable fact that IGOs automatically waive immunity every time they commence a legal proceeding?

Yours sincerely,

Paul.

Expanded proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001310.html (.pdf with colours)

Original proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001202.html (.pdf with colours)

On Fri, Jun 15, 2018 at 8:29 AM, Petter Rindforth < petter.rindforth@fenixlegal.eu> wrote:

Dear Working Group members,

In light of the need for us to complete our work, in my role as the Chair, I ask you all to now focus on the task at hand, which is to finalize agreement on the appropriate consensus levels for each recommendation. In this regard, please note the following:

(1) I have put the most current, likely consensus levels here in this message and will appreciate further feedback;

(2) we need now also to focus on discussing where we want to end up in relation to Option 1 and Option 4, which may be mutually incompatible; and

(3) where you have made a suggestion on any specific point/topic but it has not received support, I ask that you consider filing a Minority Statement now rather than continue to argue the point.

On consensus levels, and based on our call earlier this week and the more recent list discussions:

*Recommendation 1:* Full Consensus (with additional text in the rationale about why this recommendation was phrased to cover INGOs, and noting that IGOs are covered by the remaining recommendations which nevertheless do not require changing the UDRP or URS beyond what may be necessary to effectuate those additional recommendations – I note that this last caveat may of course not be necessary if the group reaches consensus on Option 4 versus Option 1, as we are currently discussing).

*Recommendation 2: *Consensus (with slight amendment to the recommendation text to reflect “trademark or service mark rights” where we mention “unregistered” rights).

*Recommendation 3:* Consensus

*Recommendation 4: *Strong Support but Significant Opposition (with additional text in the rationale to note that several members are strongly against subsidies of any sort).

*Recommendation 5/Options 1-6* (which we can renumber/title in the Final Report to avoid confusion):

Option 1 – Consensus or Strong Support but Significant Opposition

Option 2 – No Consensus/Divergence

Option 3 – Minority View (Consensus Against)

Option 4 – Consensus or Strong Support but Significant Opposition

Option 5 – No Consensus/Divergence

Option 6 – Strong Support but Significant Opposition

*On reconciling Options 1 & 4:*

If, from the above tentative consensus listing, the group agrees that either Option 1 or Option 4 has sufficient consensus (but not the other), there will not be a conflict. Please therefore weigh in with your thoughts on the current consensus levels for these two options. I have seen some informal notes from WG members that support both Option 1 and Option 4, clarifying that they prefer Option 1 before Option 4, but please make such statements/clarification again.

Similarly, if we end up with Strong Support but Significant Opposition for both, we can just transmit both to the Council without the need for further discussion (but possibly with text that can include implementation guidance for Option 1).

For Option 1 – this will require a change to the UDRP and URS, so if this is the final consensus position, staff will add draft text to the report with implementation guidance.

*On Minority Statements:*

1) As Susan suggested on the call, Paul Tattersfield may want to consider filing a Minority Statement in regard to the Swaine memo, as despite several emails on the topic over the last month or two and on the Working Group calls, there has not been much support to remove the memo from the report.

2) Similarly, those who support recommendations/options that end up as either No Consensus/Divergence or Minority View should consider preparing Minority Statements (as I believe Phil has already indicated he may do).

Thank you to all who are contributing to a productive discussion. I ask that we refrain from questioning others’ credibility or credentials, stop bringing up old threads and posts again, and focus on getting to the final consensus. We had a good, friendly and effective call this Tuesday – let us continue that way also online!

Best regards,

Petter

--

Petter Rindforth, LL M

Fenix Legal KB

Stureplan 4c, 4tr

114 35 Stockholm

Sweden

Fax: +46(0)8-4631010

Direct phone: +46(0)702-369360

E-mail: petter.rindforth@fenixlegal.eu

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Thank you

_______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp

Apologies, we of course meant “fundamental point of DISAGREEMENT”. Thank you. From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org> on behalf of Mary Wong <mary.wong@icann.org> Date: Thursday, June 21, 2018 at 11:05 To: Paul Tattersfield <gpmgroup@gmail.com>, "Corwin, Philip" <pcorwin@verisign.com> Cc: "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus Hello everyone, As Paul had requested in a previous message that staff not merely reproduce excerpts from Professor Swaine’s memo, please allow us to provide a response. The fundamental point of substantive agreement seems to be whether it is the IGO that can be considered to have initiate the legal proceedings when it first files a complaint under the UDRP or URS. Our understanding of Paul’s position is that he believes this to be the case, and as such the IGO must necessarily be considered to have waived any jurisdictional immunity to which it may otherwise be entitled. Our understanding, however, of legal process and of what we believe to have been Professor Swaine’s assumption, is that this may not be the case. The UDRP and URS are mandatory administrative proceedings that are separate from, and independent of, the judicial process. As such, when a losing respondent files suit in a national court, it is up to that court to determine whether and how to give any deference to the UDRP under its national laws (as well as consider if, to the extent the IGO decides to claim jurisdictional immunity from that court, such an immunity claim will be permitted under its national laws). The court filing by the losing respondent is not a direct appeal from the UDRP panel decision, and thus not a continuation of the UDRP proceeding but may be considered a separate legal filing. While many jurisdictions may indeed rule that an IGO, having agreed to Mutual Jurisdiction, will therefore have given up any immunity, this is not necessarily or universally the case (as Professor Swaine acknowledged). To give a specific example, we believe that decisions in civil cases in Korean courts concerning enforcement of UDRP decisions are decided under the relevant Korean domestic laws based on Korean Supreme Court jurisprudence. Best regards, Mary & Steve From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org> on behalf of Paul Tattersfield <gpmgroup@gmail.com> Date: Thursday, June 21, 2018 at 10:24 To: "Corwin, Philip" <pcorwin@verisign.com> Cc: "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus You claim you have proven in a single page that a 25-page analysis of the issue of IGO immunity in the context of judicial appeal of a UDRP decision, written by a professor of and expert in international law, is wrong. I disagree. Its competence not office that matters, one of the big advantages of the multistakeholder model is it can allow The Emperor’s New Clothes situations to come to light that would otherwise remain clothed in expert opinion. It is not helpful to simply say I am wrong. You should at least try to show why what I have said is wrong, as I have clearly, concisely and precisely done with the Swaine errors. I’ll reply to each of the other points you raise, but it does rather play into a ruse to refuse to address the core issue and everyone then gets obstructed and deffered to anything but the question asked. Which then of course opens up the opportunity for a myriad of other tangential but ultimately fruitless lines of engagement thereby helping avoid the core issue for even longer. There is no such thing as proof in application of regulation and law to specific fact situations. The law is not black and white but many shades of grey. The law is not a math equation with one single answer that can be proven, or a science experiment that can be replicated to prove a theorem. That is why every modern judicial system has a supreme judicial body to resolve the inconsistencies between lower court decisions applying the same law to similar facts. And even then, the “correct” answer can be determined by a single vote, as evidenced by the many 5-4 split decisions of the US Supreme Court. We are here to make an existing framework more equitable not litigate it. What we are supposed to be doing is drafting the equivalence of statute. We need to be clear and concise, well intentioned and precise. As I’ve already pointed out, the Swaine memo does not dictate any particular policy recommendation outcome, and parts of it can be relied upon by proponents of option 1 who believe that the UDRP’s reference to mutual jurisdiction trumps all other considerations. I respectfully dissent from that position and support option 3 because I believe that it is important to restrain ICANN from attempting to curb the legal rights of any party to a UDRP, registrant or IGO. The problem is Swaine gives the impression it is relevant to what the working group has been asked to consider – whereas really, its irrelevant complexity confuses rather than clarifies. I also support option 3 because I believe it has some chance of becoming ICANN policy and resolving this matter, while I cannot envision option 1 ever being approved by the ICANN Board even if it is passed forward from Council. In your former role as co-chair this is called bias. This is one of the main reasons why this working group reached the point where it almost collapsed and we now have a significantly weaker final report which was predominantly drafted with the intention of supporting your preferred option. This is very bad because it fails to fully articulate the sound reasons behind the final consensus positions. The Swaine memo is an informed and nuanced discussion of the central issue before this WG. It should be retained in our Final Report to inform Council and the Board of the complex legal issues relevant to the matter of IGO access to CRP, both when considering this WG’s Final Report and later on -- when this issue is revisited after it becomes clear that we have not produced a policy option acceptable to the GAC and IGOs or capable of achieving Board approval. The multistakeholder working group model is about building and supporting consensus and it isn’t helpful when those leading a group will only contribute positively when it furthers their own agenda. We could easily have easily improved process to help IGOs & INGOs and at the same time improved it for registrants too, instead you chose to lead the working group on path to try and force through at all costs the ridiculous #3. - Very sad and not what the multistakeholder model was ever intended for. Prove me wrong show me why my proof is wrong :-) Original proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001202.html (.pdf with colours) Expanded proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001310.html (.pdf with colours) On Tue, Jun 19, 2018 at 1:58 PM, Corwin, Philip <pcorwin@verisign.com<mailto:pcorwin@verisign.com>> wrote: Paul: You claim you have proven in a single page that a 25-page analysis of the issue of IGO immunity in the context of judicial appeal of a UDRP decision, written by a professor of and expert in international law, is wrong. I disagree. There is no such thing as proof in application of regulation and law to specific fact situations. The law is not black and white but many shades of grey. The law is not a math equation with one single answer that can be proven, or a science experiment that can be replicated to prove a theorem. That is why every modern judicial system has a supreme judicial body to resolve the inconsistencies between lower court decisions applying the same law to similar facts. And even then, the “correct” answer can be determined by a single vote, as evidenced by the many 5-4 split decisions of the US Supreme Court. As I’ve already pointed out, the Swaine memo does not dictate any particular policy recommendation outcome, and parts of it can be relied upon by proponents of option 1 who believe that the UDRP’s reference to mutual jurisdiction trumps all other considerations. I respectfully dissent from that position and support option 3 because I believe that it is important to restrain ICANN from attempting to curb the legal rights of any party to a UDRP, registrant or IGO. I also support option 3 because I believe it has some chance of becoming ICANN policy and resolving this matter, while I cannot envision option 1 ever being approved by the ICANN Board even if it is passed forward from Council. The Swaine memo is an informed and nuanced discussion of the central issue before this WG. It should be retained in our Final Report to inform Council and the Board of the complex legal issues relevant to the matter of IGO access to CRP, both when considering this WG’s Final Report and later on -- when this issue is revisited after it becomes clear that we have not produced a policy option acceptable to the GAC and IGOs or capable of achieving Board approval. Philip Philip S. Corwin Policy Counsel VeriSign, Inc. 12061 Bluemont Way [maps.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Reston, VA 20190 703-948-4648/Direct 571-342-7489/Cell "Luck is the residue of design" -- Branch Rickey From: Paul Tattersfield [mailto:gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>] Sent: Tuesday, June 19, 2018 3:35 AM To: Corwin, Philip <pcorwin@verisign.com<mailto:pcorwin@verisign.com>> Cc: petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu>; gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org> Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus With all respect, in regard to your statement, “I have shown very clearly why the IGOs are never entitled to immunity after they have chosen to initiate proceedings in ANY forum”, Yes that’s right. and without even delving into the quality of your analysis, the fact that you believe an IGO would never succeed in an immunity defence in a judicial appeal from a UDRP filed by the losing registrant would not prevent any judge in any court from finding to the contrary and dismissing the case. Wrong - you are not understanding what I wrote and then attributing your own conclusion to me. Go read my proof and show me where I am wrong I don’t believe you can. The disagreement within this working group is over what should happen in the event of that rare but nonetheless possible scenario. Outside of the original co-chairs there is little disagreement, you should have the grace to respect that position. Prof. Swaine was asked to inform us as to how a court would deal with such an immunity claim and the likely response from plaintiff domain registrant that the IGO had waived its immunity by filing a UDRP with knowledge of the mutual jurisdiction clause. It is only the forum that makes the domain registrant a “plaintiff” on a claim that an IGO chose to initiate. That is the quirk of process. It is still the same principle matter. Whether the IGO chose to file a URDP or judicial proceedings the IGO is choosing to INTIATE proceedings. His memo discussed the different analytical approaches that courts employ as well as the interplay with other factors, such as national laws addressing sovereign immunity. As Petter noted, he concluded that many courts would determine that immunity had been waived, but that case dismissal by some courts could not be ruled out. The huge mistake Professor Swaine made was to analyze in great depth the scenario where an IGO is defending a claim and mistakenly assume that any rights to jurisdictional immunity there could be “transferred/applied” to the scenario where an IGO is initiating a claim. My proof pinpoints very precisely where and how he made that error in his reasoning on page 8 of his memo. The Swaine memo does not dictate any particular policy outcome within this WG, and it can likely be cited by those with differing views on the key issue before us. It informed our consideration of the questions before us and should be included within the final report as a reference point, and only as that. If you think anything in it is wrong you are free to include that in a minority statement. Swaine can never be relevant because the working group has not considered the case where an IGO is defending a UDRP brought against it by a TM owner. Swaine’s complexity confuses rather than clarifies and if you really must include it stick it in your minority report – it’s junk It’s quite simple Phillip go and read my proof (it’s less than a page) and if you believe it is wrong show me where it is wrong. I don’t believe you can that is why you are squandering everyone’s time (again). 1 Original proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001202.html (.pdf with colours) 2 Expanded proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001310.html (.pdf with colours) On Mon, Jun 18, 2018 at 1:30 AM, Corwin, Philip <pcorwin@verisign.com<mailto:pcorwin@verisign.com>> wrote: Paul: With all respect, in regard to your statement, “I have shown very clearly why the IGOs are never entitled to immunity after they have chosen to initiate proceedings in ANY forum”, and without even delving into the quality of your analysis, the fact that you believe an IGO would never succeed in an immunity defence in a judicial appeal from a UDRP filed by the losing registrant would not prevent any judge in any court from finding to the contrary and dismissing the case. The disagreement within this working group is over what should happen in the event of that rare but nonetheless possible scenario. Prof. Swaine was asked to inform us as to how a court would deal with such an immunity claim and the likely response from plaintiff domain registrant that the IGO had waived its immunity by filing a UDRP with knowledge of the mutual jurisdiction clause. His memo discussed the different analytical approaches that courts employ as well as the interplay with other factors, such as national laws addressing sovereign immunity. As Petter noted, he concluded that many courts would determine that immunity had been waived, but that case dismissal by some courts could not be ruled out. The Swaine memo does not dictate any particular policy outcome within this WG, and it can likely be cited by those with differing views on the key issue before us. It informed our consideration of the questions before us and should be included within the final report as a reference point, and only as that. If you think anything in it is wrong you are free to include that in a minority statement. Philip Philip S. Corwin Policy Counsel VeriSign, Inc. 12061 Bluemont Way [maps.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Reston, VA 20190 703-948-4648/Direct 571-342-7489/Cell "Luck is the residue of design" -- Branch Rickey From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org<mailto:gnso-igo-ingo-crp-bounces@icann.org>] On Behalf Of Paul Tattersfield Sent: Sunday, June 17, 2018 2:55 PM To: petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu> Cc: gnso-igo-ingo-. <gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>> Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus Dear Petter, The problem is the issue I am raising is overarching – I have shown very clearly why the IGOs are never entitled to immunity after they have chosen to initiate proceedings in ANY forum. I have also shown very precisely where Swaine went wrong in his reasoning. Petter wrote: “And I cannot see that Prof Swaine clearly states that IGO’s have the right to refer to their immunity. Instead, he states several times that the fact that an IGO has accepted a URS or UDRP case, is also likely to be seen as a waiver of their immunity. This seems especially related to UN: …” This misses the point the IGOs are choosing to initiate proceedings. Professor Swaine has analysed the scenario where an IGO is defending an initial action and then assumed incorrectly that any immunity rights enjoyed where an IGO is defending an action can be “transferred/allocated/applied” to the scenario where an IGO brings an action as the plaintiff (or claimant). When the IGO is the initial plaintiff (or claimant) it is NEVER entitled to jurisdictional immunity. I have responded to all of Mary’s points in this thread and in more detail to the other thread where Paul K. supported my concerns and David drew attention to the United Nations Convention on Jurisdictional Immunities of States and Their Property treaty. Further I have reached out to as many people as possible inviting them to refute my reasoning and so far no one has been able to show how I am even slightly wrong including people who have represented IGO interests. Please show me how my proof is anyway wrong…. Yours sincerely, Paul. Original proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001202.html (.pdf with colours) Expanded proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001310.html (.pdf with colours) On Sun, Jun 17, 2018 at 5:29 PM, Petter Rindforth <petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu>> wrote: Dear Paul and WG Members, As you all know, we had a call on February 16, 2016 to discuss Prof Swaine’s memo, and it was further discussed during 2016. I also tried to see from your (Paul) e-mails of December 2016 (especially of December 14, 2016), when we discussed the details of our Draft Initial Report that Mary had sent to our WG, but I could not find any specific note there by you on the report, other than suggestions to fix some typos in our DIR. Prof Swaine’s memo and report is in fact a part of our work and report, to refer to. And I cannot see that Prof Swaine clearly states that IGO’s have the right to refer to their immunity. Instead, he states several times that the fact that an IGO has accepted a URS or UDRP case, is also likely to be seen as a waiver of their immunity. This seems especially related to UN: “Article 2(2) of the General Convention, the UN’s absolute immunity from legal process (other than relative to execution) may be expressly waived in particular cases. National law may also resolve the matter. For example, the IOIA provides relevant IGOs with immunity (on the same terms as afforded states) “except to the extent that such organizations may expressly waive their immunity for the purpose of any proceedings or by the terms of any contract.” What Prof Swaine however also points out, is the fact that all national law worldwide is not clear, and further that it is also up to each national court to decide to accept immunity or not, and especially IGO's that are not UN related has not the same exact position. His conclusion was that the topic is not 100% clear (which ofcourse IGO's does not agree upon, as the same with you - however with two completely different views). Option 3 has covered such possible situation, and made sure that also in (possible rare) cases where a national court accept immunity, the domain holder can at least have possibility to get the case decided by arbitration. (= This was my short personal note, knowing that the majority of the WG does not agree with establishing such solution). To summarize: We have Prof. Swaine’s report to refer to and that has for long time been a part of, and reference, related to our full report. Paul, I appreciate your work with comments, and recommend that you prepare a Minority Statement in regard to the Swaine memo. Also, a reminder to other WG members that support Options with no majority from the WG, please prepare your Minority Statements. Finally: Please focus on our Final Report and keep the suggestions within our WG mailing list. We are close to make a conclusion on each Recommendation and Option. It is better for us all to effectively conclude our work now in a friendly manner, and create our Final Report, that can then be further discussed by others. Best regards, Petter -- Petter Rindforth, LL M Fenix Legal KB Stureplan 4c, 4tr 114 35 Stockholm Sweden Fax: +46(0)8-4631010 Direct phone: +46(0)702-369360 E-mail: petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu> www.fenixlegal.eu [fenixlegal.eu]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.fenixlegal.eu&d=DwMF...> NOTICE This e-mail message is intended solely for the individual or individuals to whom it is addressed. It may contain confidential attorney-client privileged information and attorney work product. If the reader of this message is not the intended recipient, you are requested not to read, copy or distribute it or any of the information it contains. Please delete it immediately and notify us by return e-mail. Fenix Legal KB, Sweden, www.fenixlegal.eu [fenixlegal.eu]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.fenixlegal.eu&d=DwMF...> Thank you 15 juni 2018 13:28:59 +02:00, skrev Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>>: Staff directs your attention to those parts of the memo where Professor Swaine writes as follows (emphasis added): “ …the situation raises at least two distinct immunity issues. The first is whether, in principle, an IGO would enjoy immunity from judicial process with respect to name-related rights it might assert in the UDRP proceedings. The answer depends on whether jurisdiction in which the case arises would apply an absolute, functional, or restrictive immunity approach to the IGO in question. That may be hard to predict. Wrong – Immunity is only a defence where an IGO is a defendant NOT a claimant. In the initial claim the IGO is the claimant whether it be a UDRP claim or a judicial claim. In the United States, for example, unless an IGO benefits from broader treaty protections—as the United Nations, but not its specialized agencies, does, because the United States is only party to a treaty governing the former’s immunity—the question is addressed by the International Organizations Immunities Act (the IOIA), but some courts interpret the statute as establishing absolute immunity and others view it as establishing restrictive immunity only. The answer is a bit more straightforward elsewhere, and other states tend to favor either an absolute or a functional approach. The choice among these approaches would be material. Yes immunity is complex, very complex, but it is not relevant because the IGO is the initiating the claim. If an IGO is entitled to absolute immunity, it would in principle be protected from a suit of the kind in question, and probably under a functional approach as well—because an IGO’s protection of its name is likely to be deemed part of its functions. Immunity is less likely under a restrictive approach, which might regard this as more akin to trademark-related activity that is commercial in character. The second, more relevant, question is whether—in light of an IGO’s assent to Mutual Jurisdiction, by virtue of its initiation of UDRP proceedings (or its registration of a domain name)—its immunity remains. Here, the more likely answer is that it would not. Wrong, the mutual jurisdiction clause is a separate very high hurdle in a litigation strategy for an IGO. There is no immunity to remain – see above. IGOs are capable of waiving their immunity from suit, and if they do so, they may no longer interpose immunity as a defense if another party commences a judicial action falling within the scope of that waiver. The grant of Mutual Jurisdiction should establish such a waiver, just as it would for a state entity otherwise entitled to immunity. This waiver would be construed narrowly, but it would likely permit proceeding against an IGO in at least some domestic courts. The overall answer, then, is contingent. Wrong – no it isn’t contingent there is no immunity to defend – see above If there were no Mutual Jurisdiction clause, an IGO might be entitled to immunity to judicial process; if, on the other hand, the Mutual Jurisdiction clause were maintained, as in the status quo, the IGO’s immunity is less germane because it would have been waived. Equitable considerations might influence any judicial analysis … Accordingly, an IGO complainant will have consented to judicial proceedings if a losing respondent wishes to challenge a cancellation or —in a jurisdiction that the IGO will have selected, but from limited choices that the registrant can craft through its choice of registrar and its registering address … How matters unfold from that point will depend on national law. This is a truism but is not relevant because there is no immunity to defend In short, the Mutual Jurisdiction concession means that certain IGOs will have agreed to the possibility of a judicial process, That’s right - that’s what the mutual jurisidiction clause is for, That is how it should be. If you make an allegation and ask a forum to rule on it to you have to be prepared to defend the allegation including counterclaims notwithstanding any immunity to which they otherwise would be entitled.” Wrong – there isn’t any immunity to defend – see above As such, Professor Swaine seems to have acknowledged that, in many instances where a losing registrant files suit against a prevailing IGO in a national court, the court is likely to rule that the IGO will have waived its immunity. He also points out that this is not necessarily always the case as it may depend on the approach that national court takes toward the doctrine of IGO jurisdictional immunity. As staff has noted elsewhere, there is no single, universal, unified principle that determines the result across all national courts; and there is no single international treaty that applies to all IGOs and to which all states are party. Thus, Professor Swaine’s expert legal opinion seems to us to be saying that while it is likely that in many jurisdictions an IGO will not succeed in claiming immunity from jurisdiction, this is not to be assumed as a certainty in all jurisdictions globally. It may be a rare case that an IGO succeeds, but it is at least a possibility in a few jurisdictions. We trust this is sufficiently clear. If you want to challenge my proof you need show in the text which I have included again below for completeness why I am wrong not quote from the report which based on the errors I am alleging. Looking at what Professor Swaine said: “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.” I think we can all agree that; initiating proceedings waives immunity including counterclaims. “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.” I think we can all agree that; if a TM owner starts proceedings to acquire a domain which an IGO has registered then an IGO would be entitled to use jurisdictional immunity to prevent a hearing taking place. “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” I think we can all agree that; the working group has not and will not consider the case where a TM owner starts proceedings against an IGO. Here’s the problem What Professor Swaine has done is say well he’s isolated a situation where an IGO would be entitled to claim an immunity defence absent UDRP so now he’s good to go for the rest of his report on immunity. Wrong. Just because Professor Swaine has identified a situation where an IGO is entitled to claim an immunity defence doesn’t mean he can then apply it to other situations. Proof 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. As the UDRP is an administrative procedure to help take less complex cases out of the judicial system if UDRP is to afford the same protections as any other forum then UDRP needs to take into account both scenarios. (a) A TM owner seeks to acquire a domain which an IGO has registered by bringing a UDRP (b) An IGO seeks to acquire a domain which a domain registrant has registered by bringing a UDRP Let’s confirm what is happening with colours: Blue = An immunity defence is good to go Red = An immunity defence is a no-no Applying the logic Professor Swaine has used we have (a) A TM owner seeks to acquire a domain which an IGO has registered by bringing a UDRP (b) An IGO seeks to acquire a domain which a domain registrant has registered by bringing a UDRP What Professor Swaine is asking the reader to accept is the right to an immunity defence can be applied to both (a) and (b) scenarios and this can not be right because Absent UDRP we have (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 So the correct position at UDRP is (a) A TM owner seeks to acquire a domain which an IGO has registered by bringing a UDRP (b) An IGO seeks to acquire a domain which a domain registrant has registered by bringing a UDRP Quite simply the IGOs are never entitled to jurisdictional immunity after initiating proceedings. On Fri, Jun 15, 2018 at 11:02 AM, Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> wrote: Hello again Paul and everyone, Staff directs your attention to those parts of the memo where Professor Swaine writes as follows (emphasis added): “ …the situation raises at least two distinct immunity issues. The first is whether, in principle, an IGO would enjoy immunity from judicial process with respect to name-related rights it might assert in the UDRP proceedings. The answer depends on whether jurisdiction in which the case arises would apply an absolute, functional, or restrictive immunity approach to the IGO in question. That may be hard to predict. In the United States, for example, unless an IGO benefits from broader treaty protections—as the United Nations, but not its specialized agencies, does, because the United States is only party to a treaty governing the former’s immunity—the question is addressed by the International Organizations Immunities Act (the IOIA), but some courts interpret the statute as establishing absolute immunity and others view it as establishing restrictive immunity only. The answer is a bit more straightforward elsewhere, and other states tend to favor either an absolute or a functional approach. The choice among these approaches would be material. If an IGO is entitled to absolute immunity, it would in principle be protected from a suit of the kind in question, and probably under a functional approach as well—because an IGO’s protection of its name is likely to be deemed part of its functions. Immunity is less likely under a restrictive approach, which might regard this as more akin to trademark-related activity that is commercial in character. The second, more relevant, question is whether—in light of an IGO’s assent to Mutual Jurisdiction, by virtue of its initiation of UDRP proceedings (or its registration of a domain name)—its immunity remains. Here, the more likely answer is that it would not. IGOs are capable of waiving their immunity from suit, and if they do so, they may no longer interpose immunity as a defense if another party commences a judicial action falling within the scope of that waiver. The grant of Mutual Jurisdiction should establish such a waiver, just as it would for a state entity otherwise entitled to immunity. This waiver would be construed narrowly, but it would likely permit proceeding against an IGO in at least some domestic courts. The overall answer, then, is contingent. If there were no Mutual Jurisdiction clause, an IGO might be entitled to immunity to judicial process; if, on the other hand, the Mutual Jurisdiction clause were maintained, as in the status quo, the IGO’s immunity is less germane because it would have been waived. Equitable considerations might influence any judicial analysis … Accordingly, an IGO complainant will have consented to judicial proceedings if a losing respondent wishes to challenge a cancellation or —in a jurisdiction that the IGO will have selected, but from limited choices that the registrant can craft through its choice of registrar and its registering address … How matters unfold from that point will depend on national law. In short, the Mutual Jurisdiction concession means that certain IGOs will have agreed to the possibility of a judicial process, notwithstanding any immunity to which they otherwise would be entitled.” As such, Professor Swaine seems to have acknowledged that, in many instances where a losing registrant files suit against a prevailing IGO in a national court, the court is likely to rule that the IGO will have waived its immunity. He also points out that this is not necessarily always the case as it may depend on the approach that national court takes toward the doctrine of IGO jurisdictional immunity. As staff has noted elsewhere, there is no single, universal, unified principle that determines the result across all national courts; and there is no single international treaty that applies to all IGOs and to which all states are party. Thus, Professor Swaine’s expert legal opinion seems to us to be saying that while it is likely that in many jurisdictions an IGO will not succeed in claiming immunity from jurisdiction, this is not to be assumed as a certainty in all jurisdictions globally. It may be a rare case that an IGO succeeds, but it is at least a possibility in a few jurisdictions. We trust this is sufficiently clear. Best regards, Mary & Steve From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org<mailto:gnso-igo-ingo-crp-bounces@icann.org>> on behalf of Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> Date: Friday, June 15, 2018 at 17:17 To: "petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu>" <petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu>> Cc: "gnso-igo-ingo-." <gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>> Subject: Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus Dear Petter, On Swaine I do not believe what you are proposing is acceptable. This isn’t some minor matter for a minority opinion Swaine underpins the whole of the working group’s final report. I have shown very clearly in plain language how Swaine introduces horrendously complex issues which have absolutely no relevance whatsoever to what the working group has been asked to consider. Both Paul Keating & George Kirikos have both indicated they share my concerns that Swaine can never be considered correct on this matter and in the alternative no one has voiced any dissent to the expanded proof I outlined. The only person to offer any comments has been Mary and she did not address the core issue I was raising and has chosen so far not to dispute or comment further on the expanded proof. (For completeness Phillip said he was proud of Swaine) You have chosen not to comment too. Do you also still personally believe what I am saying is wrong and that Swaine can possibly be correct in his findings? If so please can you please explain to the working group how Swaine can possibly be correct because the report fails to adequately acknowledge or address the indisputable fact that IGOs automatically waive immunity every time they commence a legal proceeding? Yours sincerely, Paul. Expanded proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001310.html (.pdf with colours) Original proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001202.html (.pdf with colours) On Fri, Jun 15, 2018 at 8:29 AM, Petter Rindforth <petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu>> wrote: Dear Working Group members, In light of the need for us to complete our work, in my role as the Chair, I ask you all to now focus on the task at hand, which is to finalize agreement on the appropriate consensus levels for each recommendation. In this regard, please note the following: (1) I have put the most current, likely consensus levels here in this message and will appreciate further feedback; (2) we need now also to focus on discussing where we want to end up in relation to Option 1 and Option 4, which may be mutually incompatible; and (3) where you have made a suggestion on any specific point/topic but it has not received support, I ask that you consider filing a Minority Statement now rather than continue to argue the point. On consensus levels, and based on our call earlier this week and the more recent list discussions: Recommendation 1: Full Consensus (with additional text in the rationale about why this recommendation was phrased to cover INGOs, and noting that IGOs are covered by the remaining recommendations which nevertheless do not require changing the UDRP or URS beyond what may be necessary to effectuate those additional recommendations – I note that this last caveat may of course not be necessary if the group reaches consensus on Option 4 versus Option 1, as we are currently discussing). Recommendation 2: Consensus (with slight amendment to the recommendation text to reflect “trademark or service mark rights” where we mention “unregistered” rights). Recommendation 3: Consensus Recommendation 4: Strong Support but Significant Opposition (with additional text in the rationale to note that several members are strongly against subsidies of any sort). Recommendation 5/Options 1-6 (which we can renumber/title in the Final Report to avoid confusion): Option 1 – Consensus or Strong Support but Significant Opposition Option 2 – No Consensus/Divergence Option 3 – Minority View (Consensus Against) Option 4 – Consensus or Strong Support but Significant Opposition Option 5 – No Consensus/Divergence Option 6 – Strong Support but Significant Opposition On reconciling Options 1 & 4: If, from the above tentative consensus listing, the group agrees that either Option 1 or Option 4 has sufficient consensus (but not the other), there will not be a conflict. Please therefore weigh in with your thoughts on the current consensus levels for these two options. I have seen some informal notes from WG members that support both Option 1 and Option 4, clarifying that they prefer Option 1 before Option 4, but please make such statements/clarification again. Similarly, if we end up with Strong Support but Significant Opposition for both, we can just transmit both to the Council without the need for further discussion (but possibly with text that can include implementation guidance for Option 1). For Option 1 – this will require a change to the UDRP and URS, so if this is the final consensus position, staff will add draft text to the report with implementation guidance. On Minority Statements: 1) As Susan suggested on the call, Paul Tattersfield may want to consider filing a Minority Statement in regard to the Swaine memo, as despite several emails on the topic over the last month or two and on the Working Group calls, there has not been much support to remove the memo from the report. 2) Similarly, those who support recommendations/options that end up as either No Consensus/Divergence or Minority View should consider preparing Minority Statements (as I believe Phil has already indicated he may do). Thank you to all who are contributing to a productive discussion. I ask that we refrain from questioning others’ credibility or credentials, stop bringing up old threads and posts again, and focus on getting to the final consensus. We had a good, friendly and effective call this Tuesday – let us continue that way also online! Best regards, Petter -- Petter Rindforth, LL M Fenix Legal KB Stureplan 4c, 4tr 114 35 Stockholm Sweden Fax: +46(0)8-4631010 Direct phone: +46(0)702-369360 E-mail: petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu> www.fenixlegal.eu [fenixlegal.eu]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.fenixlegal.eu&d=DwMF...> NOTICE This e-mail message is intended solely for the individual or individuals to whom it is addressed. It may contain confidential attorney-client privileged information and attorney work product. If the reader of this message is not the intended recipient, you are requested not to read, copy or distribute it or any of the information it contains. Please delete it immediately and notify us by return e-mail. Fenix Legal KB, Sweden, www.fenixlegal.eu [fenixlegal.eu]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.fenixlegal.eu&d=DwMF...> Thank you _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org<mailto:Gnso-igo-ingo-crp@icann.org> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp

