Re: [Gnso-igo-ingo-crp] [Ext] Re: Question about Professor Swaine's memo
Mary, With all respect, you are very very incorrect regarding the jurisprudence of sovereign immunity. The doctrine does exist in several treaties. Treaties in turn (by definition) constitute the supreme law of each jurisdiction having agreed to them. This is the case in the US just as in other jurisdictions. The doctrine also exists in statutory form in virtually all jurisdictions, including the US. The doctrine is NOT a judicially created doctrine. The APPLICATION of the law (either via treaty or statute) is a function of the judiciary. In common law jurisdictions, the resulting case opinion can be cited as president in other disputes as relevant and if applicable are controlling in any future dispute brought before subservient courts in the same judiciary branch (e.g. In the US, decisions of the US Supreme Court bind all federal courts but they bind State courts only as to matters of federal law - State supreme courts govern those state courts below them in authority with respect to state law matters). The same applies in virtually all, if not all, other countries. In noncommon law jurisdictions prior judicial decisions are informative only but not precedential. I know you are not a lawyer and are trying to help. However, mis-stating the law is in reality not helpful and leads to a great deal of confusion which takes a good amount of effort to rectify. As to Professor Swain, you are confusing two issues namely: Impact when the IGO brings an action as the plaintiff (or claimant) Impact when the IGO is merely a defendant. In the former, the IGO is always deemed to have waived immunity. This is stated in Swain¹s memo. In the latter, the IGO preserves issues of immunity because it did not initiate the process. It can be held to NOT have immunity based on the reason it has been brought into court. In the UDRP context, the IGO initiated the process AND that process expressly contains a right to seek post UDRP litigation remedies. As concerns the Respondent, the right to post-UDRP litigation is an absolute right. As concerns the Complainant (the IGO), post-UDRP litigation remains an option. The Policy clearly provides for the selection of a Mutual Jurisdiction that applies in the event of post-UDRP litigation BUT the selection is make ONLY by the Complainant. There is no provision by which the Respondent agrees to any jurisdiction for post-UDRP litigation. Thus, because the Policy contains an express right for the Respondent to pursue post-UDRP litigation AND contains a MJ selection for that very purpose, it is the NGO who has waived immunity claims. Thus, the post-UDRP litigation is in effect a continuation of the prior UDRP an action brought by the NGO. The issue is far different from that occurring if the domain owner merely initiated litigation to seek declaratory relief (a declaration that the domain name did not infringe). In such a case, it would be new litigation and not a continuation of process. The NGO thus retains any immunity defense it otherwise had. In his memo, Swain (rather in-artfully) switches from one situation to another but does not clarify that the analysis changes depending on the situation. This leads to a confusion as to whether the issue of immunity remains applicable in the context of post-UDRP litigation. I believe this is what is eating at Paul. As to the transfer, I believe Paul is referring to the fact that the UDRP itself has resulted in a decision to transfer a property right from the Respondent to the NGO. The Respondent has the right to suspend the effect of the UDRP decision (transfer of the domain) by timely filing litigation in the MJ. The UDRP decision is then held in abeyance pending the outcome of the post-UDRP litigation. Thus, in effect a transfer of rights has occurred. It is just the carrying out of the actual transfer that has been deferred. I think we can all agree that the Policy was never intended to allow for such post-UDRP litigation but then preclude any remedy to the Respondent because of immunity issues belatedly asserted by the UDRP complainant. Such would undercut the most basic of foundational elements of the policy that the rights to judicial review remain. I hope this helps. @Paul, please chip in if I have made an error above. Paul From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org> on behalf of Mary Wong <mary.wong@icann.org> Date: Wednesday, June 13, 2018 at 7:19 PM To: Paul Tattersfield <gpmgroup@gmail.com> Cc: "Donna.Austin@team.neustar" <Donna.Austin@team.neustar>, "haforrestesq@gmail.com" <haforrestesq@gmail.com>, "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] [Ext] Re: Question about Professor Swaine's memo
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 Swaine¹s 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 ³transfer² 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 ³transfer² 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 today¹s 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 Phillip¹s 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 WG¹s final report is premised on Professor Swaine¹s 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... s_viewpage.action-3FpageId-3D56131791&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS 6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=EBKiNgHmqL68bsF aEsNNKlLqZO_hrEY4p0DHiAv1NSw&s=ahWQUHMJaL9LDnMiir5n2aozXA9CcznLOgRXr0OmlM8&e=> which is marked final and dated 6/17/2016.
