Dear Paul, Thank you for following up; that was indeed the staff email I was referring to on the Working Group call yesterday. If you can provide further explanations, staff believes that will be helpful to the group. For our part (and I note again that we are very cognizant of our proper role as staff) we simply do not read Professor Swaine’s memo the same way that you seem to have. It seems clear to us that Professor Swaine expressly notes that in a case where it is the IGO that initiates proceedings (in this case, under the UDRP or URS), it is possible, even likely, that this will mean it will have waived its jurisdictional immunity because of the Mutual Jurisdiction clause as currently worded. He does, however, correctly note that whether or not this will always be the case depends on the jurisdiction where the respondent chooses to file its case, as that is a question for that court to rule on. We note further that jurisdictional immunity is based in customary international law and, although in some cases has been enshrined as formal legal doctrine in certain international treaties, remains in many cases judge-made law. We also do not understand your statement that there is a “transfer” of immunity rights between the two scenarios you mention. We simply do not see where, when or how that can even happen - they are two separate types of legal proceedings, and while it is true that in the former scenario the IGO is the defendant and in the latter it is the plaintiff, as mentioned in the previous paragraph, Professor Swaine has clearly noted that where the IGO is the plaintiff/initiator of proceedings it will likely be deemed to have waived its immunity. More specifically, we do not understand what “transfer” of legal rights will have taken place as there are none, especially as jurisdictional immunity as a legal doctrine does not amount to substantive legal rights that can be transferred. We apologize if we appear to be trying to counter arguments brought forth by Working Group members since we are not ourselves participants in the group, but in our role as subject matter advisors we really hope that Paul can provide clarification. Thank you. Best regards, Mary & Steve From: Paul Tattersfield <gpmgroup@gmail.com> Date: Wednesday, June 13, 2018 at 06:57 To: Mary Wong <mary.wong@icann.org> Cc: "Corwin, Philip" <pcorwin@verisign.com>, "haforrestesq@gmail.com" <haforrestesq@gmail.com>, "Donna.Austin@team.neustar" <Donna.Austin@team.neustar>, "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org>, "rafik.dammak@gmail.com" <rafik.dammak@gmail.com> Subject: [Ext] Re: Question about Professor Swaine's memo Dear Mary, In today’s chat room you mentioned your reply in April to my very serious concerns about the Swaine Memo. The only email I have on file is the one below. I can deal with each of the points you raise should you so wish, however, each of those points are dependant on the incorrect assumption Professor Swaine made on pages 8 & 9 of his report.(on pages 83 & 84 of the WG final report) that immunity rights can be transferred between the two scenarios where the immunity question could come before a court. I have detailed below my concerns clearly in colour for the benefit of the working group so anyone can quickly see where and how the professor relied on what I believe to be an incorrect assumption and upon which the whole of his report then incorrectly relies. I have researched this issue and I can not find any jurisdiction, on any matter (not just domain names) in any forum where an IGO would be entitled to jurisdictional immunity after initiating proceedings. I have asked the working group if anyone can refute my reasoning several times on the email list and I raised it on the call prior to Phillip’s resignation. Each time not a single person has been able to demonstrate I am in fact incorrect and several people have indicated they believe I am right. I have discussed this matter with people with a broad range of interests including people who have represented IGO interests at ICANN and I can not find a single person who can find any issue with my reasoning. Given the whole of the WG’s final report is premised on Professor Swaine’s assumption being correct I would be very grateful if you can show me why any of my reasoning in the proof below is not correct and how Professor Swaine can possibly be right. Yours sincerely, Paul https://community.icann.org/pages/viewpage.action?pageId=56131791 [community.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_pag...> which is marked final and dated 6/17/2016. From that document: “3. Discussion (Bottom of page 8) The core question is whether an IGO is “entitled to immunity,” but the baseline assumptions may be disaggregated. The scope of IGO immunity would most clearly be at issue if the Mutual Jurisdiction provision were irrelevant and the IGO had not itself initiated judicial proceedings, since that would risk waiving any immunity to which it may be entitled, including to counterclaims. 20 This might be the case, for example, if a domain-name registrant sought a declaratory judgment against an IGO in relation to some actual or potential infringement. 