Thanks, Phil. Wouldn't you agree that, regardless of the term used to describe, it is an appeal in *substance* - as the registrant's *property* is already subject to be taken from the registrant? De novo simply refers to the standard of review - the court will take a fresh look without deference to the UDRP. Sincerely, Jay Chapman * <http://www.digimedia.com>* On Thu, Jun 21, 2018 at 10:24 AM, Corwin, Philip via Gnso-igo-ingo-crp < gnso-igo-ingo-crp@icann.org> wrote:

Thanks Mary.

In regard to this –

*The fundamental point of substantive [dis]agreement seems to be whether it is the IGO that can be considered to have initiate the legal proceedings when it first files a complaint under the UDRP or URS. Our understanding of Paul’s position is that he believes this to be the case, and as such the IGO must necessarily be considered to have waived any jurisdictional immunity to which it may otherwise be entitled.*

*Our understanding, however, of legal process and of what we believe to have been Professor Swaine’s assumption, is that this may not be the case.*

I would suggest that it is absolutely not the case. While follow-up judicial filings by UDRP-losing registrants are loosely referred to as an “appeal”, it is in fact well understood that they are de novo proceedings that are decided independently of the prior DRP on the basis of relevant statutes and case law, not the UDRP standard.

While I can’t possibly speak to all jurisdictions, in the US the registrant would file the action under the ACPA, the IGO would then seek dismissal on grounds of immunity, and the registrant would then present evidence against that motion based upon a claim that the IGO had waived immunity when it brought the UDRP action with knowledge of the mutual jurisdiction provision. The court would then decide whether to dismiss the case for lack of jurisdiction over one of the parties, or let it proceed based on prior waiver of immunity.

The court case is an independent judicial action initiated by the domain registrant, with UDRP policy staying effect of the prior decision until the court case is decided or dismissed.

Philip S. Corwin

Policy Counsel

VeriSign, Inc.

12061 Bluemont Way Reston, VA 20190

703-948-4648/Direct

571-342-7489/Cell

*"Luck is the residue of design" -- Branch Rickey*

*From:* Mary Wong [mailto:mary.wong@icann.org] *Sent:* Thursday, June 21, 2018 11:08 AM *To:* Paul Tattersfield <gpmgroup@gmail.com>; Corwin, Philip < pcorwin@verisign.com> *Cc:* gnso-igo-ingo-crp@icann.org *Subject:* [EXTERNAL] Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus

Apologies, we of course meant “fundamental point of DISAGREEMENT”. Thank you.

*From: *Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org> on behalf of Mary Wong <mary.wong@icann.org> *Date: *Thursday, June 21, 2018 at 11:05 *To: *Paul Tattersfield <gpmgroup@gmail.com>, "Corwin, Philip" < pcorwin@verisign.com> *Cc: *"gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> *Subject: *Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus

Hello everyone,

As Paul had requested in a previous message that staff not merely reproduce excerpts from Professor Swaine’s memo, please allow us to provide a response. The fundamental point of substantive agreement seems to be whether it is the IGO that can be considered to have initiate the legal proceedings when it first files a complaint under the UDRP or URS. Our understanding of Paul’s position is that he believes this to be the case, and as such the IGO must necessarily be considered to have waived any jurisdictional immunity to which it may otherwise be entitled.

Our understanding, however, of legal process and of what we believe to have been Professor Swaine’s assumption, is that this may *not* be the case. The UDRP and URS are mandatory administrative proceedings that are separate from, and independent of, the judicial process. As such, when a losing respondent files suit in a national court, it is up to that court to determine whether and how to give any deference to the UDRP under its national laws (as well as consider if, to the extent the IGO decides to claim jurisdictional immunity from that court, such an immunity claim will be permitted under its national laws). The court filing by the losing respondent is not a direct appeal from the UDRP panel decision, and thus not a continuation of the UDRP proceeding but may be considered a separate legal filing.