21 That scenario, though not otherwise of concern here, does usefully isolate the question as to whether an IGO has a legitimate expectation that it would be entitled to immunity absent the UDRP. If such immunity is minimal or uncertain, then any compromises required by the UDRP loom less large; if the IGO would otherwise be entitled to immunity, however, its potential sacrifice seems more substantial. As explained in Part A, the answer depends. IGOs generally enjoy immunity under international law, but different jurisdictions apply the law differently, and even within the same jurisdiction different IGOs may be treated differently. Part B then introduces the complication that any such immunity may be waived through the Mutual Jurisdiction provision, and affording such waiver is not the same thing as violating an IGO’s immunity. Part C then discusses alternative ways to resolve the situation. … “ Green Initiating proceedings waives immunity including counterclaims Blue Scenario (a) below Red Transfers those rights of scenario (a) to scenario (b) The rest of the memo is then based on the incorrect assumption that rights can be transferred between the two scenarios. 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 cases. (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 Conclusion The working group has not considered (a) which hides the fact that in (b) an IGO is never entitled to jurisdictional immunity after choosing to initiate proceedings. The incorrect Swaine reasoning introduces irrelevant complexity which confuses rather than clarifies and should therefore have no place in the working group’s final report. [for those without colours here is an earlier link to a formatted .pdf version of the above reasoning http://mm.icann.org/pipermail/gnso-igo-ingo-crp/attachments/20180514/4478858... ] On Tue, Apr 24, 2018 at 11:51 PM, Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> wrote: Dear Paul and everyone, Staff is taking the liberty here of addressing your specific question about Professor Swaine’s memo, including your concern that it may have analyzed a situation where it is not the IGO that commences proceedings but rather is the subject of proceedings against it by a trademark owner. We hope the following extracts from the memo will be useful in clarifying the basis on which Professor Swaine gave his opinion. * In his memo, Professor Swaine notes that he “focuses on the most likely scenario: that in which an IGO, possessing rights in a name, abbreviation, emblem or the like arising under the Paris Convention … has complained and prevailed before an administrative panel in Uniform Domain Name Dispute Resolution Policy (“Policy” or “UDRP”) proceedings against a domain-name registrant—resulting in an order of cancellation or transfer to which the losing registrant objects by commencing a judicial action … “ (see Page 77 of the Working Group’s Initial Report, at Annex G). * He notes that “how matters unfold from that point [following the registrant’s filing suit] will depend on national law” (Page 81, Annex G) as to the question, “whether—in light of an IGO’s assent to Mutual Jurisdiction—its immunity remains. Here, the more likely answer is that it would not … The grant of Mutual Jurisdiction would likely establish such a waiver, as it would for a state entity otherwise entitled to foreign sovereign 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 from judicial process; in the status quo, however, it likely would not. Equitable considerations might influence any judicial analysis” (Page 78, Annex G). * Concluding that “In short, the Mutual Jurisdiction clause means that participating IGOs will have agreed to the possibility of a judicial process, notwithstanding any immunity to which they otherwise would be entitled. This will loom largest in cases in which the IGO is the complainant and benefited from an initial panel decision in its favor, such that the decision to resort to judicial proceedings against the IGO—and the risks that creates for adverse results—is made by the private party” (Page 82, Annex G), Professor Swaine focuses the remainder of his memo on this scenario. * As part of his analysis, Professor Swaine also proposed a number of alternative policy proposals for the Working Group’s consideration, including possibly amending the Mutual Jurisdiction clause or arbitration. These were noted and discussed on several Working Group calls in late 2016, prior to the issuance of the Initial Report in January 2017. While the above summary cannot reflect the entirety or depth of Professor Swaine’s advice, staff thought it might be helpful to recall these points given the question raised by Paul. The full memo was attached to the Initial Report as Annex G: https://gnso.icann.org/sites/default/files/file/field-file-attach/igo-ingo-c... [gnso.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_sites_de...>. Thanks and cheers 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: Tuesday, April 24, 2018 at 10:49 To: "Corwin, Philip" <pcorwin@verisign.com<mailto:pcorwin@verisign.com>> Cc: "haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>" <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>>, "Donna.Austin@team.neustar" <Donna.Austin@team.neustar>, "gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>" <gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>>, "rafik.dammak@gmail.com<mailto:rafik.dammak@gmail.com>" <rafik.dammak@gmail.com<mailto:rafik.dammak@gmail.com>> Subject: Re: [Gnso-igo-ingo-crp] GNSO Council Liaison Summary Report (Re: IGO-INGO Curative Rights Policy Development Process Working Group) Dear Philip, In your reply to George Kirikos you stated: “If it is judicial proceedings them [sic] of course an IGO's initiation of process indicates an implicit waiver of judicial immunity.” Thank you that is helpful. When I asked last year that the working group consider cases where an IGO could be entitled to immunity (i.e. when a TM holder seeks to secure a domain name owned by an IGO) I was told by those leading the working group that this scenario was not within the working group’s charter. Swaine is an analysis of cases where an IGO is entitled to jurisdictional immunity in judicial forums. Given you have just stated: “If it is judicial proceedings them [sic] of course an IGO's initiation of process indicates an implicit waiver of judicial immunity.” I fail to see how you can ever reconcile Swaine with ever being relevant to the working group’s final report. I don’t doubt it was expensive and interesting but if you want it to remain in the final report please can you reply showing how it could be in any way considered relevant? Yours sincerely, Paul On Fri, Apr 20, 2018 at 3:57 PM, Corwin, Philip <pcorwin@verisign.com<mailto:pcorwin@verisign.com>> wrote: Paul: Responding in an individual capacity -- Professor Swaine’s memo is an excellent explanation of the accepted scope of IGO judicial immunity and the varied analytical approaches that national courts take in determining the validity of IGO immunity defenses. I remain proud that we solicited this expert input on the central legal issue before the WG, and appreciative that ICANN funded the research. I am sure it will be of substantial assistance to whatever decisional body determines how best to resolve the inherent conflict between statutory rights of domain registrants and the desire of IGOs to have a means of addressing cybersquatting that does not require full surrender of valid claims to judicial immunity as a condition of bringing an action. 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: Thursday, April 19, 2018 7:32 PM To: Corwin, Philip <pcorwin@verisign.com<mailto:pcorwin@verisign.com>> Cc: icann@leap.com<mailto:icann@leap.com>; Donna.Austin@team.neustar; haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>; gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>; rafik.dammak@gmail.com<mailto:rafik.dammak@gmail.com> Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] GNSO Council Liaison Summary Report (Re: IGO-INGO Curative Rights Policy Development Process Working Group) Dear Philip, OK lets settle this once and for all: Show me examples of where an IGO is entitled to immunity after initiating proceedings. In either the initial proceedings or any follow-on proceedings? Any jurisdiction will do, any matter will do...... If you can not then Swaine is irrelevant to what the working group is considering. Yours sincerely, Paul. On Thu, Apr 19, 2018 at 1:18 PM, Corwin, Philip <pcorwin@verisign.com<mailto:pcorwin@verisign.com>> wrote: Paul: For the record, and in regard to this – The co-chairs will not refute this reasoning but are not prepared to discuss it - this I find very troubling, not just on this single issue level but the fact that working group officers can block its discussion for months and months on end. The discussion within the WG was not blocked by the co-chairs. It was blocked because George filed a section 3.7 Appeal at the point in time when the co-chairs wished to initiate the consensus call process. The co-chairs later offered to rescind holding an anonymous poll of the full WG but George rejected that approach and continued his appeal. So far as I am aware you supported George in these actions. Other than speaking with Susan in their individual capacity as WG members the co-chairs had no control over the content of her report. Speaking only for myself, I do not agree with your characterization of the Swaine memo and believe it was highly relevant to the central issue before the WG. 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: Thursday, April 19, 2018 5:01 AM To: George Kirikos <icann@leap.com<mailto:icann@leap.com>> Cc: Donna.Austin@team.neustar<mailto:Donna.Austin@team.neustar>; Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>>; gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>; rafik.dammak@gmail.com<mailto:rafik.dammak@gmail.com> Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] GNSO Council Liaison Summary Report (Re: IGO-INGO Curative Rights Policy Development Process Working Group) Dear ICANN, I agree with George, unfortunately I will not be able to attend the call later today as I have another meeting half way across the country which clashes with your call. I will listen to the call afterwards and submit any comments to the email list, sorry for any inconvenience. Please accept my apologies Briefly, I would also like to point out: The IGO's have accepted the principle of coexistence and as they are initiating the proceedings they have no immunity rights whatsoever in either the initial action or any follow on proceedings. This is an incredibly simple legal principle and I can not find ANY jurisdiction in the world on ANY matter not just domain names where an IGO would be entitled to do so. The matter is only confused because the Swaine reasoning looked at the case where others are initiating an action against the IGOs i.e. a trademark owner looking to seize an IGO's asset. Clearly the expert