While many jurisdictions may indeed rule that an IGO, having agreed to Mutual Jurisdiction, will therefore have given up any immunity, this is not necessarily or universally the case (as Professor Swaine acknowledged). To give a specific example, we believe that decisions in civil cases in Korean courts concerning enforcement of UDRP decisions are decided under the relevant Korean domestic laws based on Korean Supreme Court jurisprudence.

Best regards,

Mary & Steve

*From: *Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org> on behalf of Paul Tattersfield <gpmgroup@gmail.com> *Date: *Thursday, June 21, 2018 at 10:24 *To: *"Corwin, Philip" <pcorwin@verisign.com> *Cc: *"gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> *Subject: *Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus

You claim you have proven in a single page that a 25-page analysis of the issue of IGO immunity in the context of judicial appeal of a UDRP decision, written by a professor of and expert in international law, is wrong. I disagree.

Its competence not office that matters, one of the big advantages of the multistakeholder model is it can allow The Emperor’s New Clothes situations to come to light that would otherwise remain clothed in expert opinion. It is not helpful to simply say I am wrong. You should at least try to show why what I have said is wrong, as I have clearly, concisely and precisely done with the Swaine errors.

I’ll reply to each of the other points you raise, but it does rather play into a ruse to refuse to address the core issue and everyone then gets obstructed and deffered to anything but the question asked. Which then of course opens up the opportunity for a myriad of other tangential but ultimately fruitless lines of engagement thereby helping avoid the core issue for even longer.

There is no such thing as proof in application of regulation and law to specific fact situations. The law is not black and white but many shades of grey. The law is not a math equation with one single answer that can be proven, or a science experiment that can be replicated to prove a theorem. That is why every modern judicial system has a supreme judicial body to resolve the inconsistencies between lower court decisions applying the same law to similar facts. And even then, the “correct” answer can be determined by a single vote, as evidenced by the many 5-4 split decisions of the US Supreme Court.

We are here to make an existing framework more equitable not litigate it. What we are supposed to be doing is drafting the equivalence of statute. We need to be clear and concise, well intentioned and precise.

As I’ve already pointed out, the Swaine memo does not dictate any particular policy recommendation outcome, and parts of it can be relied upon by proponents of option 1 who believe that the UDRP’s reference to mutual jurisdiction trumps all other considerations. I respectfully dissent from that position and support option 3 because I believe that it is important to restrain ICANN from attempting to curb the legal rights of any party to a UDRP, registrant or IGO.

The problem is Swaine gives the impression it is relevant to what the working group has been asked to consider – whereas really, its irrelevant complexity confuses rather than clarifies.

I also support option 3 because I believe it has some chance of becoming ICANN policy and resolving this matter, while I cannot envision option 1 ever being approved by the ICANN Board even if it is passed forward from Council.

In your former role as co-chair this is called bias. This is one of the main reasons why this working group reached the point where it almost collapsed and we now have a significantly weaker final report which was predominantly drafted with the intention of supporting your preferred option. This is very bad because it fails to fully articulate the sound reasons behind the final consensus positions.

The Swaine memo is an informed and nuanced discussion of the central issue before this WG. It should be retained in our Final Report to inform Council and the Board of the complex legal issues relevant to the matter of IGO access to CRP, both when considering this WG’s Final Report and later on -- when this issue is revisited after it becomes clear that we have not produced a policy option acceptable to the GAC and IGOs or capable of achieving Board approval.

The multistakeholder working group model is about building and supporting consensus and it isn’t helpful when those leading a group will only contribute positively when it furthers their own agenda. We could easily have easily improved process to help IGOs & INGOs and at the same time improved it for registrants too, instead you chose to lead the working group on path to try and force through at all costs the ridiculous #3. - Very sad and not what the multistakeholder model was ever intended for.

Prove me wrong show me why my proof is wrong :-)

Original proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001202.html (.pdf with colours) Expanded proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001310.html (.pdf with colours)

On Tue, Jun 19, 2018 at 1:58 PM, Corwin, Philip <pcorwin@verisign.com> wrote:

Paul:

You claim you have proven in a single page that a 25-page analysis of the issue of IGO immunity in the context of judicial appeal of a UDRP decision, written by a professor of and expert in international law, is wrong. I disagree.

There is no such thing as proof in application of regulation and law to specific fact situations. The law is not black and white but many shades of grey. The law is not a math equation with one single answer that can be proven, or a science experiment that can be replicated to prove a theorem. That is why every modern judicial system has a supreme judicial body to resolve the inconsistencies between lower court decisions applying the same law to similar facts. And even then, the “correct” answer can be determined by a single vote, as evidenced by the many 5-4 split decisions of the US Supreme Court.

As I’ve already pointed out, the Swaine memo does not dictate any particular policy recommendation outcome, and parts of it can be relied upon by proponents of option 1 who believe that the UDRP’s reference to mutual jurisdiction trumps all other considerations. I respectfully dissent from that position and support option 3 because I believe that it is important to restrain ICANN from attempting to curb the legal rights of any party to a UDRP, registrant or IGO. I also support option 3 because I believe it has some chance of becoming ICANN policy and resolving this matter, while I cannot envision option 1 ever being approved by the ICANN Board even if it is passed forward from Council.

The Swaine memo is an informed and nuanced discussion of the central issue before this WG. It should be retained in our Final Report to inform Council and the Board of the complex legal issues relevant to the matter of IGO access to CRP, both when considering this WG’s Final Report and later on -- when this issue is revisited after it becomes clear that we have not produced a policy option acceptable to the GAC and IGOs or capable of achieving Board approval.

Philip

Philip S. Corwin

Policy Counsel

VeriSign, Inc.

12061 Bluemont Way [maps.google.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Reston, VA 20190

703-948-4648/Direct

571-342-7489/Cell

*"Luck is the residue of design" -- Branch Rickey*

*From:* Paul Tattersfield [mailto:gpmgroup@gmail.com] *Sent:* Tuesday, June 19, 2018 3:35 AM *To:* Corwin, Philip <pcorwin@verisign.com> *Cc:* petter.rindforth@fenixlegal.eu; gnso-igo-ingo-crp@icann.org

*Subject:* [EXTERNAL] Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus

With all respect, in regard to your statement, “I have shown very clearly why the IGOs are never entitled to immunity after they have chosen to initiate proceedings in ANY forum”,

Yes that’s right.

and without even delving into the quality of your analysis, the fact that you believe an IGO would never succeed in an immunity defence in a judicial appeal from a UDRP filed by the losing registrant would not prevent any judge in any court from finding to the contrary and dismissing the case.

Wrong - you are not understanding what I wrote and then attributing your own conclusion to me. Go read my proof and show me where I am wrong I don’t believe you can.

The disagreement within this working group is over what should happen in the event of that rare but nonetheless possible scenario.

Outside of the original co-chairs there is little disagreement, you should have the grace to respect that position.

Prof. Swaine was asked to inform us as to how a court would deal with such an immunity claim and the likely response from plaintiff domain registrant that the IGO had waived its immunity by filing a UDRP with knowledge of the mutual jurisdiction clause.

It is only the forum that makes the domain registrant a “plaintiff” on a claim that an IGO chose to initiate. That is the quirk of process. It is still the same principle matter. Whether the IGO chose to file a URDP or judicial proceedings the IGO is choosing to INTIATE proceedings.

His memo discussed the different analytical approaches that courts employ as well as the interplay with other factors, such as national laws addressing sovereign immunity. As Petter noted, he concluded that many courts would determine that immunity had been waived, but that case dismissal by some courts could not be ruled out.

The huge mistake Professor Swaine made was to analyze in great depth the scenario where an IGO is defending a claim and mistakenly assume that any rights to jurisdictional immunity there could be “transferred/applied” to the scenario where an IGO is initiating a claim.

My proof pinpoints very precisely where and how he made that error in his reasoning on page 8 of his memo.

The Swaine memo does not dictate any particular policy outcome within this WG, and it can likely be cited by those with differing views on the key issue before us. It informed our consideration of the questions before us and should be included within the final report as a reference point, and only as that. If you think anything in it is wrong you are free to include that in a minority statement.

Swaine can never be relevant because the working group has not considered the case where an IGO is defending a UDRP brought against it by a TM owner. Swaine’s complexity confuses rather than clarifies and if you really must include it stick it in your minority report – it’s junk

It’s quite simple Phillip go and read my proof (it’s less than a page) and if you believe it is wrong show me where it is wrong. I don’t believe you can that is why you are squandering everyone’s time (again).

1 Original proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001202.html (.pdf with colours) 2 Expanded proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001310.html (.pdf with colours)

On Mon, Jun 18, 2018 at 1:30 AM, Corwin, Philip <pcorwin@verisign.com> wrote:

Paul:

With all respect, in regard to your statement, “I have shown very clearly why the IGOs are never entitled to immunity after they have chosen to initiate proceedings in ANY forum”, and without even delving into the quality of your analysis, the fact that you believe an IGO would never succeed in an immunity defence in a judicial appeal from a UDRP filed by the losing registrant would not prevent any judge in any court from finding to the contrary and dismissing the case. The disagreement within this working group is over what should happen in the event of that rare but nonetheless possible scenario.

Prof. Swaine was asked to inform us as to how a court would deal with such an immunity claim and the likely response from plaintiff domain registrant that the IGO had waived its immunity by filing a UDRP with knowledge of the mutual jurisdiction clause. His memo discussed the different analytical approaches that courts employ as well as the interplay with other factors, such as national laws addressing sovereign immunity. As Petter noted, he concluded that many courts would determine that immunity had been waived, but that case dismissal by some courts could not be ruled out.

The Swaine memo does not dictate any particular policy outcome within this WG, and it can likely be cited by those with differing views on the key issue before us. It informed our consideration of the questions before us and should be included within the final report as a reference point, and only as that. If you think anything in it is wrong you are free to include that in a minority statement.

Philip

Philip S. Corwin

Policy Counsel

VeriSign, Inc.

12061 Bluemont Way [maps.google.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Reston, VA 20190

703-948-4648/Direct

571-342-7489/Cell

*"Luck is the residue of design" -- Branch Rickey*

*From:* Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org] *On Behalf Of *Paul Tattersfield *Sent:* Sunday, June 17, 2018 2:55 PM *To:* petter.rindforth@fenixlegal.eu *Cc:* gnso-igo-ingo-. <gnso-igo-ingo-crp@icann.org> *Subject:* [EXTERNAL] Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus

Dear Petter,

The problem is the issue I am raising is overarching – I have shown very clearly why the IGOs are never entitled to immunity after they have chosen to initiate proceedings in ANY forum. I have also shown very precisely where Swaine went wrong in his reasoning.

Petter wrote: *“And I cannot see that Prof Swaine clearly states that IGO’s have the right to refer to their immunity. Instead, he states several times that the fact that an IGO has accepted a URS or UDRP case, is also likely to be seen as a waiver of their immunity. This seems especially related to UN: …”*

This misses the point the IGOs are choosing to initiate proceedings. Professor Swaine has analysed the scenario where an IGO is defending an initial action and then assumed incorrectly that any immunity rights enjoyed where an IGO is defending an action can be “transferred/allocated/applied” to the scenario where an IGO brings an action as the plaintiff (or claimant). When the IGO is the initial plaintiff (or claimant) it is NEVER entitled to jurisdictional immunity.

I have responded to all of Mary’s points in this thread and in more detail to the other thread where Paul K. supported my concerns and David drew attention to the United Nations Convention on Jurisdictional Immunities of States and Their Property treaty.

Further I have reached out to as many people as possible inviting them to refute my reasoning and so far no one has been able to show how I am even slightly wrong including people who have represented IGO interests.

Please show me how my proof is anyway wrong….

Yours sincerely,

Paul.

Original proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001202.html (.pdf with colours)

Expanded proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001310.html (.pdf with colours)

On Sun, Jun 17, 2018 at 5:29 PM, Petter Rindforth < petter.rindforth@fenixlegal.eu> wrote:

Dear Paul and WG Members,

As you all know, we had a call on February 16, 201*6* to discuss Prof Swaine’s memo, and it was further discussed during 2016. I also tried to see from your (Paul) e-mails of December 2016 (especially of December 14, 2016), when we discussed the details of our Draft Initial Report that Mary had sent to our WG, but I could not find any specific note there by you on the report, other than suggestions to fix some typos in our DIR.

Prof Swaine’s memo and report is in fact a part of our work and report, to refer to. And I cannot see that Prof Swaine clearly states that IGO’s have the right to refer to their immunity. Instead, he states several times that the fact that an IGO has accepted a URS or UDRP case, is also likely to be seen as a waiver of their immunity. This seems especially related to UN:

“Article 2(2) of the General Convention, the UN’s absolute immunity from legal process (other than relative to execution) may be expressly waived in particular cases. National law may also resolve the matter. For example, the IOIA provides relevant IGOs with immunity (on the same terms as afforded states) “except to the extent that such organizations may expressly waive their immunity for the purpose of any proceedings or by the terms of any contract.”

What Prof Swaine however also points out, is the fact that all national law worldwide is not clear, and further that it is also up to each national court to decide to accept immunity or not, and especially IGO's that are not UN related has not the same exact position.

His conclusion was that the topic is not 100% clear (which ofcourse IGO's does not agree upon, as the same with you - however with two completely different views).

Option 3 has covered such possible situation, and made sure that also in (possible rare) cases where a national court accept immunity, the domain holder can at least have possibility to get the case decided by arbitration. (= *This was my short personal note, knowing that the majority of the WG does not agree with establishing such solution*).

*To summarize:*

We have Prof. Swaine’s report to refer to and that has for long time been a part of, and reference, related to our full report.

Paul, I appreciate your work with comments, and recommend that you prepare a Minority Statement in regard to the Swaine memo.

Also, a reminder to other WG members that support Options with no majority from the WG, please prepare your Minority Statements.

*Finally:*

Please focus on our Final Report and keep the suggestions within our WG mailing list. We are close to make a conclusion on each Recommendation and Option. It is better for us all to effectively conclude our work now in a friendly manner, and create our Final Report, that can then be further discussed by others.

Best regards,

Petter

--

Petter Rindforth, LL M

Fenix Legal KB

Stureplan 4c, 4tr

114 35 Stockholm

Sweden

Fax: +46(0)8-4631010

Direct phone: +46(0)702-369360

E-mail: petter.rindforth@fenixlegal.eu

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Thank you

15 juni 2018 13:28:59 +02:00, skrev Paul Tattersfield <gpmgroup@gmail.com

...

:

Staff directs your attention to those parts of the memo where Professor Swaine writes as follows (emphasis added):

“ …the situation raises at least two distinct immunity issues. The first is whether, in principle, an IGO would enjoy immunity from judicial process with respect to name-related rights it might assert in the UDRP proceedings. *The answer depends on whether jurisdiction in which the case arises would apply an absolute, functional, or restrictive immunity approach to the IGO in question. That may be hard to predict*.

Wrong – Immunity is only a defence where an IGO is a defendant NOT a claimant. In the initial claim the IGO is the claimant whether it be a UDRP claim or a judicial claim.

In the United States, for example, unless an IGO benefits from broader treaty protections—as the United Nations, but not its specialized agencies, does, because the United States is only party to a treaty governing the former’s immunity—the question is addressed by the International Organizations Immunities Act (the IOIA), but some courts interpret the statute as establishing absolute immunity and others view it as establishing restrictive immunity only. The answer is a bit more straightforward elsewhere, and other states tend to favor either an absolute or a functional approach. *The choice among these approaches would be material.*

Yes immunity is complex, very complex, but it is not relevant because the IGO is the initiating the claim.

If an IGO is entitled to absolute immunity, it would in principle be protected from a suit of the kind in question, and probably under a functional approach as well—because an IGO’s protection of its name is likely to be deemed part of its functions. Immunity is less likely under a restrictive approach, which might regard this as more akin to trademark-related activity that is commercial in character.

*The second, more relevant, question is whether—in light of an IGO’s assent to Mutual Jurisdiction, by virtue of its initiation of UDRP proceedings (or its registration of a domain name)—its immunity remains. Here, the more likely answer is that it would not.*

Wrong, the mutual jurisdiction clause is a separate very high hurdle in a litigation strategy for an IGO. There is no immunity to remain – see above.

IGOs are capable of waiving their immunity from suit, and if they do so, they may no longer interpose immunity as a defense if another party commences a judicial action falling within the scope of that waiver. The grant of Mutual Jurisdiction should establish such a waiver, just as it would for a state entity otherwise entitled to immunity. This waiver would be construed narrowly, but it would likely permit proceeding against an IGO in at least some domestic courts.

*The overall answer, then, is contingent.*

Wrong – no it isn’t contingent there is no immunity to defend – see above

If there were no Mutual Jurisdiction clause, an IGO might be entitled to immunity to judicial process; if, on the other hand, the Mutual Jurisdiction clause were maintained, as in the status quo, the IGO’s immunity is less germane because it would have been waived. Equitable considerations might influence any judicial analysis …

Accordingly, an IGO complainant will have consented to judicial proceedings if a losing respondent wishes to challenge a cancellation or

—in a jurisdiction that the IGO will have selected, but from limited choices that the registrant can craft through its choice of registrar and its registering address …

*How matters unfold from that point will depend on national law. *This is a truism but is not relevant because there is no immunity to defend

*In short, the Mutual Jurisdiction concession means that certain IGOs will have agreed to the possibility of a judicial process, *

That’s right - that’s what the mutual jurisidiction clause is for, That is how it should be. If you make an allegation and ask a forum to rule on it to you have to be prepared to defend the allegation including counterclaims

* notwithstanding any immunity to which they otherwise would be entitled* .”

Wrong – there isn’t any immunity to defend – see above

As such, Professor Swaine seems to have acknowledged that, in many instances where a losing registrant files suit against a prevailing IGO in a national court, the court is likely to rule that the IGO will have waived its immunity. He also points out that this is *not* necessarily always the case as it may depend on the approach that national court takes toward the doctrine of IGO jurisdictional immunity. As staff has noted elsewhere, there is no single, universal, unified principle that determines the result across all national courts; and there is no single international treaty that applies to all IGOs and to which all states are party.

Thus, Professor Swaine’s expert legal opinion seems to us to be saying that while it is likely that in many jurisdictions an IGO will *not* succeed in claiming immunity from jurisdiction, this is not to be assumed as a certainty in all jurisdictions globally. It may be a rare case that an IGO succeeds, but it is at least a possibility in a few jurisdictions.

We trust this is sufficiently clear.

If you want to challenge my proof you need show in the text which I have included again below for completeness why I am wrong not quote from the report which based on the errors I am alleging.

Looking at what Professor Swaine said:

*“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**.”*

I think we can all agree that; initiating proceedings waives immunity including counterclaims.

*“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**.” *

I think we can all agree that; if a TM owner starts proceedings to acquire a domain which an IGO has registered then an IGO would be entitled to use jurisdictional immunity to prevent a hearing taking place.