report is not relevant to the case the working group is considering where the IGO's are initiating proceedings. The co-chairs will not refute this reasoning but are not prepared to discuss it - this I find very troubling, not just on this single issue level but the fact that working group officers can block its discussion for months and months on end. I also note with some dismay that only 2 people in the private office sessions said they were not prepared to accept any other option than option 3 - the 2 co-chairs preferred option. We have an opportunity in this working group to set an example to the RPM working group using any IGO cases to show how UDRP can be easily improved for all parties in a way that does not tilt the balance in either side's favour but just improves process and reduces costs for all parties and meets the GAC's advice. It really is incredibly easy - Free private mediation and a separate (voluntary for registrants) arbitration track. If you want more registrants to CHOOSE arbitration simply make it cheaper, faster and less risky (name only) than the judicial route. This could be sorted in a handful of meetings and no interest group has lost anything! Yours sincerely, Paul. On Thu, Apr 19, 2018 at 1:38 AM, George Kirikos <icann@leap.com<mailto:icann@leap.com>> wrote: Hi folks, With regards to the Summary Report which is to be discussed tomorrow, there are several parts of it that I disagree with, which I'll discuss orally tomorrow during our call. However, some parts deserve a written response, given that they contain supporting links (and the WebEx interface really sucks, compared to Adobe Connect) so it's best to post them in advance of the call. 1. On page 2, it's asserted that "the number of active participants is extremely low" (it's also repeated on page 3, i.e. "small number of participants' views"). However, that's not consistent with the facts. For example, the IRTP-D PDP, the most recently completed GNSO PDP according to: https://gnso.icann.org/en/group-activities/inactive[gnso.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_group-2Dactivities_inactive&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=fHE_Cr9toYeLCsl-trxHT_K7CdrHZ4uAVUnv57xOoj8&s=2Pum4Md0vfHMKn5AUBAH3Z-j6dHKCuF_ZhREl6ZbzXU&e=> has its attendance logs at: https://community.icann.org/display/ITPIPDWG/Attendance+Log[community.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_display_ITPIPDWG_Attendance-2BLog&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=fHE_Cr9toYeLCsl-trxHT_K7CdrHZ4uAVUnv57xOoj8&s=SM46RS2yu2NqlCCV6jC_TqeffNSm5NO7Hrg2Z_zxdzw&e=> If one adds up the "total attended" column, and divide it by the total number of meetings, one obtains the average attendance per meeting: Sum of total attended column = 553 Total meetings = 56 Average = 9.88 per meeting It is of note that both the GNSO Council and the ICANN Board adopted their recommendations: https://gnso.icann.org/en/group-activities/active/irtp-d[gnso.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_group-2Dactivities_active_irtp-2Dd&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=fHE_Cr9toYeLCsl-trxHT_K7CdrHZ4uAVUnv57xOoj8&s=j2Zvmixa4aRhzYenT-dnA022yco2l1JnPBILd7c6P2A&e=> Now, let's compare this to the IGO PDP and its attendance records: https://community.icann.org/display/gnsoicrpmpdp/Attendance+Records[community.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_display_gnsoicrpmpdp_Attendance-2BRecords&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=fHE_Cr9toYeLCsl-trxHT_K7CdrHZ4uAVUnv57xOoj8&s=mwySLJqja9rtF5SFHTy4NbNmZuRg0TzTEP7xPbL3BMk&e=> Sum of total attended column = 711 Total meetings = 71 Average = 10.01 per meeting So, there has actually been HIGHER average attendance (10.01 vs 9.88 per meeting) in this IGO PDP, compared to the IRTP-D whose work was successfully completed. 2. On page 3, it's claimed that adoption of Option 4 "will require a Charter amendment" for that other PDP." I'm not convinced that that's a requirement. The RPM PDP charter is at: https://community.icann.org/display/RARPMRIAGPWG/WG+Charter?preview=3D/5872= 9944/58730036/Charter%20for%20RPM%20PDP_final.pdf[community.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_dis...> and states on page 3 of the charter that: "(b) Coordination with Other Parallel Efforts In the course of its work, the Working Group should monitor the progress of and, where appropriate, coordinate with, other ICANN groups that are working on topics that may overlap with or ***otherwise provide useful input to this PDP.*** .... In addition, the RPM PDP Working Group should also take into consideration the work/outcome of the TMCH Independent Review, the CCT Review, and ***any other relevant GNSO policy development***" (emphasis added) So, I think this situation was already covered by the RPM PDP's current charter, and doesn't need an amendment. As I mentioned earlier, there are other parts of the Summary Report I have concerns about, but I'll save them for tomorrow's call, as they don't require any links/quotes. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/[leap.com]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.leap.com_&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=fHE_Cr9toYeLCsl-trxHT_K7CdrHZ4uAVUnv57xOoj8&s=V1eNh6UuyYEnssdELGy5BGrOMHYiXX7md_UYRrQBKek&e=> On Fri, Apr 13, 2018 at 11:36 AM, Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> wrote:

Dear all,

On behalf of Susan Kawaguchi, GNSO Council liaison to this PDP Working Group, please find attached the summary report that Susan mentions in her 10 April email (below). You should already have received the calendar invitation and call details for the next Working Group call, currently scheduled for next Thursday 19 April at our usual time of 1600 UTC. Susan will be on the call to discuss the report and proposed next steps with everyone.

Thanks and cheers

Mary & Steve

From: Susan Kawaguchi <susankpolicy@gmail.com<mailto:susankpolicy@gmail.com>> Date: Tuesday, April 10, 2018 at 12:26 To: "gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>" <gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>> Cc: Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>>, Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>>, Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>> Subject: [Ext] IGO-INGO Curative Rights Policy Development Process Working Group

Dear IGO-INGO Curative Rights Policy Development Process Working Group members,

I write to update you, in my role as GNSO Council Liaison to this Working Group, on the status of the WG member consultation process that was set out in my email of 9 March 2018 and then actioned during ICANN61 and following.

As envisaged in my email of 9 March, staff and I are preparing a report for the Working Group on the input received at and since ICANN61, with recommendations on next steps from me and Heather Forrest, the GNSO Chair. We anticipate posting the report to the WG list at the end of this week, for discussion at a WG meeting to be held at the group's usual time next Thursday, 19 April. At that meeting, I will be happy to present a summary of the report and its recommendations, and answer questions from WG members.

An email from staff with call details will be circulated shortly. Bear in mind that we do not have Adobe Connect, so alternate arrangements will be made to support our call.

In the meantime, I sincerely thank you for taking the time to provide me with your feedback, which contributes to the substantial work of the group on this challenging policy area.

Kind regards,

Susan Kawaguchi

Councilor for the Business Constituency

_______________________________________________ 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

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

Please find attached a pdf version of my reasoning for the formal record as the email list does not archive colours. On Tue, Jun 12, 2018 at 11:57 PM, Paul Tattersfield <gpmgroup@gmail.com> wrote:

Dear Mary,

In today’s chat room you mentioned your reply in April to my very serious concerns about the Swaine Memo. The only email I have on file is the one below. I can deal with each of the points you raise should you so wish, however, each of those points are dependant on the incorrect assumption Professor Swaine made on pages 8 & 9 of his report.(on pages 83 & 84 of the WG final report) that immunity rights can be transferred between the two scenarios where the immunity question could come before a court.

I have detailed below my concerns clearly in colour for the benefit of the working group so anyone can quickly see where and how the professor relied on what I believe to be an incorrect assumption and upon which the whole of his report then incorrectly relies.

I have researched this issue and I can not find any jurisdiction, on any matter (not just domain names) in any forum where an IGO would be entitled to jurisdictional immunity after initiating proceedings. I have asked the working group if anyone can refute my reasoning several times on the email list and I raised it on the call prior to Phillip’s resignation. Each time not a single person has been able to demonstrate I am in fact incorrect and several people have indicated they believe I am right. I have discussed this matter with people with a broad range of interests including people who have represented IGO interests at ICANN and I can not find a single person who can find any issue with my reasoning.

Given the whole of the WG’s final report is premised on Professor Swaine’s assumption being correct I would be very grateful if you can show me why any of my reasoning in the proof below is not correct and how Professor Swaine can possibly be right.

Yours sincerely,

Paul

https://community.icann.org/pages/viewpage.action?pageId=56131791 which is marked final and dated 6/17/2016.

From that document:

*“3. Discussion (Bottom of page 8) The core question is whether an IGO is “entitled to immunity,” but the baseline assumptions may be disaggregated. The scope of IGO immunity would most clearly be at issue if the Mutual Jurisdiction provision were irrelevant and the IGO had not itself initiated judicial proceedings, since that would risk waiving any immunity to which it may be entitled, including to counterclaims. 20 This might be the case, for example, if a domain-name registrant sought a declaratory judgment against an IGO in relation to some actual or potential infringement. 21 That scenario, though not otherwise of concern here, does usefully isolate the question as to whether an IGO has a legitimate expectation that it would be entitled to immunity absent the UDRP. If such immunity is minimal or uncertain, then any compromises required by the UDRP loom less large; if the IGO would otherwise be entitled to immunity, however, its potential sacrifice seems more substantial. As explained in Part A, the answer depends. IGOs generally enjoy immunity under international law, but different jurisdictions apply the law differently, and even within the same jurisdiction different IGOs may be treated differently. Part B then introduces the complication that any such immunity may be waived through the Mutual Jurisdiction provision, and affording such waiver is not the same thing as violating an IGO’s immunity. Part C then discusses alternative ways to resolve the situation. … “*

Green Initiating proceedings waives immunity including counterclaims Blue Scenario (a) below Red Transfers those rights of scenario (a) to scenario (b)

The rest of the memo is then based on the incorrect assumption that rights can be transferred between the two scenarios.

*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 cases.

(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

*Conclusion * The working group has not considered (a) which hides the fact that in (b) an IGO is never entitled to jurisdictional immunity after choosing to initiate proceedings. The incorrect Swaine reasoning introduces irrelevant complexity which confuses rather than clarifies and should therefore have no place in the working group’s final report.