*“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”*

I think we can all agree that; the working group has not and will not consider the case where a TM owner starts proceedings against an IGO.

*Here’s the problem*

What Professor Swaine has done is say well he’s isolated a situation where an IGO would be entitled to claim an immunity defence absent UDRP so now he’s good to go for the rest of his report on immunity.

Wrong.

Just because Professor Swaine has identified a situation where an IGO is entitled to claim an immunity defence doesn’t mean he can then apply it to other situations

*. *

*Proof *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.

As the UDRP is an administrative procedure to help take less complex cases out of the judicial system if UDRP is to afford the same protections as any other forum then UDRP needs to take into account both scenarios.

(a) A TM owner seeks to acquire a domain which an IGO has registered by bringing a UDRP (b) An IGO seeks to acquire a domain which a domain registrant has registered by bringing a UDRP

*Let’s confirm what is happening with colours:* Blue = An immunity defence is good to go Red = An immunity defence is a no-no

Applying the logic Professor Swaine has used we have

(a) A TM owner seeks to acquire a domain which an IGO has registered by bringing a UDRP (b) An IGO seeks to acquire a domain which a domain registrant has registered by bringing a UDRP

What Professor Swaine is asking the reader to accept is the right to an immunity defence can be applied to both (a) and (b) scenarios and this can not be right because

Absent UDRP we have

(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

So the correct position at UDRP is

(a) A TM owner seeks to acquire a domain which an IGO has registered by bringing a UDRP (b) An IGO seeks to acquire a domain which a domain registrant has registered by bringing a UDRP

Quite simply the IGOs are never entitled to jurisdictional immunity after initiating proceedings.

On Fri, Jun 15, 2018 at 11:02 AM, Mary Wong <mary.wong@icann.org> wrote:

Hello again Paul and everyone,

Staff directs your attention to those parts of the memo where Professor Swaine writes as follows (emphasis added):

“ …the situation raises at least two distinct immunity issues. The first is whether, in principle, an IGO would enjoy immunity from judicial process with respect to name-related rights it might assert in the UDRP proceedings. *The answer depends on whether jurisdiction in which the case arises would apply an absolute, functional, or restrictive immunity approach to the IGO in question. That may be hard to predict*. In the United States, for example, unless an IGO benefits from broader treaty protections—as the United Nations, but not its specialized agencies, does, because the United States is only party to a treaty governing the former’s immunity—the question is addressed by the International Organizations Immunities Act (the IOIA), but some courts interpret the statute as establishing absolute immunity and others view it as establishing restrictive immunity only. The answer is a bit more straightforward elsewhere, and other states tend to favor either an absolute or a functional approach. *The choice among these approaches would be material.* If an IGO is entitled to absolute immunity, it would in principle be protected from a suit of the kind in question, and probably under a functional approach as well—because an IGO’s protection of its name is likely to be deemed part of its functions. Immunity is less likely under a restrictive approach, which might regard this as more akin to trademark-related activity that is commercial in character.

*The second, more relevant, question is whether—in light of an IGO’s assent to Mutual Jurisdiction, by virtue of its initiation of UDRP proceedings (or its registration of a domain name)—its immunity remains. Here, the more likely answer is that it would not.* IGOs are capable of waiving their immunity from suit, and if they do so, they may no longer interpose immunity as a defense if another party commences a judicial action falling within the scope of that waiver. The grant of Mutual Jurisdiction should establish such a waiver, just as it would for a state entity otherwise entitled to immunity. This waiver would be construed narrowly, but it would likely permit proceeding against an IGO in at least some domestic courts.

*The overall answer, then, is contingent.* If there were no Mutual Jurisdiction clause, an IGO might be entitled to immunity to judicial process; if, on the other hand, the Mutual Jurisdiction clause were maintained, as in the status quo, the IGO’s immunity is less germane because it would have been waived. Equitable considerations might influence any judicial analysis …

Accordingly, an IGO complainant will have consented to judicial proceedings if a losing respondent wishes to challenge a cancellation or

—in a jurisdiction that the IGO will have selected, but from limited choices that the registrant can craft through its choice of registrar and its registering address … *How matters unfold from that point will depend on national law.*

*In short, the Mutual Jurisdiction concession means that certain IGOs will have agreed to the possibility of a judicial process, notwithstanding any immunity to which they otherwise would be entitled*.”

As such, Professor Swaine seems to have acknowledged that, in many instances where a losing registrant files suit against a prevailing IGO in a national court, the court is likely to rule that the IGO will have waived its immunity. He also points out that this is *not* necessarily always the case as it may depend on the approach that national court takes toward the doctrine of IGO jurisdictional immunity. As staff has noted elsewhere, there is no single, universal, unified principle that determines the result across all national courts; and there is no single international treaty that applies to all IGOs and to which all states are party.

Thus, Professor Swaine’s expert legal opinion seems to us to be saying that while it is likely that in many jurisdictions an IGO will *not* succeed in claiming immunity from jurisdiction, this is not to be assumed as a certainty in all jurisdictions globally. It may be a rare case that an IGO succeeds, but it is at least a possibility in a few jurisdictions.

We trust this is sufficiently clear.

Best regards,

Mary & Steve

*From: *Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org> on behalf of Paul Tattersfield <gpmgroup@gmail.com> *Date: *Friday, June 15, 2018 at 17:17 *To: *"petter.rindforth@fenixlegal.eu" <petter.rindforth@fenixlegal.eu> *Cc: *"gnso-igo-ingo-." <gnso-igo-ingo-crp@icann.org> *Subject: *Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus

Dear Petter,

On Swaine I do not believe what you are proposing is acceptable. This isn’t some minor matter for a minority opinion Swaine underpins the whole of the working group’s final report. I have shown very clearly in plain language how Swaine introduces horrendously complex issues which have absolutely no relevance whatsoever to what the working group has been asked to consider.

Both Paul Keating & George Kirikos have both indicated they share my concerns that Swaine can never be considered correct on this matter and in the alternative no one has voiced any dissent to the expanded proof I outlined. The only person to offer any comments has been Mary and she did not address the core issue I was raising and has chosen so far not to dispute or comment further on the expanded proof. (For completeness Phillip said he was proud of Swaine)

You have chosen not to comment too. Do you also still personally believe what I am saying is wrong and that Swaine can possibly be correct in his findings?

If so please can you please explain to the working group how Swaine can possibly be correct because the report fails to adequately acknowledge or address the indisputable fact that IGOs automatically waive immunity every time they commence a legal proceeding?

Yours sincerely,

Paul.

Expanded proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001310.html (.pdf with colours)

Original proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001202.html (.pdf with colours)

On Fri, Jun 15, 2018 at 8:29 AM, Petter Rindforth < petter.rindforth@fenixlegal.eu> wrote:

Dear Working Group members,

In light of the need for us to complete our work, in my role as the Chair, I ask you all to now focus on the task at hand, which is to finalize agreement on the appropriate consensus levels for each recommendation. In this regard, please note the following:

(1) I have put the most current, likely consensus levels here in this message and will appreciate further feedback;

(2) we need now also to focus on discussing where we want to end up in relation to Option 1 and Option 4, which may be mutually incompatible; and

(3) where you have made a suggestion on any specific point/topic but it has not received support, I ask that you consider filing a Minority Statement now rather than continue to argue the point.

On consensus levels, and based on our call earlier this week and the more recent list discussions:

*Recommendation 1:* Full Consensus (with additional text in the rationale about why this recommendation was phrased to cover INGOs, and noting that IGOs are covered by the remaining recommendations which nevertheless do not require changing the UDRP or URS beyond what may be necessary to effectuate those additional recommendations – I note that this last caveat may of course not be necessary if the group reaches consensus on Option 4 versus Option 1, as we are currently discussing).

*Recommendation 2: *Consensus (with slight amendment to the recommendation text to reflect “trademark or service mark rights” where we mention “unregistered” rights).

*Recommendation 3:* Consensus

*Recommendation 4: *Strong Support but Significant Opposition (with additional text in the rationale to note that several members are strongly against subsidies of any sort).

*Recommendation 5/Options 1-6* (which we can renumber/title in the Final Report to avoid confusion):

Option 1 – Consensus or Strong Support but Significant Opposition

Option 2 – No Consensus/Divergence

Option 3 – Minority View (Consensus Against)

Option 4 – Consensus or Strong Support but Significant Opposition

Option 5 – No Consensus/Divergence

Option 6 – Strong Support but Significant Opposition

*On reconciling Options 1 & 4:*

If, from the above tentative consensus listing, the group agrees that either Option 1 or Option 4 has sufficient consensus (but not the other), there will not be a conflict. Please therefore weigh in with your thoughts on the current consensus levels for these two options. I have seen some informal notes from WG members that support both Option 1 and Option 4, clarifying that they prefer Option 1 before Option 4, but please make such statements/clarification again.

Similarly, if we end up with Strong Support but Significant Opposition for both, we can just transmit both to the Council without the need for further discussion (but possibly with text that can include implementation guidance for Option 1).

For Option 1 – this will require a change to the UDRP and URS, so if this is the final consensus position, staff will add draft text to the report with implementation guidance.

*On Minority Statements:*

1) As Susan suggested on the call, Paul Tattersfield may want to consider filing a Minority Statement in regard to the Swaine memo, as despite several emails on the topic over the last month or two and on the Working Group calls, there has not been much support to remove the memo from the report.

2) Similarly, those who support recommendations/options that end up as either No Consensus/Divergence or Minority View should consider preparing Minority Statements (as I believe Phil has already indicated he may do).

Thank you to all who are contributing to a productive discussion. I ask that we refrain from questioning others’ credibility or credentials, stop bringing up old threads and posts again, and focus on getting to the final consensus. We had a good, friendly and effective call this Tuesday – let us continue that way also online!

Best regards,

Petter

--

Petter Rindforth, LL M

Fenix Legal KB

Stureplan 4c, 4tr

114 35 Stockholm

Sweden

Fax: +46(0)8-4631010

Direct phone: +46(0)702-369360

E-mail: petter.rindforth@fenixlegal.eu

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Thank you

_______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp

_______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp

I agree, it is not an appeal. To me, the word 'appeal' implies that there was an underlying competent court and decision. But UDRP panelists are not judges, and some of them are not particularly competent or consistent. They get paid about $300 for a decision, which often involves property worth tens or hundreds of thousands of US dollars. Accordingly, US courts typically give no deference to UDRP decisions. That said, the only way to challenge a UDRP decision is to file a separate and independent action in a court chosen by the Complainant (and/or domain registrar), within ten days of the decision. So I can see why some would view such an action superficially as an "appeal." But in fact the legal standards will be different than in the UDRP. For just one example, under the ACPA the subject mark must be 'distinctive', while there is no such requirement under the UDRP. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.com On Thu, Jun 21, 2018 at 9:08 AM, Corwin, Philip via Gnso-igo-ingo-crp < gnso-igo-ingo-crp@icann.org> wrote:

No Jay, I would not.

It is not an appeal because it is not a review of whether the original UDRP decision was correct. It is a new and independent action to determine whether the domain is or is not in violation of applicable law in the jurisdiction where the case was filed. The UDRP is relevant only on the question of whether the IGO waived immunity from a judicial action brought in the wake of the UDRP decision.

The fact that there is a single point of connection between the UDRP and the lawsuit does not transform the latter into an appeal, in my opinion.

Philip S. Corwin

Policy Counsel

VeriSign, Inc.

12061 Bluemont Way Reston, VA 20190

703-948-4648/Direct

571-342-7489/Cell

*"Luck is the residue of design" -- Branch Rickey*

*From:* Jay Chapman [mailto:jay@digimedia.com] *Sent:* Thursday, June 21, 2018 11:58 AM *To:* Corwin, Philip <pcorwin@verisign.com> *Cc:* mary.wong@icann.org; gpmgroup@gmail.com; gnso-igo-ingo-crp@icann.org *Subject:* [EXTERNAL] Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus

Thanks, Phil.

Wouldn't you agree that, regardless of the term used to describe, it is an appeal in *substance* - as the registrant's *property* is already subject to be taken from the registrant? De novo simply refers to the standard of review - the court will take a fresh look without deference to the UDRP.

Sincerely,

Jay Chapman

* <http://www.digimedia.com>*

On Thu, Jun 21, 2018 at 10:24 AM, Corwin, Philip via Gnso-igo-ingo-crp < gnso-igo-ingo-crp@icann.org> wrote:

Thanks Mary.

In regard to this –

*The fundamental point of substantive [dis]agreement seems to be whether it is the IGO that can be considered to have initiate the legal proceedings when it first files a complaint under the UDRP or URS. Our understanding of Paul’s position is that he believes this to be the case, and as such the IGO must necessarily be considered to have waived any jurisdictional immunity to which it may otherwise be entitled.*

*Our understanding, however, of legal process and of what we believe to have been Professor Swaine’s assumption, is that this may not be the case.*

I would suggest that it is absolutely not the case. While follow-up judicial filings by UDRP-losing registrants are loosely referred to as an “appeal”, it is in fact well understood that they are de novo proceedings that are decided independently of the prior DRP on the basis of relevant statutes and case law, not the UDRP standard.

While I can’t possibly speak to all jurisdictions, in the US the registrant would file the action under the ACPA, the IGO would then seek dismissal on grounds of immunity, and the registrant would then present evidence against that motion based upon a claim that the IGO had waived immunity when it brought the UDRP action with knowledge of the mutual jurisdiction provision. The court would then decide whether to dismiss the case for lack of jurisdiction over one of the parties, or let it proceed based on prior waiver of immunity.

The court case is an independent judicial action initiated by the domain registrant, with UDRP policy staying effect of the prior decision until the court case is decided or dismissed.

Philip S. Corwin

Policy Counsel

VeriSign, Inc.

12061 Bluemont Way Reston, VA 20190

703-948-4648/Direct

571-342-7489/Cell

*"Luck is the residue of design" -- Branch Rickey*

*From:* Mary Wong [mailto:mary.wong@icann.org] *Sent:* Thursday, June 21, 2018 11:08 AM *To:* Paul Tattersfield <gpmgroup@gmail.com>; Corwin, Philip < pcorwin@verisign.com> *Cc:* gnso-igo-ingo-crp@icann.org *Subject:* [EXTERNAL] Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus

Apologies, we of course meant “fundamental point of DISAGREEMENT”. Thank you.

*From: *Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org> on behalf of Mary Wong <mary.wong@icann.org> *Date: *Thursday, June 21, 2018 at 11:05 *To: *Paul Tattersfield <gpmgroup@gmail.com>, "Corwin, Philip" < pcorwin@verisign.com> *Cc: *"gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> *Subject: *Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus

Hello everyone,

As Paul had requested in a previous message that staff not merely reproduce excerpts from Professor Swaine’s memo, please allow us to provide a response. The fundamental point of substantive agreement seems to be whether it is the IGO that can be considered to have initiate the legal proceedings when it first files a complaint under the UDRP or URS. Our understanding of Paul’s position is that he believes this to be the case, and as such the IGO must necessarily be considered to have waived any jurisdictional immunity to which it may otherwise be entitled.

Our understanding, however, of legal process and of what we believe to have been Professor Swaine’s assumption, is that this may *not* be the case. The UDRP and URS are mandatory administrative proceedings that are separate from, and independent of, the judicial process. As such, when a losing respondent files suit in a national court, it is up to that court to determine whether and how to give any deference to the UDRP under its national laws (as well as consider if, to the extent the IGO decides to claim jurisdictional immunity from that court, such an immunity claim will be permitted under its national laws). The court filing by the losing respondent is not a direct appeal from the UDRP panel decision, and thus not a continuation of the UDRP proceeding but may be considered a separate legal filing.

While many jurisdictions may indeed rule that an IGO, having agreed to Mutual Jurisdiction, will therefore have given up any immunity, this is not necessarily or universally the case (as Professor Swaine acknowledged). To give a specific example, we believe that decisions in civil cases in Korean courts concerning enforcement of UDRP decisions are decided under the relevant Korean domestic laws based on Korean Supreme Court jurisprudence.

Best regards,

Mary & Steve

*From: *Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org> on behalf of Paul Tattersfield <gpmgroup@gmail.com> *Date: *Thursday, June 21, 2018 at 10:24 *To: *"Corwin, Philip" <pcorwin@verisign.com> *Cc: *"gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> *Subject: *Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus

You claim you have proven in a single page that a 25-page analysis of the issue of IGO immunity in the context of judicial appeal of a UDRP decision, written by a professor of and expert in international law, is wrong. I disagree.

Its competence not office that matters, one of the big advantages of the multistakeholder model is it can allow The Emperor’s New Clothes situations to come to light that would otherwise remain clothed in expert opinion. It is not helpful to simply say I am wrong. You should at least try to show why what I have said is wrong, as I have clearly, concisely and precisely done with the Swaine errors.

I’ll reply to each of the other points you raise, but it does rather play into a ruse to refuse to address the core issue and everyone then gets obstructed and deffered to anything but the question asked. Which then of course opens up the opportunity for a myriad of other tangential but ultimately fruitless lines of engagement thereby helping avoid the core issue for even longer.

There is no such thing as proof in application of regulation and law to specific fact situations. The law is not black and white but many shades of grey. The law is not a math equation with one single answer that can be proven, or a science experiment that can be replicated to prove a theorem. That is why every modern judicial system has a supreme judicial body to resolve the inconsistencies between lower court decisions applying the same law to similar facts. And even then, the “correct” answer can be determined by a single vote, as evidenced by the many 5-4 split decisions of the US Supreme Court.

We are here to make an existing framework more equitable not litigate it. What we are supposed to be doing is drafting the equivalence of statute. We need to be clear and concise, well intentioned and precise.

As I’ve already pointed out, the Swaine memo does not dictate any particular policy recommendation outcome, and parts of it can be relied upon by proponents of option 1 who believe that the UDRP’s reference to mutual jurisdiction trumps all other considerations. I respectfully dissent from that position and support option 3 because I believe that it is important to restrain ICANN from attempting to curb the legal rights of any party to a UDRP, registrant or IGO.

The problem is Swaine gives the impression it is relevant to what the working group has been asked to consider – whereas really, its irrelevant complexity confuses rather than clarifies.

I also support option 3 because I believe it has some chance of becoming ICANN policy and resolving this matter, while I cannot envision option 1 ever being approved by the ICANN Board even if it is passed forward from Council.

In your former role as co-chair this is called bias. This is one of the main reasons why this working group reached the point where it almost collapsed and we now have a significantly weaker final report which was predominantly drafted with the intention of supporting your preferred option. This is very bad because it fails to fully articulate the sound reasons behind the final consensus positions.

The Swaine memo is an informed and nuanced discussion of the central issue before this WG. It should be retained in our Final Report to inform Council and the Board of the complex legal issues relevant to the matter of IGO access to CRP, both when considering this WG’s Final Report and later on -- when this issue is revisited after it becomes clear that we have not produced a policy option acceptable to the GAC and IGOs or capable of achieving Board approval.

The multistakeholder working group model is about building and supporting consensus and it isn’t helpful when those leading a group will only contribute positively when it furthers their own agenda. We could easily have easily improved process to help IGOs & INGOs and at the same time improved it for registrants too, instead you chose to lead the working group on path to try and force through at all costs the ridiculous #3. - Very sad and not what the multistakeholder model was ever intended for.

Prove me wrong show me why my proof is wrong :-)

Original proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001202.html (.pdf with colours) Expanded proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001310.html (.pdf with colours)

On Tue, Jun 19, 2018 at 1:58 PM, Corwin, Philip <pcorwin@verisign.com> wrote:

Paul:

You claim you have proven in a single page that a 25-page analysis of the issue of IGO immunity in the context of judicial appeal of a UDRP decision, written by a professor of and expert in international law, is wrong. I disagree.

There is no such thing as proof in application of regulation and law to specific fact situations. The law is not black and white but many shades of grey. The law is not a math equation with one single answer that can be proven, or a science experiment that can be replicated to prove a theorem. That is why every modern judicial system has a supreme judicial body to resolve the inconsistencies between lower court decisions applying the same law to similar facts. And even then, the “correct” answer can be determined by a single vote, as evidenced by the many 5-4 split decisions of the US Supreme Court.

As I’ve already pointed out, the Swaine memo does not dictate any particular policy recommendation outcome, and parts of it can be relied upon by proponents of option 1 who believe that the UDRP’s reference to mutual jurisdiction trumps all other considerations. I respectfully dissent from that position and support option 3 because I believe that it is important to restrain ICANN from attempting to curb the legal rights of any party to a UDRP, registrant or IGO. I also support option 3 because I believe it has some chance of becoming ICANN policy and resolving this matter, while I cannot envision option 1 ever being approved by the ICANN Board even if it is passed forward from Council.

The Swaine memo is an informed and nuanced discussion of the central issue before this WG. It should be retained in our Final Report to inform Council and the Board of the complex legal issues relevant to the matter of IGO access to CRP, both when considering this WG’s Final Report and later on -- when this issue is revisited after it becomes clear that we have not produced a policy option acceptable to the GAC and IGOs or capable of achieving Board approval.

Philip

Philip S. Corwin

Policy Counsel

VeriSign, Inc.

12061 Bluemont Way [maps.google.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Reston, VA 20190

703-948-4648/Direct

571-342-7489/Cell

*"Luck is the residue of design" -- Branch Rickey*

*From:* Paul Tattersfield [mailto:gpmgroup@gmail.com] *Sent:* Tuesday, June 19, 2018 3:35 AM *To:* Corwin, Philip <pcorwin@verisign.com> *Cc:* petter.rindforth@fenixlegal.eu; gnso-igo-ingo-crp@icann.org

*Subject:* [EXTERNAL] Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus

With all respect, in regard to your statement, “I have shown very clearly why the IGOs are never entitled to immunity after they have chosen to initiate proceedings in ANY forum”,

Yes that’s right.

and without even delving into the quality of your analysis, the fact that you believe an IGO would never succeed in an immunity defence in a judicial appeal from a UDRP filed by the losing registrant would not prevent any judge in any court from finding to the contrary and dismissing the case.

Wrong - you are not understanding what I wrote and then attributing your own conclusion to me. Go read my proof and show me where I am wrong I don’t believe you can.

The disagreement within this working group is over what should happen in the event of that rare but nonetheless possible scenario.

Outside of the original co-chairs there is little disagreement, you should have the grace to respect that position.

Prof. Swaine was asked to inform us as to how a court would deal with such an immunity claim and the likely response from plaintiff domain registrant that the IGO had waived its immunity by filing a UDRP with knowledge of the mutual jurisdiction clause.

It is only the forum that makes the domain registrant a “plaintiff” on a claim that an IGO chose to initiate. That is the quirk of process. It is still the same principle matter. Whether the IGO chose to file a URDP or judicial proceedings the IGO is choosing to INTIATE proceedings.

His memo discussed the different analytical approaches that courts employ as well as the interplay with other factors, such as national laws addressing sovereign immunity. As Petter noted, he concluded that many courts would determine that immunity had been waived, but that case dismissal by some courts could not be ruled out.

The huge mistake Professor Swaine made was to analyze in great depth the scenario where an IGO is defending a claim and mistakenly assume that any rights to jurisdictional immunity there could be “transferred/applied” to the scenario where an IGO is initiating a claim.

My proof pinpoints very precisely where and how he made that error in his reasoning on page 8 of his memo.

The Swaine memo does not dictate any particular policy outcome within this WG, and it can likely be cited by those with differing views on the key issue before us. It informed our consideration of the questions before us and should be included within the final report as a reference point, and only as that. If you think anything in it is wrong you are free to include that in a minority statement.

Swaine can never be relevant because the working group has not considered the case where an IGO is defending a UDRP brought against it by a TM owner. Swaine’s complexity confuses rather than clarifies and if you really must include it stick it in your minority report – it’s junk

It’s quite simple Phillip go and read my proof (it’s less than a page) and if you believe it is wrong show me where it is wrong. I don’t believe you can that is why you are squandering everyone’s time (again).

1 Original proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001202.html (.pdf with colours) 2 Expanded proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001310.html (.pdf with colours)

On Mon, Jun 18, 2018 at 1:30 AM, Corwin, Philip <pcorwin@verisign.com> wrote:

Paul:

With all respect, in regard to your statement, “I have shown very clearly why the IGOs are never entitled to immunity after they have chosen to initiate proceedings in ANY forum”, and without even delving into the quality of your analysis, the fact that you believe an IGO would never succeed in an immunity defence in a judicial appeal from a UDRP filed by the losing registrant would not prevent any judge in any court from finding to the contrary and dismissing the case. The disagreement within this working group is over what should happen in the event of that rare but nonetheless possible scenario.

Prof. Swaine was asked to inform us as to how a court would deal with such an immunity claim and the likely response from plaintiff domain registrant that the IGO had waived its immunity by filing a UDRP with knowledge of the mutual jurisdiction clause. His memo discussed the different analytical approaches that courts employ as well as the interplay with other factors, such as national laws addressing sovereign immunity. As Petter noted, he concluded that many courts would determine that immunity had been waived, but that case dismissal by some courts could not be ruled out.

The Swaine memo does not dictate any particular policy outcome within this WG, and it can likely be cited by those with differing views on the key issue before us. It informed our consideration of the questions before us and should be included within the final report as a reference point, and only as that. If you think anything in it is wrong you are free to include that in a minority statement.

Philip

Philip S. Corwin

Policy Counsel

VeriSign, Inc.

12061 Bluemont Way [maps.google.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Reston, VA 20190

703-948-4648/Direct

571-342-7489/Cell

*"Luck is the residue of design" -- Branch Rickey*

*From:* Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org] *On Behalf Of *Paul Tattersfield *Sent:* Sunday, June 17, 2018 2:55 PM *To:* petter.rindforth@fenixlegal.eu *Cc:* gnso-igo-ingo-. <gnso-igo-ingo-crp@icann.org> *Subject:* [EXTERNAL] Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus

Dear Petter,

The problem is the issue I am raising is overarching – I have shown very clearly why the IGOs are never entitled to immunity after they have chosen to initiate proceedings in ANY forum. I have also shown very precisely where Swaine went wrong in his reasoning.

Petter wrote: *“And I cannot see that Prof Swaine clearly states that IGO’s have the right to refer to their immunity. Instead, he states several times that the fact that an IGO has accepted a URS or UDRP case, is also likely to be seen as a waiver of their immunity. This seems especially related to UN: …”*

This misses the point the IGOs are choosing to initiate proceedings. Professor Swaine has analysed the scenario where an IGO is defending an initial action and then assumed incorrectly that any immunity rights enjoyed where an IGO is defending an action can be “transferred/allocated/applied” to the scenario where an IGO brings an action as the plaintiff (or claimant). When the IGO is the initial plaintiff (or claimant) it is NEVER entitled to jurisdictional immunity.

I have responded to all of Mary’s points in this thread and in more detail to the other thread where Paul K. supported my concerns and David drew attention to the United Nations Convention on Jurisdictional Immunities of States and Their Property treaty.

Further I have reached out to as many people as possible inviting them to refute my reasoning and so far no one has been able to show how I am even slightly wrong including people who have represented IGO interests.

Please show me how my proof is anyway wrong….

Yours sincerely,

Paul.

Original proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001202.html (.pdf with colours)

Expanded proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001310.html (.pdf with colours)

On Sun, Jun 17, 2018 at 5:29 PM, Petter Rindforth < petter.rindforth@fenixlegal.eu> wrote:

Dear Paul and WG Members,

As you all know, we had a call on February 16, 201*6* to discuss Prof Swaine’s memo, and it was further discussed during 2016. I also tried to see from your (Paul) e-mails of December 2016 (especially of December 14, 2016), when we discussed the details of our Draft Initial Report that Mary had sent to our WG, but I could not find any specific note there by you on the report, other than suggestions to fix some typos in our DIR.

Prof Swaine’s memo and report is in fact a part of our work and report, to refer to. And I cannot see that Prof Swaine clearly states that IGO’s have the right to refer to their immunity. Instead, he states several times that the fact that an IGO has accepted a URS or UDRP case, is also likely to be seen as a waiver of their immunity. This seems especially related to UN:

“Article 2(2) of the General Convention, the UN’s absolute immunity from legal process (other than relative to execution) may be expressly waived in particular cases. National law may also resolve the matter. For example, the IOIA provides relevant IGOs with immunity (on the same terms as afforded states) “except to the extent that such organizations may expressly waive their immunity for the purpose of any proceedings or by the terms of any contract.”

What Prof Swaine however also points out, is the fact that all national law worldwide is not clear, and further that it is also up to each national court to decide to accept immunity or not, and especially IGO's that are not UN related has not the same exact position.

His conclusion was that the topic is not 100% clear (which ofcourse IGO's does not agree upon, as the same with you - however with two completely different views).

Option 3 has covered such possible situation, and made sure that also in (possible rare) cases where a national court accept immunity, the domain holder can at least have possibility to get the case decided by arbitration. (= *This was my short personal note, knowing that the majority of the WG does not agree with establishing such solution*).

*To summarize:*

We have Prof. Swaine’s report to refer to and that has for long time been a part of, and reference, related to our full report.

Paul, I appreciate your work with comments, and recommend that you prepare a Minority Statement in regard to the Swaine memo.

Also, a reminder to other WG members that support Options with no majority from the WG, please prepare your Minority Statements.

*Finally:*

Please focus on our Final Report and keep the suggestions within our WG mailing list. We are close to make a conclusion on each Recommendation and Option. It is better for us all to effectively conclude our work now in a friendly manner, and create our Final Report, that can then be further discussed by others.

Best regards,

Petter

--

Petter Rindforth, LL M

Fenix Legal KB

Stureplan 4c, 4tr

114 35 Stockholm

Sweden

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Direct phone: +46(0)702-369360

E-mail: petter.rindforth@fenixlegal.eu

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Thank you

15 juni 2018 13:28:59 +02:00, skrev Paul Tattersfield <gpmgroup@gmail.com

...

:

Staff directs your attention to those parts of the memo where Professor Swaine writes as follows (emphasis added):

“ …the situation raises at least two distinct immunity issues. The first is whether, in principle, an IGO would enjoy immunity from judicial process with respect to name-related rights it might assert in the UDRP proceedings. *The answer depends on whether jurisdiction in which the case arises would apply an absolute, functional, or restrictive immunity approach to the IGO in question. That may be hard to predict*.

Wrong – Immunity is only a defence where an IGO is a defendant NOT a claimant. In the initial claim the IGO is the claimant whether it be a UDRP claim or a judicial claim.

In the United States, for example, unless an IGO benefits from broader treaty protections—as the United Nations, but not its specialized agencies, does, because the United States is only party to a treaty governing the former’s immunity—the question is addressed by the International Organizations Immunities Act (the IOIA), but some courts interpret the statute as establishing absolute immunity and others view it as establishing restrictive immunity only. The answer is a bit more straightforward elsewhere, and other states tend to favor either an absolute or a functional approach. *The choice among these approaches would be material.*

Yes immunity is complex, very complex, but it is not relevant because the IGO is the initiating the claim.

If an IGO is entitled to absolute immunity, it would in principle be protected from a suit of the kind in question, and probably under a functional approach as well—because an IGO’s protection of its name is likely to be deemed part of its functions. Immunity is less likely under a restrictive approach, which might regard this as more akin to trademark-related activity that is commercial in character.

*The second, more relevant, question is whether—in light of an IGO’s assent to Mutual Jurisdiction, by virtue of its initiation of UDRP proceedings (or its registration of a domain name)—its immunity remains. Here, the more likely answer is that it would not.*

Wrong, the mutual jurisdiction clause is a separate very high hurdle in a litigation strategy for an IGO. There is no immunity to remain – see above.

IGOs are capable of waiving their immunity from suit, and if they do so, they may no longer interpose immunity as a defense if another party commences a judicial action falling within the scope of that waiver. The grant of Mutual Jurisdiction should establish such a waiver, just as it would for a state entity otherwise entitled to immunity. This waiver would be construed narrowly, but it would likely permit proceeding against an IGO in at least some domestic courts.

*The overall answer, then, is contingent.*

Wrong – no it isn’t contingent there is no immunity to defend – see above

If there were no Mutual Jurisdiction clause, an IGO might be entitled to immunity to judicial process; if, on the other hand, the Mutual Jurisdiction clause were maintained, as in the status quo, the IGO’s immunity is less germane because it would have been waived. Equitable considerations might influence any judicial analysis …

Accordingly, an IGO complainant will have consented to judicial proceedings if a losing respondent wishes to challenge a cancellation or

—in a jurisdiction that the IGO will have selected, but from limited choices that the registrant can craft through its choice of registrar and its registering address …

*How matters unfold from that point will depend on national law. *This is a truism but is not relevant because there is no immunity to defend

*In short, the Mutual Jurisdiction concession means that certain IGOs will have agreed to the possibility of a judicial process, *

That’s right - that’s what the mutual jurisidiction clause is for, That is how it should be. If you make an allegation and ask a forum to rule on it to you have to be prepared to defend the allegation including counterclaims

* notwithstanding any immunity to which they otherwise would be entitled* .”

Wrong – there isn’t any immunity to defend – see above

As such, Professor Swaine seems to have acknowledged that, in many instances where a losing registrant files suit against a prevailing IGO in a national court, the court is likely to rule that the IGO will have waived its immunity. He also points out that this is *not* necessarily always the case as it may depend on the approach that national court takes toward the doctrine of IGO jurisdictional immunity. As staff has noted elsewhere, there is no single, universal, unified principle that determines the result across all national courts; and there is no single international treaty that applies to all IGOs and to which all states are party.

Thus, Professor Swaine’s expert legal opinion seems to us to be saying that while it is likely that in many jurisdictions an IGO will *not* succeed in claiming immunity from jurisdiction, this is not to be assumed as a certainty in all jurisdictions globally. It may be a rare case that an IGO succeeds, but it is at least a possibility in a few jurisdictions.

We trust this is sufficiently clear.

If you want to challenge my proof you need show in the text which I have included again below for completeness why I am wrong not quote from the report which based on the errors I am alleging.

Looking at what Professor Swaine said:

*“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**.”*

I think we can all agree that; initiating proceedings waives immunity including counterclaims.

*“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**.” *

I think we can all agree that; if a TM owner starts proceedings to acquire a domain which an IGO has registered then an IGO would be entitled to use jurisdictional immunity to prevent a hearing taking place.

*“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”*

I think we can all agree that; the working group has not and will not consider the case where a TM owner starts proceedings against an IGO.

*Here’s the problem*

What Professor Swaine has done is say well he’s isolated a situation where an IGO would be entitled to claim an immunity defence absent UDRP so now he’s good to go for the rest of his report on immunity.

Wrong.

Just because Professor Swaine has identified a situation where an IGO is entitled to claim an immunity defence doesn’t mean he can then apply it to other situations

*. *

*Proof *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.

As the UDRP is an administrative procedure to help take less complex cases out of the judicial system if UDRP is to afford the same protections as any other forum then UDRP needs to take into account both scenarios.

(a) A TM owner seeks to acquire a domain which an IGO has registered by bringing a UDRP (b) An IGO seeks to acquire a domain which a domain registrant has registered by bringing a UDRP

*Let’s confirm what is happening with colours:* Blue = An immunity defence is good to go Red = An immunity defence is a no-no

Applying the logic Professor Swaine has used we have

(a) A TM owner seeks to acquire a domain which an IGO has registered by bringing a UDRP (b) An IGO seeks to acquire a domain which a domain registrant has registered by bringing a UDRP

What Professor Swaine is asking the reader to accept is the right to an immunity defence can be applied to both (a) and (b) scenarios and this can not be right because

Absent UDRP we have

(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

So the correct position at UDRP is

(a) A TM owner seeks to acquire a domain which an IGO has registered by bringing a UDRP (b) An IGO seeks to acquire a domain which a domain registrant has registered by bringing a UDRP

Quite simply the IGOs are never entitled to jurisdictional immunity after initiating proceedings.

On Fri, Jun 15, 2018 at 11:02 AM, Mary Wong <mary.wong@icann.org> wrote:

Hello again Paul and everyone,

Staff directs your attention to those parts of the memo where Professor Swaine writes as follows (emphasis added):

“ …the situation raises at least two distinct immunity issues. The first is whether, in principle, an IGO would enjoy immunity from judicial process with respect to name-related rights it might assert in the UDRP proceedings. *The answer depends on whether jurisdiction in which the case arises would apply an absolute, functional, or restrictive immunity approach to the IGO in question. That may be hard to predict*. In the United States, for example, unless an IGO benefits from broader treaty protections—as the United Nations, but not its specialized agencies, does, because the United States is only party to a treaty governing the former’s immunity—the question is addressed by the International Organizations Immunities Act (the IOIA), but some courts interpret the statute as establishing absolute immunity and others view it as establishing restrictive immunity only. The answer is a bit more straightforward elsewhere, and other states tend to favor either an absolute or a functional approach. *The choice among these approaches would be material.* If an IGO is entitled to absolute immunity, it would in principle be protected from a suit of the kind in question, and probably under a functional approach as well—because an IGO’s protection of its name is likely to be deemed part of its functions. Immunity is less likely under a restrictive approach, which might regard this as more akin to trademark-related activity that is commercial in character.

*The second, more relevant, question is whether—in light of an IGO’s assent to Mutual Jurisdiction, by virtue of its initiation of UDRP proceedings (or its registration of a domain name)—its immunity remains. Here, the more likely answer is that it would not.* IGOs are capable of waiving their immunity from suit, and if they do so, they may no longer interpose immunity as a defense if another party commences a judicial action falling within the scope of that waiver. The grant of Mutual Jurisdiction should establish such a waiver, just as it would for a state entity otherwise entitled to immunity. This waiver would be construed narrowly, but it would likely permit proceeding against an IGO in at least some domestic courts.