[for those without colours here is an earlier link to a formatted .pdf version of the above reasoning http://mm.icann.org/pipermail/gnso-igo-ingo-crp/attachments/ 20180514/44788589/VeryseriousissueswithTheSwaineMemothepropo sedFinalReport-0001.pdf ]

On Tue, Apr 24, 2018 at 11:51 PM, Mary Wong <mary.wong@icann.org> wrote:

...

Dear Paul and everyone,

Staff is taking the liberty here of addressing your specific question about Professor Swaine’s memo, including your concern that it may have analyzed a situation where it is not the IGO that commences proceedings but rather is the subject of proceedings against it by a trademark owner. We hope the following extracts from the memo will be useful in clarifying the basis on which Professor Swaine gave his opinion.

- In his memo, Professor Swaine notes that he *“focuses on the most likely scenario: that in which an IGO, possessing rights in a name, abbreviation, emblem or the like arising under the Paris Convention … has complained and prevailed before an administrative panel in Uniform Domain Name Dispute Resolution Policy (“Policy” or “UDRP”) proceedings against a domain-name registrant—resulting in an order of cancellation or transfer to which the losing registrant objects by commencing a judicial action … “* (see Page 77 of the Working Group’s Initial Report, at Annex G).

- He notes that *“how matters unfold from that point [following the registrant’s filing suit] will depend on national law”* (Page 81, Annex G) as to the question, “*whether—in light of an IGO’s assent to Mutual Jurisdiction—its immunity remains. Here, the more likely answer is that it would not … The grant of Mutual Jurisdiction would likely establish such a waiver, as it would for a state entity otherwise entitled to foreign sovereign 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 from judicial process; in the status quo, however, it likely would not. Equitable considerations might influence any judicial analysis” *(Page 78, Annex G).

- Concluding that “*In short, the Mutual Jurisdiction clause means that participating IGOs will have agreed to the possibility of a judicial process, notwithstanding any immunity to which they otherwise would be entitled. This will loom largest in cases in which the IGO is the complainant and benefited from an initial panel decision in its favor, such that the decision to resort to judicial proceedings against the IGO—and the risks that creates for adverse results—is made by the private party”* (Page 82, Annex G), Professor Swaine focuses the remainder of his memo on this scenario.

- As part of his analysis, Professor Swaine also proposed a number of alternative policy proposals for the Working Group’s consideration, including possibly amending the Mutual Jurisdiction clause or arbitration. These were noted and discussed on several Working Group calls in late 2016, prior to the issuance of the Initial Report in January 2017.

While the above summary cannot reflect the entirety or depth of Professor Swaine’s advice, staff thought it might be helpful to recall these points given the question raised by Paul. The full memo was attached to the Initial Report as Annex G: https://gnso.icann.org/sites/d efault/files/file/field-file-attach/igo-ingo-crp-access-init ial-19jan17-en.pdf.

Thanks and cheers

Mary & Steve

*From: *Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org> on behalf of Paul Tattersfield <gpmgroup@gmail.com> *Date: *Tuesday, April 24, 2018 at 10:49 *To: *"Corwin, Philip" <pcorwin@verisign.com> *Cc: *"haforrestesq@gmail.com" <haforrestesq@gmail.com>, "Donna.Austin@team.neustar" <Donna.Austin@team.neustar>, " gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org>, " rafik.dammak@gmail.com" <rafik.dammak@gmail.com> *Subject: *Re: [Gnso-igo-ingo-crp] GNSO Council Liaison Summary Report (Re: IGO-INGO Curative Rights Policy Development Process Working Group)

Dear Philip,

In your reply to George Kirikos you stated:

“If it is judicial proceedings them [sic] of course an IGO's initiation of process indicates an implicit waiver of judicial immunity.”

Thank you that is helpful.

When I asked last year that the working group consider cases where an IGO could be entitled to immunity (i.e. when a TM holder seeks to secure a domain name owned by an IGO) I was told by those leading the working group that this scenario was not within the working group’s charter.

Swaine is an analysis of cases where an IGO is entitled to jurisdictional immunity in judicial forums. Given you have just stated:

“If it is judicial proceedings them [sic] of course an IGO's initiation of process indicates an implicit waiver of judicial immunity.”

I fail to see how you can ever reconcile Swaine with ever being relevant to the working group’s final report. I don’t doubt it was expensive and interesting but if you want it to remain in the final report please can you reply showing how it could be in any way considered relevant?