*The overall answer, then, is contingent.* If there were no Mutual Jurisdiction clause, an IGO might be entitled to immunity to judicial process; if, on the other hand, the Mutual Jurisdiction clause were maintained, as in the status quo, the IGO’s immunity is less germane because it would have been waived. Equitable considerations might influence any judicial analysis …

Accordingly, an IGO complainant will have consented to judicial proceedings if a losing respondent wishes to challenge a cancellation or

—in a jurisdiction that the IGO will have selected, but from limited choices that the registrant can craft through its choice of registrar and its registering address … *How matters unfold from that point will depend on national law.*

*In short, the Mutual Jurisdiction concession means that certain IGOs will have agreed to the possibility of a judicial process, notwithstanding any immunity to which they otherwise would be entitled*.”

As such, Professor Swaine seems to have acknowledged that, in many instances where a losing registrant files suit against a prevailing IGO in a national court, the court is likely to rule that the IGO will have waived its immunity. He also points out that this is *not* necessarily always the case as it may depend on the approach that national court takes toward the doctrine of IGO jurisdictional immunity. As staff has noted elsewhere, there is no single, universal, unified principle that determines the result across all national courts; and there is no single international treaty that applies to all IGOs and to which all states are party.

...

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Agreed by me. From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org> on behalf of Zak Muscovitch <zak@muscovitch.com> Date: Thursday, June 21, 2018 at 6:59 PM To: Mary Wong <mary.wong@icann.org>, Paul Tattersfield <gpmgroup@gmail.com> Cc: <gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus Further to the IGO call, here is some proposed revised language for Recommendation #4: Notwithstanding the GAC advice concerning access to curative rights processes for IGOs as well as the Charter language requiring the Working Group to consider “The need to address the issue of cost to IGOs and INGOs to use curative processes”, no Working Group members are in favour of subsidies. Nevertheless this Working Group recognizes has no authority to obligate the expenditure of ICANN funds, and therefore the Working Group understands that the feasibility of providing IGOs with access to the UDRP and URS at no or nominal cost to the IGOs is one that must be addressed directly through discussions between the ICANN Board with the GAC and IGOs. . Note: Many Working Group members believe that a respondent should also be eligible to receive financial support for its defense in a case where ICANN has subsidized the complainant I don’t have a Word document to work with, but maybe this will get us over the hurdle and get to full consensus. Zak From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org> On Behalf Of Mary Wong Sent: June-21-18 11:08 AM To: Paul Tattersfield <gpmgroup@gmail.com>; Corwin, Philip <pcorwin@verisign.com> Cc: gnso-igo-ingo-crp@icann.org Subject: Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus Apologies, we of course meant “fundamental point of DISAGREEMENT”. Thank you. From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org> on behalf of Mary Wong <mary.wong@icann.org> Date: Thursday, June 21, 2018 at 11:05 To: Paul Tattersfield <gpmgroup@gmail.com>, "Corwin, Philip" <pcorwin@verisign.com> Cc: "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus Hello everyone, As Paul had requested in a previous message that staff not merely reproduce excerpts from Professor Swaine’s memo, please allow us to provide a response. The fundamental point of substantive agreement seems to be whether it is the IGO that can be considered to have initiate the legal proceedings when it first files a complaint under the UDRP or URS. Our understanding of Paul’s position is that he believes this to be the case, and as such the IGO must necessarily be considered to have waived any jurisdictional immunity to which it may otherwise be entitled. Our understanding, however, of legal process and of what we believe to have been Professor Swaine’s assumption, is that this may not be the case. The UDRP and URS are mandatory administrative proceedings that are separate from, and independent of, the judicial process. As such, when a losing respondent files suit in a national court, it is up to that court to determine whether and how to give any deference to the UDRP under its national laws (as well as consider if, to the extent the IGO decides to claim jurisdictional immunity from that court, such an immunity claim will be permitted under its national laws). The court filing by the losing respondent is not a direct appeal from the UDRP panel decision, and thus not a continuation of the UDRP proceeding but may be considered a separate legal filing. While many jurisdictions may indeed rule that an IGO, having agreed to Mutual Jurisdiction, will therefore have given up any immunity, this is not necessarily or universally the case (as Professor Swaine acknowledged). To give a specific example, we believe that decisions in civil cases in Korean courts concerning enforcement of UDRP decisions are decided under the relevant Korean domestic laws based on Korean Supreme Court jurisprudence. Best regards, Mary & Steve From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org> on behalf of Paul Tattersfield <gpmgroup@gmail.com> Date: Thursday, June 21, 2018 at 10:24 To: "Corwin, Philip" <pcorwin@verisign.com> Cc: "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus You claim you have proven in a single page that a 25-page analysis of the issue of IGO immunity in the context of judicial appeal of a UDRP decision, written by a professor of and expert in international law, is wrong. I disagree. Its competence not office that matters, one of the big advantages of the multistakeholder model is it can allow The Emperor’s New Clothes situations to come to light that would otherwise remain clothed in expert opinion. It is not helpful to simply say I am wrong. You should at least try to show why what I have said is wrong, as I have clearly, concisely and precisely done with the Swaine errors. I’ll reply to each of the other points you raise, but it does rather play into a ruse to refuse to address the core issue and everyone then gets obstructed and deffered to anything but the question asked. Which then of course opens up the opportunity for a myriad of other tangential but ultimately fruitless lines of engagement thereby helping avoid the core issue for even longer. There is no such thing as proof in application of regulation and law to specific fact situations. The law is not black and white but many shades of grey. The law is not a math equation with one single answer that can be proven, or a science experiment that can be replicated to prove a theorem. That is why every modern judicial system has a supreme judicial body to resolve the inconsistencies between lower court decisions applying the same law to similar facts. And even then, the “correct” answer can be determined by a single vote, as evidenced by the many 5-4 split decisions of the US Supreme Court. We are here to make an existing framework more equitable not litigate it. What we are supposed to be doing is drafting the equivalence of statute. We need to be clear and concise, well intentioned and precise. As I’ve already pointed out, the Swaine memo does not dictate any particular policy recommendation outcome, and parts of it can be relied upon by proponents of option 1 who believe that the UDRP’s reference to mutual jurisdiction trumps all other considerations. I respectfully dissent from that position and support option 3 because I believe that it is important to restrain ICANN from attempting to curb the legal rights of any party to a UDRP, registrant or IGO. The problem is Swaine gives the impression it is relevant to what the working group has been asked to consider – whereas really, its irrelevant complexity confuses rather than clarifies. I also support option 3 because I believe it has some chance of becoming ICANN policy and resolving this matter, while I cannot envision option 1 ever being approved by the ICANN Board even if it is passed forward from Council. In your former role as co-chair this is called bias. This is one of the main reasons why this working group reached the point where it almost collapsed and we now have a significantly weaker final report which was predominantly drafted with the intention of supporting your preferred option. This is very bad because it fails to fully articulate the sound reasons behind the final consensus positions. The Swaine memo is an informed and nuanced discussion of the central issue before this WG. It should be retained in our Final Report to inform Council and the Board of the complex legal issues relevant to the matter of IGO access to CRP, both when considering this WG’s Final Report and later on -- when this issue is revisited after it becomes clear that we have not produced a policy option acceptable to the GAC and IGOs or capable of achieving Board approval. The multistakeholder working group model is about building and supporting consensus and it isn’t helpful when those leading a group will only contribute positively when it furthers their own agenda. We could easily have easily improved process to help IGOs & INGOs and at the same time improved it for registrants too, instead you chose to lead the working group on path to try and force through at all costs the ridiculous #3. - Very sad and not what the multistakeholder model was ever intended for. Prove me wrong show me why my proof is wrong :-) Original proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001202.html (.pdf with colours) Expanded proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001310.html (.pdf with colours) On Tue, Jun 19, 2018 at 1:58 PM, Corwin, Philip <pcorwin@verisign.com> wrote: Paul: You claim you have proven in a single page that a 25-page analysis of the issue of IGO immunity in the context of judicial appeal of a UDRP decision, written by a professor of and expert in international law, is wrong. I disagree. There is no such thing as proof in application of regulation and law to specific fact situations. The law is not black and white but many shades of grey. The law is not a math equation with one single answer that can be proven, or a science experiment that can be replicated to prove a theorem. That is why every modern judicial system has a supreme judicial body to resolve the inconsistencies between lower court decisions applying the same law to similar facts. And even then, the “correct” answer can be determined by a single vote, as evidenced by the many 5-4 split decisions of the US Supreme Court. As I’ve already pointed out, the Swaine memo does not dictate any particular policy recommendation outcome, and parts of it can be relied upon by proponents of option 1 who believe that the UDRP’s reference to mutual jurisdiction trumps all other considerations. I respectfully dissent from that position and support option 3 because I believe that it is important to restrain ICANN from attempting to curb the legal rights of any party to a UDRP, registrant or IGO. I also support option 3 because I believe it has some chance of becoming ICANN policy and resolving this matter, while I cannot envision option 1 ever being approved by the ICANN Board even if it is passed forward from Council. The Swaine memo is an informed and nuanced discussion of the central issue before this WG. It should be retained in our Final Report to inform Council and the Board of the complex legal issues relevant to the matter of IGO access to CRP, both when considering this WG’s Final Report and later on -- when this issue is revisited after it becomes clear that we have not produced a policy option acceptable to the GAC and IGOs or capable of achieving Board approval. Philip Philip S. Corwin Policy Counsel VeriSign, Inc. 12061 Bluemont Way [maps.google.com] Reston, VA 20190 703-948-4648/Direct 571-342-7489/Cell "Luck is the residue of design" -- Branch Rickey From: Paul Tattersfield [mailto:gpmgroup@gmail.com] Sent: Tuesday, June 19, 2018 3:35 AM To: Corwin, Philip <pcorwin@verisign.com> Cc: petter.rindforth@fenixlegal.eu; gnso-igo-ingo-crp@icann.org Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus With all respect, in regard to your statement, “I have shown very clearly why the IGOs are never entitled to immunity after they have chosen to initiate proceedings in ANY forum”, Yes that’s right. and without even delving into the quality of your analysis, the fact that you believe an IGO would never succeed in an immunity defence in a judicial appeal from a UDRP filed by the losing registrant would not prevent any judge in any court from finding to the contrary and dismissing the case. Wrong - you are not understanding what I wrote and then attributing your own conclusion to me. Go read my proof and show me where I am wrong I don’t believe you can. The disagreement within this working group is over what should happen in the event of that rare but nonetheless possible scenario. Outside of the original co-chairs there is little disagreement, you should have the grace to respect that position. Prof. Swaine was asked to inform us as to how a court would deal with such an immunity claim and the likely response from plaintiff domain registrant that the IGO had waived its immunity by filing a UDRP with knowledge of the mutual jurisdiction clause. It is only the forum that makes the domain registrant a “plaintiff” on a claim that an IGO chose to initiate. That is the quirk of process. It is still the same principle matter. Whether the IGO chose to file a URDP or judicial proceedings the IGO is choosing to INTIATE proceedings. His memo discussed the different analytical approaches that courts employ as well as the interplay with other factors, such as national laws addressing sovereign immunity. As Petter noted, he concluded that many courts would determine that immunity had been waived, but that case dismissal by some courts could not be ruled out. The huge mistake Professor Swaine made was to analyze in great depth the scenario where an IGO is defending a claim and mistakenly assume that any rights to jurisdictional immunity there could be “transferred/applied” to the scenario where an IGO is initiating a claim. My proof pinpoints very precisely where and how he made that error in his reasoning on page 8 of his memo. The Swaine memo does not dictate any particular policy outcome within this WG, and it can likely be cited by those with differing views on the key issue before us. It informed our consideration of the questions before us and should be included within the final report as a reference point, and only as that. If you think anything in it is wrong you are free to include that in a minority statement. Swaine can never be relevant because the working group has not considered the case where an IGO is defending a UDRP brought against it by a TM owner. Swaine’s complexity confuses rather than clarifies and if you really must include it stick it in your minority report – it’s junk It’s quite simple Phillip go and read my proof (it’s less than a page) and if you believe it is wrong show me where it is wrong. I don’t believe you can that is why you are squandering everyone’s time (again). 1 Original proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001202.html (.pdf with colours) 2 Expanded proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001310.html (.pdf with colours) On Mon, Jun 18, 2018 at 1:30 AM, Corwin, Philip <pcorwin@verisign.com> wrote: Paul: With all respect, in regard to your statement, “I have shown very clearly why the IGOs are never entitled to immunity after they have chosen to initiate proceedings in ANY forum”, and without even delving into the quality of your analysis, the fact that you believe an IGO would never succeed in an immunity defence in a judicial appeal from a UDRP filed by the losing registrant would not prevent any judge in any court from finding to the contrary and dismissing the case. The disagreement within this working group is over what should happen in the event of that rare but nonetheless possible scenario. Prof. Swaine was asked to inform us as to how a court would deal with such an immunity claim and the likely response from plaintiff domain registrant that the IGO had waived its immunity by filing a UDRP with knowledge of the mutual jurisdiction clause. His memo discussed the different analytical approaches that courts employ as well as the interplay with other factors, such as national laws addressing sovereign immunity. As Petter noted, he concluded that many courts would determine that immunity had been waived, but that case dismissal by some courts could not be ruled out. The Swaine memo does not dictate any particular policy outcome within this WG, and it can likely be cited by those with differing views on the key issue before us. It informed our consideration of the questions before us and should be included within the final report as a reference point, and only as that. If you think anything in it is wrong you are free to include that in a minority statement. Philip Philip S. Corwin Policy Counsel VeriSign, Inc. 12061 Bluemont Way [maps.google.com] Reston, VA 20190 703-948-4648/Direct 571-342-7489/Cell "Luck is the residue of design" -- Branch Rickey From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of Paul Tattersfield Sent: Sunday, June 17, 2018 2:55 PM To: petter.rindforth@fenixlegal.eu Cc: gnso-igo-ingo-. <gnso-igo-ingo-crp@icann.org> Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus Dear Petter, The problem is the issue I am raising is overarching – I have shown very clearly why the IGOs are never entitled to immunity after they have chosen to initiate proceedings in ANY forum. I have also shown very precisely where Swaine went wrong in his reasoning. Petter wrote: “And I cannot see that Prof Swaine clearly states that IGO’s have the right to refer to their immunity. Instead, he states several times that the fact that an IGO has accepted a URS or UDRP case, is also likely to be seen as a waiver of their immunity. This seems especially related to UN: …” This misses the point the IGOs are choosing to initiate proceedings. Professor Swaine has analysed the scenario where an IGO is defending an initial action and then assumed incorrectly that any immunity rights enjoyed where an IGO is defending an action can be “transferred/allocated/applied” to the scenario where an IGO brings an action as the plaintiff (or claimant). When the IGO is the initial plaintiff (or claimant) it is NEVER entitled to jurisdictional immunity. I have responded to all of Mary’s points in this thread and in more detail to the other thread where Paul K. supported my concerns and David drew attention to the United Nations Convention on Jurisdictional Immunities of States and Their Property treaty. Further I have reached out to as many people as possible inviting them to refute my reasoning and so far no one has been able to show how I am even slightly wrong including people who have represented IGO interests. Please show me how my proof is anyway wrong…. Yours sincerely, Paul. Original proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001202.html (.pdf with colours) Expanded proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001310.html (.pdf with colours) On Sun, Jun 17, 2018 at 5:29 PM, Petter Rindforth <petter.rindforth@fenixlegal.eu> wrote: Dear Paul and WG Members, As you all know, we had a call on February 16, 2016 to discuss Prof Swaine’s memo, and it was further discussed during 2016. I also tried to see from your (Paul) e-mails of December 2016 (especially of December 14, 2016), when we discussed the details of our Draft Initial Report that Mary had sent to our WG, but I could not find any specific note there by you on the report, other than suggestions to fix some typos in our DIR. Prof Swaine’s memo and report is in fact a part of our work and report, to refer to. And I cannot see that Prof Swaine clearly states that IGO’s have the right to refer to their immunity. Instead, he states several times that the fact that an IGO has accepted a URS or UDRP case, is also likely to be seen as a waiver of their immunity. This seems especially related to UN: “Article 2(2) of the General Convention, the UN’s absolute immunity from legal process (other than relative to execution) may be expressly waived in particular cases. National law may also resolve the matter. For example, the IOIA provides relevant IGOs with immunity (on the same terms as afforded states) “except to the extent that such organizations may expressly waive their immunity for the purpose of any proceedings or by the terms of any contract.” What Prof Swaine however also points out, is the fact that all national law worldwide is not clear, and further that it is also up to each national court to decide to accept immunity or not, and especially IGO's that are not UN related has not the same exact position. His conclusion was that the topic is not 100% clear (which ofcourse IGO's does not agree upon, as the same with you - however with two completely different views). Option 3 has covered such possible situation, and made sure that also in (possible rare) cases where a national court accept immunity, the domain holder can at least have possibility to get the case decided by arbitration. (= This was my short personal note, knowing that the majority of the WG does not agree with establishing such solution). To summarize: We have Prof. Swaine’s report to refer to and that has for long time been a part of, and reference, related to our full report. Paul, I appreciate your work with comments, and recommend that you prepare a Minority Statement in regard to the Swaine memo. Also, a reminder to other WG members that support Options with no majority from the WG, please prepare your Minority Statements. Finally: Please focus on our Final Report and keep the suggestions within our WG mailing list. We are close to make a conclusion on each Recommendation and Option. It is better for us all to effectively conclude our work now in a friendly manner, and create our Final Report, that can then be further discussed by others. Best regards, Petter -- Petter Rindforth, LL M Fenix Legal KB Stureplan 4c, 4tr 114 35 Stockholm Sweden Fax: +46(0)8-4631010 Direct phone: +46(0)702-369360 E-mail: petter.rindforth@fenixlegal.eu www.fenixlegal.eu [fenixlegal.eu] NOTICE This e-mail message is intended solely for the individual or individuals to whom it is addressed. It may contain confidential attorney-client privileged information and attorney work product. If the reader of this message is not the intended recipient, you are requested not to read, copy or distribute it or any of the information it contains. Please delete it immediately and notify us by return e-mail. Fenix Legal KB, Sweden, www.fenixlegal.eu [fenixlegal.eu] Thank you 15 juni 2018 13:28:59 +02:00, skrev Paul Tattersfield <gpmgroup@gmail.com>: Staff directs your attention to those parts of the memo where Professor Swaine writes as follows (emphasis added): “ …the situation raises at least two distinct immunity issues. The first is whether, in principle, an IGO would enjoy immunity from judicial process with respect to name-related rights it might assert in the UDRP proceedings. The answer depends on whether jurisdiction in which the case arises would apply an absolute, functional, or restrictive immunity approach to the IGO in question. That may be hard to predict. Wrong – Immunity is only a defence where an IGO is a defendant NOT a claimant. In the initial claim the IGO is the claimant whether it be a UDRP claim or a judicial claim. In the United States, for example, unless an IGO benefits from broader treaty protections—as the United Nations, but not its specialized agencies, does, because the United States is only party to a treaty governing the former’s immunity—the question is addressed by the International Organizations Immunities Act (the IOIA), but some courts interpret the statute as establishing absolute immunity and others view it as establishing restrictive immunity only. The answer is a bit more straightforward elsewhere, and other states tend to favor either an absolute or a functional approach. The choice among these approaches would be material. Yes immunity is complex, very complex, but it is not relevant because the IGO is the initiating the claim. If an IGO is entitled to absolute immunity, it would in principle be protected from a suit of the kind in question, and probably under a functional approach as well—because an IGO’s protection of its name is likely to be deemed part of its functions. Immunity is less likely under a restrictive approach, which might regard this as more akin to trademark-related activity that is commercial in character. The second, more relevant, question is whether—in light of an IGO’s assent to Mutual Jurisdiction, by virtue of its initiation of UDRP proceedings (or its registration of a domain name)—its immunity remains. Here, the more likely answer is that it would not. Wrong, the mutual jurisdiction clause is a separate very high hurdle in a litigation strategy for an IGO. There is no immunity to remain – see above. IGOs are capable of waiving their immunity from suit, and if they do so, they may no longer interpose immunity as a defense if another party commences a judicial action falling within the scope of that waiver. The grant of Mutual Jurisdiction should establish such a waiver, just as it would for a state entity otherwise entitled to immunity. This waiver would be construed narrowly, but it would likely permit proceeding against an IGO in at least some domestic courts. The overall answer, then, is contingent. Wrong – no it isn’t contingent there is no immunity to defend – see above If there were no Mutual Jurisdiction clause, an IGO might be entitled to immunity to judicial process; if, on the other hand, the Mutual Jurisdiction clause were maintained, as in the status quo, the IGO’s immunity is less germane because it would have been waived. Equitable considerations might influence any judicial analysis … Accordingly, an IGO complainant will have consented to judicial proceedings if a losing respondent wishes to challenge a cancellation or —in a jurisdiction that the IGO will have selected, but from limited choices that the registrant can craft through its choice of registrar and its registering address … How matters unfold from that point will depend on national law. This is a truism but is not relevant because there is no immunity to defend In short, the Mutual Jurisdiction concession means that certain IGOs will have agreed to the possibility of a judicial process, That’s right - that’s what the mutual jurisidiction clause is for, That is how it should be. If you make an allegation and ask a forum to rule on it to you have to be prepared to defend the allegation including counterclaims notwithstanding any immunity to which they otherwise would be entitled.” Wrong – there isn’t any immunity to defend – see above As such, Professor Swaine seems to have acknowledged that, in many instances where a losing registrant files suit against a prevailing IGO in a national court, the court is likely to rule that the IGO will have waived its immunity. He also points out that this is not necessarily always the case as it may depend on the approach that national court takes toward the doctrine of IGO jurisdictional immunity. As staff has noted elsewhere, there is no single, universal, unified principle that determines the result across all national courts; and there is no single international treaty that applies to all IGOs and to which all states are party. Thus, Professor Swaine’s expert legal opinion seems to us to be saying that while it is likely that in many jurisdictions an IGO will not succeed in claiming immunity from jurisdiction, this is not to be assumed as a certainty in all jurisdictions globally. It may be a rare case that an IGO succeeds, but it is at least a possibility in a few jurisdictions. We trust this is sufficiently clear. If you want to challenge my proof you need show in the text which I have included again below for completeness why I am wrong not quote from the report which based on the errors I am alleging. Looking at what Professor Swaine said: “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.” I think we can all agree that; initiating proceedings waives immunity including counterclaims. “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.” I think we can all agree that; if a TM owner starts proceedings to acquire a domain which an IGO has registered then an IGO would be entitled to use jurisdictional immunity to prevent a hearing taking place. “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” I think we can all agree that; the working group has not and will not consider the case where a TM owner starts proceedings against an IGO. Here’s the problem What Professor Swaine has done is say well he’s isolated a situation where an IGO would be entitled to claim an immunity defence absent UDRP so now he’s good to go for the rest of his report on immunity. Wrong. Just because Professor Swaine has identified a situation where an IGO is entitled to claim an immunity defence doesn’t mean he can then apply it to other situations. Proof 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. As the UDRP is an administrative procedure to help take less complex cases out of the judicial system if UDRP is to afford the same protections as any other forum then UDRP needs to take into account both scenarios. (a) A TM owner seeks to acquire a domain which an IGO has registered by bringing a UDRP (b) An IGO seeks to acquire a domain which a domain registrant has registered by bringing a UDRP Let’s confirm what is happening with colours: Blue = An immunity defence is good to go Red = An immunity defence is a no-no Applying the logic Professor Swaine has used we have (a) A TM owner seeks to acquire a domain which an IGO has registered by bringing a UDRP (b) An IGO seeks to acquire a domain which a domain registrant has registered by bringing a UDRP What Professor Swaine is asking the reader to accept is the right to an immunity defence can be applied to both (a) and (b) scenarios and this can not be right because Absent UDRP we have (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 So the correct position at UDRP is (a) A TM owner seeks to acquire a domain which an IGO has registered by bringing a UDRP (b) An IGO seeks to acquire a domain which a domain registrant has registered by bringing a UDRP Quite simply the IGOs are never entitled to jurisdictional immunity after initiating proceedings. On Fri, Jun 15, 2018 at 11:02 AM, Mary Wong <mary.wong@icann.org> wrote: Hello again Paul and everyone, Staff directs your attention to those parts of the memo where Professor Swaine writes as follows (emphasis added): “ …the situation raises at least two distinct immunity issues. The first is whether, in principle, an IGO would enjoy immunity from judicial process with respect to name-related rights it might assert in the UDRP proceedings. The answer depends on whether jurisdiction in which the case arises would apply an absolute, functional, or restrictive immunity approach to the IGO in question. That may be hard to predict. In the United States, for example, unless an IGO benefits from broader treaty protections—as the United Nations, but not its specialized agencies, does, because the United States is only party to a treaty governing the former’s immunity—the question is addressed by the International Organizations Immunities Act (the IOIA), but some courts interpret the statute as establishing absolute immunity and others view it as establishing restrictive immunity only. The answer is a bit more straightforward elsewhere, and other states tend to favor either an absolute or a functional approach. The choice among these approaches would be material. If an IGO is entitled to absolute immunity, it would in principle be protected from a suit of the kind in question, and probably under a functional approach as well—because an IGO’s protection of its name is likely to be deemed part of its functions. Immunity is less likely under a restrictive approach, which might regard this as more akin to trademark-related activity that is commercial in character. The second, more relevant, question is whether—in light of an IGO’s assent to Mutual Jurisdiction, by virtue of its initiation of UDRP proceedings (or its registration of a domain name)—its immunity remains. Here, the more likely answer is that it would not. IGOs are capable of waiving their immunity from suit, and if they do so, they may no longer interpose immunity as a defense if another party commences a judicial action falling within the scope of that waiver. The grant of Mutual Jurisdiction should establish such a waiver, just as it would for a state entity otherwise entitled to immunity. This waiver would be construed narrowly, but it would likely permit proceeding against an IGO in at least some domestic courts. The overall answer, then, is contingent. If there were no Mutual Jurisdiction clause, an IGO might be entitled to immunity to judicial process; if, on the other hand, the Mutual Jurisdiction clause were maintained, as in the status quo, the IGO’s immunity is less germane because it would have been waived. Equitable considerations might influence any judicial analysis … Accordingly, an IGO complainant will have consented to judicial proceedings if a losing respondent wishes to challenge a cancellation or —in a jurisdiction that the IGO will have selected, but from limited choices that the registrant can craft through its choice of registrar and its registering address … How matters unfold from that point will depend on national law. In short, the Mutual Jurisdiction concession means that certain IGOs will have agreed to the possibility of a judicial process, notwithstanding any immunity to which they otherwise would be entitled.” As such, Professor Swaine seems to have acknowledged that, in many instances where a losing registrant files suit against a prevailing IGO in a national court, the court is likely to rule that the IGO will have waived its immunity. He also points out that this is not necessarily always the case as it may depend on the approach that national court takes toward the doctrine of IGO jurisdictional immunity. As staff has noted elsewhere, there is no single, universal, unified principle that determines the result across all national courts; and there is no single international treaty that applies to all IGOs and to which all states are party. Thus, Professor Swaine’s expert legal opinion seems to us to be saying that while it is likely that in many jurisdictions an IGO will not succeed in claiming immunity from jurisdiction, this is not to be assumed as a certainty in all jurisdictions globally. It may be a rare case that an IGO succeeds, but it is at least a possibility in a few jurisdictions. We trust this is sufficiently clear. Best regards, Mary & Steve From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org> on behalf of Paul Tattersfield <gpmgroup@gmail.com> Date: Friday, June 15, 2018 at 17:17 To: "petter.rindforth@fenixlegal.eu" <petter.rindforth@fenixlegal.eu> Cc: "gnso-igo-ingo-." <gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus Dear Petter, On Swaine I do not believe what you are proposing is acceptable. This isn’t some minor matter for a minority opinion Swaine underpins the whole of the working group’s final report. I have shown very clearly in plain language how Swaine introduces horrendously complex issues which have absolutely no relevance whatsoever to what the working group has been asked to consider. Both Paul Keating & George Kirikos have both indicated they share my concerns that Swaine can never be considered correct on this matter and in the alternative no one has voiced any dissent to the expanded proof I outlined. The only person to offer any comments has been Mary and she did not address the core issue I was raising and has chosen so far not to dispute or comment further on the expanded proof. (For completeness Phillip said he was proud of Swaine) You have chosen not to comment too. Do you also still personally believe what I am saying is wrong and that Swaine can possibly be correct in his findings? If so please can you please explain to the working group how Swaine can possibly be correct because the report fails to adequately acknowledge or address the indisputable fact that IGOs automatically waive immunity every time they commence a legal proceeding? Yours sincerely, Paul. Expanded proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001310.html (.pdf with colours) Original proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001202.html (.pdf with colours) On Fri, Jun 15, 2018 at 8:29 AM, Petter Rindforth <petter.rindforth@fenixlegal.eu> wrote: Dear Working Group members, In light of the need for us to complete our work, in my role as the Chair, I ask you all to now focus on the task at hand, which is to finalize agreement on the appropriate consensus levels for each recommendation. In this regard, please note the following: (1) I have put the most current, likely consensus levels here in this message and will appreciate further feedback; (2) we need now also to focus on discussing where we want to end up in relation to Option 1 and Option 4, which may be mutually incompatible; and (3) where you have made a suggestion on any specific point/topic but it has not received support, I ask that you consider filing a Minority Statement now rather than continue to argue the point. On consensus levels, and based on our call earlier this week and the more recent list discussions: Recommendation 1: Full Consensus (with additional text in the rationale about why this recommendation was phrased to cover INGOs, and noting that IGOs are covered by the remaining recommendations which nevertheless do not require changing the UDRP or URS beyond what may be necessary to effectuate those additional recommendations – I note that this last caveat may of course not be necessary if the group reaches consensus on Option 4 versus Option 1, as we are currently discussing). Recommendation 2: Consensus (with slight amendment to the recommendation text to reflect “trademark or service mark rights” where we mention “unregistered” rights). Recommendation 3: Consensus Recommendation 4: Strong Support but Significant Opposition (with additional text in the rationale to note that several members are strongly against subsidies of any sort). Recommendation 5/Options 1-6 (which we can renumber/title in the Final Report to avoid confusion): Option 1 – Consensus or Strong Support but Significant Opposition Option 2 – No Consensus/Divergence Option 3 – Minority View (Consensus Against) Option 4 – Consensus or Strong Support but Significant Opposition Option 5 – No Consensus/Divergence Option 6 – Strong Support but Significant Opposition On reconciling Options 1 & 4: If, from the above tentative consensus listing, the group agrees that either Option 1 or Option 4 has sufficient consensus (but not the other), there will not be a conflict. Please therefore weigh in with your thoughts on the current consensus levels for these two options. I have seen some informal notes from WG members that support both Option 1 and Option 4, clarifying that they prefer Option 1 before Option 4, but please make such statements/clarification again. Similarly, if we end up with Strong Support but Significant Opposition for both, we can just transmit both to the Council without the need for further discussion (but possibly with text that can include implementation guidance for Option 1). For Option 1 – this will require a change to the UDRP and URS, so if this is the final consensus position, staff will add draft text to the report with implementation guidance. On Minority Statements: 1) As Susan suggested on the call, Paul Tattersfield may want to consider filing a Minority Statement in regard to the Swaine memo, as despite several emails on the topic over the last month or two and on the Working Group calls, there has not been much support to remove the memo from the report. 2) Similarly, those who support recommendations/options that end up as either No Consensus/Divergence or Minority View should consider preparing Minority Statements (as I believe Phil has already indicated he may do). Thank you to all who are contributing to a productive discussion. I ask that we refrain from questioning others’ credibility or credentials, stop bringing up old threads and posts again, and focus on getting to the final consensus. We had a good, friendly and effective call this Tuesday – let us continue that way also online! Best regards, Petter -- Petter Rindforth, LL M Fenix Legal KB Stureplan 4c, 4tr 114 35 Stockholm Sweden Fax: +46(0)8-4631010 Direct phone: +46(0)702-369360 E-mail: petter.rindforth@fenixlegal.eu www.fenixlegal.eu [fenixlegal.eu] NOTICE This e-mail message is intended solely for the individual or individuals to whom it is addressed. It may contain confidential attorney-client privileged information and attorney work product. If the reader of this message is not the intended recipient, you are requested not to read, copy or distribute it or any of the information it contains. Please delete it immediately and notify us by return e-mail. Fenix Legal KB, Sweden, www.fenixlegal.eu [fenixlegal.eu] Thank you _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp

The Swaine memo is a part of our Final Report, as a part of the record of our WG, but is not determinative of the WG’s outcomes – as you all can see. Swaine is wrong, Swaine is confused, Swaine discusses irrelevant complexity. Quite frankly it’s junk. I have shown in less than a single page why and how Swaine can never be right. It's simple, go read my proof and show me why I am wrong if you want to include Swaine. One example on the difficulties in court actions is, even if it was not an IGO-related case, from the article about the YoYo.email Limited vs. the Royal Bank of Scotland Group PLC case that Mr Kirikos informed the RPM WG of in an e-mail of January 3, 2018. The High Court commented in their decision that: "… it is trite law that an agreement cannot confer a jurisdiction on the court which it does not otherwise have. Under the [UDRP] the Registrar will abide by a judicial decision, but the function of this Court is not as a judicial review or appellate body. The claimant must demonstrate some independent right of action justiciable in this Court. Thus if a complaint is dismissed, the complainant may refer the case to the Court for an order that its trade mark has been infringed. If, on the other hand, the complaint is upheld, the burden is not on the complainant to establish infringement. It is for the registrant to plead and prove a cause of action giving him an interest in retaining the domain name. An unsuccessful registrant therefore faces considerable difficulty in identifying a cause of action upon which the Panel's decision can be challenged..." Sheesh! You are not seriously trying to use this to support keeping Swaine in the final report are you? As concluded by Prof. Swaine on our topic, there is a legal grey zone, and as long as we cannot make a 100% clear legal force that all national courts in all countries around the world has to follow, it is better to find a solution where both the domain holder and the IGO can have their case decided upon, hearing both parties. On immunity there is no grey area it is incredibly simple; if the IGOs choose to initiate proceedings jurisdictional immunity can NEVER be a defence. I have shown this very clearly in the proof I have submitted. The proof is very short less than a page, go and read it and show me why my proof is wrong. The working group’s consensus around option #1 reflects this you should respect it. Please also have in mind that we are not just to solve a problem for IGO and INGO's, we also need to have the domain holders interest in mind, and find solutions where both parties can be sure that they have the possibility to have the case finally decided outside the URS or UDRP. If the co-chairs had not wanted to repeatedly impose their ridiculous and inelegant option #3 on the world the working group could have used its time more usefully to improve process for all parties. That was what option #6 was about but Phillip supported by you was obsessed with driving option #3 through at all costs. 1 Original proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001202.html (.pdf with colours) 2 Expanded proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001310.html (.pdf with colours) On Mon, Jun 18, 2018 at 6:47 PM, Petter Rindforth < petter.rindforth@fenixlegal.eu> wrote:

Dear Paul and all WG members,

The Swaine memo is a part of our Final Report, as a part of the record of our WG, but is not determinative of the WG’s outcomes – as you all can see.

One example on the difficulties in court actions is, even if it was not an IGO-related case, from the article about the YoYo.email Limited vs. the Royal Bank of Scotland Group PLC case that Mr Kirikos informed the RPM WG of in an e-mail of January 3, 2018. The High Court commented in their decision that:

*"… it is trite law that an agreement cannot confer a jurisdiction on the court which it does not otherwise have. Under the [UDRP] the Registrar will abide by a judicial decision, but the function of this Court is not as a judicial review or appellate body. The claimant must demonstrate some independent right of action justiciable in this Court. Thus if a complaint is dismissed, the complainant may refer the case to the Court for an order that its trade mark has been infringed. If, on the other hand, the complaint is upheld, the burden is not on the complainant to establish infringement. It is for the registrant to plead and prove a cause of action giving him an interest in retaining the domain name. An unsuccessful registrant therefore faces considerable difficulty in identifying a cause of action upon which the Panel's decision can be challenged..."*

As concluded by Prof. Swaine on our topic, there is a legal grey zone, and as long as we cannot make a 100% clear legal force that all national courts in all countries around the world has to follow, it is better to find a solution where both the domain holder and the IGO can have their case decided upon, hearing both parties.

Again, please prepare Minority Statements of those details and parts you don’t agree upon.

Please also have in mind that we are not just to solve a problem for IGO and INGO's, we also need to have the domain holders interest in mind, and find solutions where both parties can be sure that they have the possibility to have the case finally decided outside the URS or UDRP.

Our next meeting, as you can see from the invitation sent out earlier today, is this upcoming Thursday, 21 June 2018 at 16:00 UTC for 90 minutes .

I look forward to an effective meeting where we - with respect for each other's different opinions - can make decisions about the remaining statements. All the best, Petter -- Petter Rindforth, LL M

Fenix Legal KB Stureplan 4c, 4tr 114 35 Stockholm Sweden Fax: +46(0)8-4631010 Direct phone: +46(0)702-369360 E-mail: petter.rindforth@fenixlegal.eu www.fenixlegal.eu

NOTICE This e-mail message is intended solely for the individual or individuals to whom it is addressed. It may contain confidential attorney-client privileged information and attorney work product. If the reader of this message is not the intended recipient, you are requested not to read, copy or distribute it or any of the information it contains. Please delete it immediately and notify us by return e-mail. Fenix Legal KB, Sweden, www.fenixlegal.eu Thank you

17 juni 2018 20:54:37 +02:00, skrev Paul Tattersfield <gpmgroup@gmail.com

...