Yours sincerely,

Paul

On Fri, Apr 20, 2018 at 3:57 PM, Corwin, Philip <pcorwin@verisign.com> wrote:

Paul:

Responding in an individual capacity -- Professor Swaine’s memo is an excellent explanation of the accepted scope of IGO judicial immunity and the varied analytical approaches that national courts take in determining the validity of IGO immunity defenses. I remain proud that we solicited this expert input on the central legal issue before the WG, and appreciative that ICANN funded the research.

I am sure it will be of substantial assistance to whatever decisional body determines how best to resolve the inherent conflict between statutory rights of domain registrants and the desire of IGOs to have a means of addressing cybersquatting that does not require full surrender of valid claims to judicial immunity as a condition of bringing an action.

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:* Thursday, April 19, 2018 7:32 PM *To:* Corwin, Philip <pcorwin@verisign.com> *Cc:* icann@leap.com; Donna.Austin@team.neustar; haforrestesq@gmail.com; gnso-igo-ingo-crp@icann.org; rafik.dammak@gmail.com

*Subject:* [EXTERNAL] Re: [Gnso-igo-ingo-crp] GNSO Council Liaison Summary Report (Re: IGO-INGO Curative Rights Policy Development Process Working Group)

Dear Philip,

OK lets settle this once and for all:

Show me examples of where an IGO is entitled to immunity after initiating proceedings. In either the initial proceedings or any follow-on proceedings?

Any jurisdiction will do, any matter will do......

If you can not then Swaine is irrelevant to what the working group is considering.

Yours sincerely,

Paul.

On Thu, Apr 19, 2018 at 1:18 PM, Corwin, Philip <pcorwin@verisign.com> wrote:

Paul:

For the record, and in regard to this –

The co-chairs will not refute this reasoning but are not prepared to discuss it - this I find very troubling, not just on this single issue level but the fact that working group officers can block its discussion for months and months on end.

The discussion within the WG was not blocked by the co-chairs. It was blocked because George filed a section 3.7 Appeal at the point in time when the co-chairs wished to initiate the consensus call process. The co-chairs later offered to rescind holding an anonymous poll of the full WG but George rejected that approach and continued his appeal. So far as I am aware you supported George in these actions.

Other than speaking with Susan in their individual capacity as WG members the co-chairs had no control over the content of her report.

Speaking only for myself, I do not agree with your characterization of the Swaine memo and believe it was highly relevant to the central issue before the WG.

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:* Thursday, April 19, 2018 5:01 AM *To:* George Kirikos <icann@leap.com> *Cc:* Donna.Austin@team.neustar; Heather Forrest <haforrestesq@gmail.com>; gnso-igo-ingo-crp@icann.org; rafik.dammak@gmail.com *Subject:* [EXTERNAL] Re: [Gnso-igo-ingo-crp] GNSO Council Liaison Summary Report (Re: IGO-INGO Curative Rights Policy Development Process Working Group)

Dear ICANN,

I agree with George, unfortunately I will not be able to attend the call later today as I have another meeting half way across the country which clashes with your call. I will listen to the call afterwards and submit any comments to the email list, sorry for any inconvenience. Please accept my apologies

Briefly, I would also like to point out:

The IGO's have accepted the principle of coexistence and as they are initiating the proceedings they have no immunity rights whatsoever in either the initial action or any follow on proceedings. This is an incredibly simple legal principle and I can not find ANY jurisdiction in the world on ANY matter not just domain names where an IGO would be entitled to do so.

The matter is only confused because the Swaine reasoning looked at the case where others are initiating an action against the IGOs i.e. a trademark owner looking to seize an IGO's asset. Clearly the expert report is not relevant to the case the working group is considering where the IGO's are initiating proceedings.

The co-chairs will not refute this reasoning but are not prepared to discuss it - this I find very troubling, not just on this single issue level but the fact that working group officers can block its discussion for months and months on end. I also note with some dismay that only 2 people in the private office sessions said they were not prepared to accept any other option than option 3 - the 2 co-chairs preferred option.

We have an opportunity in this working group to set an example to the RPM working group using any IGO cases to show how UDRP can be easily improved for all parties in a way that does not tilt the balance in either side's favour but just improves process and reduces costs for all parties and meets the GAC's advice.

It really is incredibly easy - Free private mediation and a separate (voluntary for registrants) arbitration track. If you want more registrants to CHOOSE arbitration simply make it cheaper, faster and less risky (name only) than the judicial route. This could be sorted in a handful of meetings and no interest group has lost anything!

Yours sincerely,

Paul.

On Thu, Apr 19, 2018 at 1:38 AM, George Kirikos <icann@leap.com> wrote:

Hi folks,

With regards to the Summary Report which is to be discussed tomorrow, there are several parts of it that I disagree with, which I'll discuss orally tomorrow during our call. However, some parts deserve a written response, given that they contain supporting links (and the WebEx interface really sucks, compared to Adobe Connect) so it's best to post them in advance of the call.

1. On page 2, it's asserted that "the number of active participants is extremely low" (it's also repeated on page 3, i.e. "small number of participants' views"). However, that's not consistent with the facts. For example, the IRTP-D PDP, the most recently completed GNSO PDP according to:

https://gnso.icann.org/en/group-activities/inactive[gnso.icann.org] <https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_group...>

has its attendance logs at:

https://community.icann.org/display/ITPIPDWG/Attendance+Log[ community.icann.org] <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_dis...>

If one adds up the "total attended" column, and divide it by the total number of meetings, one obtains the average attendance per meeting:

Sum of total attended column = 553 Total meetings = 56 Average = 9.88 per meeting

It is of note that both the GNSO Council and the ICANN Board adopted their recommendations:

https://gnso.icann.org/en/group-activities/active/irtp-d[gnso.icann.org] <https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_group...>

Now, let's compare this to the IGO PDP and its attendance records:

https://community.icann.org/display/gnsoicrpmpdp/Attendance+ Records[community.icann.org] <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_dis...>

Sum of total attended column = 711 Total meetings = 71 Average = 10.01 per meeting

So, there has actually been HIGHER average attendance (10.01 vs 9.88 per meeting) in this IGO PDP, compared to the IRTP-D whose work was successfully completed.

2. On page 3, it's claimed that adoption of Option 4 "will require a Charter amendment" for that other PDP." I'm not convinced that that's a requirement. The RPM PDP charter is at:

https://community.icann.org/display/RARPMRIAGPWG/WG+Charter? preview=3D/5872= 9944/58730036/Charter%20for%20RPM%20PDP_final.pdf[community.icann.org] <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_dis...>

and states on page 3 of the charter that:

"(b) Coordination with Other Parallel Efforts In the course of its work, the Working Group should monitor the progress of and, where appropriate, coordinate with, other ICANN groups that are working on topics that may overlap with or ***otherwise provide useful input to this PDP.*** .... In addition, the RPM PDP Working Group should also take into consideration the work/outcome of the TMCH Independent Review, the CCT Review, and ***any other relevant GNSO policy development***"

(emphasis added)

So, I think this situation was already covered by the RPM PDP's current charter, and doesn't need an amendment.

As I mentioned earlier, there are other parts of the Summary Report I have concerns about, but I'll save them for tomorrow's call, as they don't require any links/quotes.

Sincerely,

George Kirikos 416-588-0269 http://www.leap.com/[leap.com] <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.leap.com_&d=DwMFaQ&c...>

On Fri, Apr 13, 2018 at 11:36 AM, Mary Wong <mary.wong@icann.org> wrote:

...

Dear all,

On behalf of Susan Kawaguchi, GNSO Council liaison to this PDP Working Group, please find attached the summary report that Susan mentions in her 10 April email (below). You should already have received the calendar invitation and call details for the next Working Group call, currently scheduled for next Thursday 19 April at our usual time of 1600 UTC. Susan will be on the call to discuss the report and proposed next steps with everyone.

Thanks and cheers

Mary & Steve

From: Susan Kawaguchi <susankpolicy@gmail.com> Date: Tuesday, April 10, 2018 at 12:26 To: "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Cc: Heather Forrest <haforrestesq@gmail.com>, Mary Wong <mary.wong@icann.org>, Steve Chan <steve.chan@icann.org> Subject: [Ext] IGO-INGO Curative Rights Policy Development Process Working Group

Dear IGO-INGO Curative Rights Policy Development Process Working Group members,

I write to update you, in my role as GNSO Council Liaison to this Working Group, on the status of the WG member consultation process that was set out in my email of 9 March 2018 and then actioned during ICANN61 and following.

As envisaged in my email of 9 March, staff and I are preparing a report for the Working Group on the input received at and since ICANN61, with recommendations on next steps from me and Heather Forrest, the GNSO Chair. We anticipate posting the report to the WG list at the end of this week, for discussion at a WG meeting to be held at the group's usual time next Thursday, 19 April. At that meeting, I will be happy to present a summary of the report and its recommendations, and answer questions from WG members.

An email from staff with call details will be circulated shortly. Bear in mind that we do not have Adobe Connect, so alternate arrangements will be made to support our call.

In the meantime, I sincerely thank you for taking the time to provide me with your feedback, which contributes to the substantial work of the group on this challenging policy area.

Kind regards,

Susan Kawaguchi

Councilor for the Business Constituency

...

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