:

Dear Petter,

The problem is the issue I am raising is overarching – I have shown very clearly why the IGOs are never entitled to immunity after they have chosen to initiate proceedings in ANY forum. I have also shown very precisely where Swaine went wrong in his reasoning.

Petter wrote:

*“And I cannot see that Prof Swaine clearly states that IGO’s have the right to refer to their immunity. Instead, he states several times that the fact that an IGO has accepted a URS or UDRP case, is also likely to be seen as a waiver of their immunity. This seems especially related to UN: …” *This misses the point the IGOs are choosing to initiate proceedings. Professor Swaine has analysed the scenario where an IGO is defending an initial action and then assumed incorrectly that any immunity rights enjoyed where an IGO is defending an action can be “transferred/allocated/applied” to the scenario where an IGO brings an action as the plaintiff (or claimant). When the IGO is the initial plaintiff (or claimant) it is NEVER entitled to jurisdictional immunity.

I have responded to all of Mary’s points in this thread and in more detail to the other thread where Paul K. supported my concerns and David drew attention to the United Nations Convention on Jurisdictional Immunities of States and Their Property treaty.

Further I have reached out to as many people as possible inviting them to refute my reasoning and so far no one has been able to show how I am even slightly wrong including people who have represented IGO interests.

Please show me how my proof is anyway wrong….

Yours sincerely,

Paul.

Original proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001202.html (.pdf with colours)

Expanded proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001310.html (.pdf with colours)

On Sun, Jun 17, 2018 at 5:29 PM, Petter Rindforth < petter.rindforth@fenixlegal.eu> wrote:

Dear Paul and WG Members,

As you all know, we had a call on February 16, 201*6* to discuss Prof Swaine’s memo, and it was further discussed during 2016. I also tried to see from your (Paul) e-mails of December 2016 (especially of December 14, 2016), when we discussed the details of our Draft Initial Report that Mary had sent to our WG, but I could not find any specific note there by you on the report, other than suggestions to fix some typos in our DIR.

Prof Swaine’s memo and report is in fact a part of our work and report, to refer to. And I cannot see that Prof Swaine clearly states that IGO’s have the right to refer to their immunity. Instead, he states several times that the fact that an IGO has accepted a URS or UDRP case, is also likely to be seen as a waiver of their immunity. This seems especially related to UN:

“Article 2(2) of the General Convention, the UN’s absolute immunity from legal process (other than relative to execution) may be expressly waived in particular cases. National law may also resolve the matter. For example, the IOIA provides relevant IGOs with immunity (on the same terms as afforded states) “except to the extent that such organizations may expressly waive their immunity for the purpose of any proceedings or by the terms of any contract.”

What Prof Swaine however also points out, is the fact that all national law worldwide is not clear, and further that it is also up to each national court to decide to accept immunity or not, and especially IGO's that are not UN related has not the same exact position.

His conclusion was that the topic is not 100% clear (which ofcourse IGO's does not agree upon, as the same with you - however with two completely different views).

Option 3 has covered such possible situation, and made sure that also in (possible rare) cases where a national court accept immunity, the domain holder can at least have possibility to get the case decided by arbitration. (= *This was my short personal note, knowing that the majority of the WG does not agree with establishing such solution*).

*To summarize:*

We have Prof. Swaine’s report to refer to and that has for long time been a part of, and reference, related to our full report.

Paul, I appreciate your work with comments, and recommend that you prepare a Minority Statement in regard to the Swaine memo.

Also, a reminder to other WG members that support Options with no majority from the WG, please prepare your Minority Statements.

*Finally:*

Please focus on our Final Report and keep the suggestions within our WG mailing list. We are close to make a conclusion on each Recommendation and Option. It is better for us all to effectively conclude our work now in a friendly manner, and create our Final Report, that can then be further discussed by others.

Best regards, Petter

-- Petter Rindforth, LL M

Fenix Legal KB Stureplan 4c, 4tr 114 35 Stockholm Sweden Fax: +46(0)8-4631010 Direct phone: +46(0)702-369360 E-mail: petter.rindforth@fenixlegal.eu www.fenixlegal.eu

NOTICE This e-mail message is intended solely for the individual or individuals to whom it is addressed. It may contain confidential attorney-client privileged information and attorney work product. If the reader of this message is not the intended recipient, you are requested not to read, copy or distribute it or any of the information it contains. Please delete it immediately and notify us by return e-mail. Fenix Legal KB, Sweden, www.fenixlegal.eu Thank you

15 juni 2018 13:28:59 +02:00, skrev Paul Tattersfield <gpmgroup@gmail.com

...

:

Staff directs your attention to those parts of the memo where Professor Swaine writes as follows (emphasis added):

“ …the situation raises at least two distinct immunity issues. The first is whether, in principle, an IGO would enjoy immunity from judicial process with respect to name-related rights it might assert in the UDRP proceedings. *The answer depends on whether jurisdiction in which the case arises would apply an absolute, functional, or restrictive immunity approach to the IGO in question. That may be hard to predict*.

Wrong – Immunity is only a defence where an IGO is a defendant NOT a claimant. In the initial claim the IGO is the claimant whether it be a UDRP claim or a judicial claim.

In the United States, for example, unless an IGO benefits from broader treaty protections—as the United Nations, but not its specialized agencies, does, because the United States is only party to a treaty governing the former’s immunity—the question is addressed by the International Organizations Immunities Act (the IOIA), but some courts interpret the statute as establishing absolute immunity and others view it as establishing restrictive immunity only. The answer is a bit more straightforward elsewhere, and other states tend to favor either an absolute or a functional approach. *The choice among these approaches would be material.*

Yes immunity is complex, very complex, but it is not relevant because the IGO is the initiating the claim.

If an IGO is entitled to absolute immunity, it would in principle be protected from a suit of the kind in question, and probably under a functional approach as well—because an IGO’s protection of its name is likely to be deemed part of its functions. Immunity is less likely under a restrictive approach, which might regard this as more akin to trademark-related activity that is commercial in character.

*The second, more relevant, question is whether—in light of an IGO’s assent to Mutual Jurisdiction, by virtue of its initiation of UDRP proceedings (or its registration of a domain name)—its immunity remains. Here, the more likely answer is that it would not.*

Wrong, the mutual jurisdiction clause is a separate very high hurdle in a litigation strategy for an IGO. There is no immunity to remain – see above.

IGOs are capable of waiving their immunity from suit, and if they do so, they may no longer interpose immunity as a defense if another party commences a judicial action falling within the scope of that waiver. The grant of Mutual Jurisdiction should establish such a waiver, just as it would for a state entity otherwise entitled to immunity. This waiver would be construed narrowly, but it would likely permit proceeding against an IGO in at least some domestic courts.

*The overall answer, then, is contingent.*

Wrong – no it isn’t contingent there is no immunity to defend – see above

If there were no Mutual Jurisdiction clause, an IGO might be entitled to immunity to judicial process; if, on the other hand, the Mutual Jurisdiction clause were maintained, as in the status quo, the IGO’s immunity is less germane because it would have been waived. Equitable considerations might influence any judicial analysis …

Accordingly, an IGO complainant will have consented to judicial proceedings if a losing respondent wishes to challenge a cancellation or

—in a jurisdiction that the IGO will have selected, but from limited choices that the registrant can craft through its choice of registrar and its registering address …

*How matters unfold from that point will depend on national law.*This is a truism but is not relevant because there is no immunity to defend

*In short, the Mutual Jurisdiction concession means that certain IGOs will have agreed to the possibility of a judicial process, * That’s right - that’s what the mutual jurisidiction clause is for, That is how it should be. If you make an allegation and ask a forum to rule on it to you have to be prepared to defend the allegation including counterclaims

*notwithstanding any immunity to which they otherwise would be entitled*.”

Wrong – there isn’t any immunity to defend – see above

As such, Professor Swaine seems to have acknowledged that, in many instances where a losing registrant files suit against a prevailing IGO in a national court, the court is likely to rule that the IGO will have waived its immunity. He also points out that this is *not* necessarily always the case as it may depend on the approach that national court takes toward the doctrine of IGO jurisdictional immunity. As staff has noted elsewhere, there is no single, universal, unified principle that determines the result across all national courts; and there is no single international treaty that applies to all IGOs and to which all states are party.

Thus, Professor Swaine’s expert legal opinion seems to us to be saying that while it is likely that in many jurisdictions an IGO will *not* succeed in claiming immunity from jurisdiction, this is not to be assumed as a certainty in all jurisdictions globally. It may be a rare case that an IGO succeeds, but it is at least a possibility in a few jurisdictions.

We trust this is sufficiently clear.

If you want to challenge my proof you need show in the text which I have included again below for completeness why I am wrong not quote from the report which based on the errors I am alleging.

Looking at what Professor Swaine said:

*“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.”*I think we can all agree that; initiating proceedings waives immunity including counterclaims.

*“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.” *I think we can all agree that; if a TM owner starts proceedings to acquire a domain which an IGO has registered then an IGO would be entitled to use jurisdictional immunity to prevent a hearing taking place.

*“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”*I think we can all agree that; the working group has not and will not consider the case where a TM owner starts proceedings against an IGO.

*Here’s the problem*

What Professor Swaine has done is say well he’s isolated a situation where an IGO would be entitled to claim an immunity defence absent UDRP so now he’s good to go for the rest of his report on immunity.

Wrong.

Just because Professor Swaine has identified a situation where an IGO is entitled to claim an immunity defence doesn’t mean he can then apply it to other situations

*.*

*Proof*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.

As the UDRP is an administrative procedure to help take less complex cases out of the judicial system if UDRP is to afford the same protections as any other forum then UDRP needs to take into account both scenarios.

(a) A TM owner seeks to acquire a domain which an IGO has registered by bringing a UDRP (b) An IGO seeks to acquire a domain which a domain registrant has registered by bringing a UDRP

*Let’s confirm what is happening with colours:* Blue = An immunity defence is good to go Red = An immunity defence is a no-no

Applying the logic Professor Swaine has used we have

(a) A TM owner seeks to acquire a domain which an IGO has registered by bringing a UDRP (b) An IGO seeks to acquire a domain which a domain registrant has registered by bringing a UDRP

What Professor Swaine is asking the reader to accept is the right to an immunity defence can be applied to both (a) and (b) scenarios and this can not be right because

Absent UDRP we have

(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

So the correct position at UDRP is (a) A TM owner seeks to acquire a domain which an IGO has registered by bringing a UDRP (b) An IGO seeks to acquire a domain which a domain registrant has registered by bringing a UDRP

Quite simply the IGOs are never entitled to jurisdictional immunity after initiating proceedings.

On Fri, Jun 15, 2018 at 11:02 AM, Mary Wong <mary.wong@icann.org> wrote:

Hello again Paul and everyone,

Staff directs your attention to those parts of the memo where Professor Swaine writes as follows (emphasis added):

“ …the situation raises at least two distinct immunity issues. The first is whether, in principle, an IGO would enjoy immunity from judicial process with respect to name-related rights it might assert in the UDRP proceedings. *The answer depends on whether jurisdiction in which the case arises would apply an absolute, functional, or restrictive immunity approach to the IGO in question. That may be hard to predict*. In the United States, for example, unless an IGO benefits from broader treaty protections—as the United Nations, but not its specialized agencies, does, because the United States is only party to a treaty governing the former’s immunity—the question is addressed by the International Organizations Immunities Act (the IOIA), but some courts interpret the statute as establishing absolute immunity and others view it as establishing restrictive immunity only. The answer is a bit more straightforward elsewhere, and other states tend to favor either an absolute or a functional approach. *The choice among these approaches would be material.* If an IGO is entitled to absolute immunity, it would in principle be protected from a suit of the kind in question, and probably under a functional approach as well—because an IGO’s protection of its name is likely to be deemed part of its functions. Immunity is less likely under a restrictive approach, which might regard this as more akin to trademark-related activity that is commercial in character.

*The second, more relevant, question is whether—in light of an IGO’s assent to Mutual Jurisdiction, by virtue of its initiation of UDRP proceedings (or its registration of a domain name)—its immunity remains. Here, the more likely answer is that it would not.* IGOs are capable of waiving their immunity from suit, and if they do so, they may no longer interpose immunity as a defense if another party commences a judicial action falling within the scope of that waiver. The grant of Mutual Jurisdiction should establish such a waiver, just as it would for a state entity otherwise entitled to immunity. This waiver would be construed narrowly, but it would likely permit proceeding against an IGO in at least some domestic courts.

*The overall answer, then, is contingent.* If there were no Mutual Jurisdiction clause, an IGO might be entitled to immunity to judicial process; if, on the other hand, the Mutual Jurisdiction clause were maintained, as in the status quo, the IGO’s immunity is less germane because it would have been waived. Equitable considerations might influence any judicial analysis …

Accordingly, an IGO complainant will have consented to judicial proceedings if a losing respondent wishes to challenge a cancellation or

—in a jurisdiction that the IGO will have selected, but from limited choices that the registrant can craft through its choice of registrar and its registering address … *How matters unfold from that point will depend on national law.*

*In short, the Mutual Jurisdiction concession means that certain IGOs will have agreed to the possibility of a judicial process, notwithstanding any immunity to which they otherwise would be entitled*.”

As such, Professor Swaine seems to have acknowledged that, in many instances where a losing registrant files suit against a prevailing IGO in a national court, the court is likely to rule that the IGO will have waived its immunity. He also points out that this is *not* necessarily always the case as it may depend on the approach that national court takes toward the doctrine of IGO jurisdictional immunity. As staff has noted elsewhere, there is no single, universal, unified principle that determines the result across all national courts; and there is no single international treaty that applies to all IGOs and to which all states are party.

Thus, Professor Swaine’s expert legal opinion seems to us to be saying that while it is likely that in many jurisdictions an IGO will *not* succeed in claiming immunity from jurisdiction, this is not to be assumed as a certainty in all jurisdictions globally. It may be a rare case that an IGO succeeds, but it is at least a possibility in a few jurisdictions.

We trust this is sufficiently clear.

Best regards,

Mary & Steve

*From: *Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org> on behalf of Paul Tattersfield <gpmgroup@gmail.com> *Date: *Friday, June 15, 2018 at 17:17 *To: *"petter.rindforth@fenixlegal.eu" <petter.rindforth@fenixlegal.eu> *Cc: *"gnso-igo-ingo-." <gnso-igo-ingo-crp@icann.org> *Subject: *Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus

Dear Petter,

On Swaine I do not believe what you are proposing is acceptable. This isn’t some minor matter for a minority opinion Swaine underpins the whole of the working group’s final report. I have shown very clearly in plain language how Swaine introduces horrendously complex issues which have absolutely no relevance whatsoever to what the working group has been asked to consider.

Both Paul Keating & George Kirikos have both indicated they share my concerns that Swaine can never be considered correct on this matter and in the alternative no one has voiced any dissent to the expanded proof I outlined. The only person to offer any comments has been Mary and she did not address the core issue I was raising and has chosen so far not to dispute or comment further on the expanded proof. (For completeness Phillip said he was proud of Swaine)

You have chosen not to comment too. Do you also still personally believe what I am saying is wrong and that Swaine can possibly be correct in his findings?

If so please can you please explain to the working group how Swaine can possibly be correct because the report fails to adequately acknowledge or address the indisputable fact that IGOs automatically waive immunity every time they commence a legal proceeding?

Yours sincerely,

Paul.

Expanded proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001310.html (.pdf with colours)

Original proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001202.html (.pdf with colours)

On Fri, Jun 15, 2018 at 8:29 AM, Petter Rindforth < petter.rindforth@fenixlegal.eu> wrote:

Dear Working Group members,

In light of the need for us to complete our work, in my role as the Chair, I ask you all to now focus on the task at hand, which is to finalize agreement on the appropriate consensus levels for each recommendation. In this regard, please note the following:

(1) I have put the most current, likely consensus levels here in this message and will appreciate further feedback;

(2) we need now also to focus on discussing where we want to end up in relation to Option 1 and Option 4, which may be mutually incompatible; and

(3) where you have made a suggestion on any specific point/topic but it has not received support, I ask that you consider filing a Minority Statement now rather than continue to argue the point.

On consensus levels, and based on our call earlier this week and the more recent list discussions:

*Recommendation 1:* Full Consensus (with additional text in the rationale about why this recommendation was phrased to cover INGOs, and noting that IGOs are covered by the remaining recommendations which nevertheless do not require changing the UDRP or URS beyond what may be necessary to effectuate those additional recommendations – I note that this last caveat may of course not be necessary if the group reaches consensus on Option 4 versus Option 1, as we are currently discussing).

*Recommendation 2: *Consensus (with slight amendment to the recommendation text to reflect “trademark or service mark rights” where we mention “unregistered” rights).

*Recommendation 3:* Consensus

*Recommendation 4: *Strong Support but Significant Opposition (with additional text in the rationale to note that several members are strongly against subsidies of any sort).

*Recommendation 5/Options 1-6* (which we can renumber/title in the Final Report to avoid confusion):

Option 1 – Consensus or Strong Support but Significant Opposition

Option 2 – No Consensus/Divergence

Option 3 – Minority View (Consensus Against)

Option 4 – Consensus or Strong Support but Significant Opposition

Option 5 – No Consensus/Divergence

Option 6 – Strong Support but Significant Opposition

*On reconciling Options 1 & 4:*

If, from the above tentative consensus listing, the group agrees that either Option 1 or Option 4 has sufficient consensus (but not the other), there will not be a conflict. Please therefore weigh in with your thoughts on the current consensus levels for these two options. I have seen some informal notes from WG members that support both Option 1 and Option 4, clarifying that they prefer Option 1 before Option 4, but please make such statements/clarification again.

Similarly, if we end up with Strong Support but Significant Opposition for both, we can just transmit both to the Council without the need for further discussion (but possibly with text that can include implementation guidance for Option 1).

For Option 1 – this will require a change to the UDRP and URS, so if this is the final consensus position, staff will add draft text to the report with implementation guidance.

*On Minority Statements:*

1) As Susan suggested on the call, Paul Tattersfield may want to consider filing a Minority Statement in regard to the Swaine memo, as despite several emails on the topic over the last month or two and on the Working Group calls, there has not been much support to remove the memo from the report.

2) Similarly, those who support recommendations/options that end up as either No Consensus/Divergence or Minority View should consider preparing Minority Statements (as I believe Phil has already indicated he may do).

Thank you to all who are contributing to a productive discussion. I ask that we refrain from questioning others’ credibility or credentials, stop bringing up old threads and posts again, and focus on getting to the final consensus. We had a good, friendly and effective call this Tuesday – let us continue that way also online!

Best regards,

Petter

--

Petter Rindforth, LL M

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