From that document: ³3. Discussion (Bottom of page 8)
The core question is whether an IGO is ³entitled to immunity,² 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 IGO¹s immunity. Part C then discusses alternative ways to resolve the situation. ³
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 group¹s 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... VeryseriousissueswithTheSwaineMemotheproposedFinalReport-0001.pdf <http://mm.icann.org/pipermail/gnso-igo-ingo-crp/attachments/20180514/4478858... /VeryseriousissueswithTheSwaineMemotheproposedFinalReport-0001.pdf> ]
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 Swaine¹s 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 ³focuses 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 (³Policy² or ³UDRP²) proceedings against a domain-name registrantresulting in an order of cancellation or transfer to which the losing registrant objects by commencing a judicial action ³ (see Page 77 of the Working Group¹s Initial Report, at Annex G).
* He notes that ³how matters unfold from that point [following the registrant¹s filing suit] will depend on national law² (Page 81, Annex G) as to the question, ³whetherin light of an IGO¹s assent to Mutual Jurisdictionits 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 analysis² (Page 78, Annex G).
* Concluding that ³In 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 IGOand the risks that creates for adverse resultsis made by the private party² (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 Group¹s 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 Swaine¹s 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... p-access-initial-19jan17-en.pdf [gnso.icann.org] <https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_sites_de fault_files_file_field-2Dfile-2Dattach_igo-2Dingo-2Dcrp-2Daccess-2Dinitial-2D 19jan17-2Den.pdf&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ6 9mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=EBKiNgHmqL68bsFaEsNNKlLqZO_hrEY4p0 DHiAv1NSw&s=Z4RHQ4HEv2BsNDE9-ScaJEfqb2_7E39gOxLYWD1KHnU&e=> .
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:
³If it is judicial proceedings them [sic] of course an IGO's initiation of process indicates an implicit waiver of judicial immunity.²
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 group¹s charter.
Swaine is an analysis of cases where an IGO is entitled to jurisdictional immunity in judicial forums. Given you have just stated:
³If it is judicial proceedings them [sic] of course an IGO's initiation of process indicates an implicit waiver of judicial immunity.²
I fail to see how you can ever reconcile Swaine with ever being relevant to the working group¹s final report. I don¹t 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 Swaine¹s 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-3 D12061-2BBluemont-2BWay-2B-250D-250AReston-2C-2BVA-2B20190-26entry-3Dgmail-2 6source-3Dg&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe -idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=fHE_Cr9toYeLCsl-trxHT_K7CdrHZ4uAVUnv5 7xOoj8&s=CoaOz-PewsfP8inMwD1N5msXqqp7rInZbzZOhQAWtCc&e=> 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- 3D12061-2BBluemont-2BWay-2B-250D-250AReston-2C-2BVA-2B20190-26entry-3Dgmail -26source-3Dg&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69 mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=fHE_Cr9toYeLCsl-trxHT_K7CdrHZ4uAV Unv57xOoj8&s=CoaOz-PewsfP8inMwD1N5msXqqp7rInZbzZOhQAWtCc&e=> 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_gr oup-2Dactivities_inactive&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xc l4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=fHE_Cr9toYeLCsl-trx HT_K7CdrHZ4uAVUnv57xOoj8&s=2Pum4Md0vfHMKn5AUBAH3Z-j6dHKCuF_ZhREl6ZbzXU&e=>
has its attendance logs at:
https://community.icann.org/display/ITPIPDWG/Attendance+Log[community.ican n.org] <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_ display_ITPIPDWG_Attendance-2BLog&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS 6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=fHE_Cr9toYe LCsl-trxHT_K7CdrHZ4uAVUnv57xOoj8&s=SM46RS2yu2NqlCCV6jC_TqeffNSm5NO7Hrg2Z_z xdzw&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_gr oup-2Dactivities_active_irtp-2Dd&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6 sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=fHE_Cr9toYeL Csl-trxHT_K7CdrHZ4uAVUnv57xOoj8&s=j2Zvmixa4aRhzYenT-dnA022yco2l1JnPBILd7c6 P2A&e=>
Now, let's compare this to the IGO PDP and its attendance records:
https://community.icann.org/display/gnsoicrpmpdp/Attendance+Records[commun ity.icann.org] <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_ display_gnsoicrpmpdp_Attendance-2BRecords&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSV zgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=fHE _Cr9toYeLCsl-trxHT_K7CdrHZ4uAVUnv57xOoj8&s=mwySLJqja9rtF5SFHTy4NbNmZuRg0Tz TEP7xPbL3BMk&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/587 2= 9944/58730036/Charter%20for%20RPM%20PDP_final.pdf[community.icann.org] <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_ display_RARPMRIAGPWG_WG-2BCharter-3Fpreview-3D3D_5872-3D9944_58730036_Char ter-2520for-2520RPM-2520PDP-5Ffinal.pdf&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzg fkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=fHE_C r9toYeLCsl-trxHT_K7CdrHZ4uAVUnv57xOoj8&s=ps70jf_1KqUAI3uRTbpQJ4U149wbZN0CH dG6lKySm40&e=>
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=DwMFa Q&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2 w3xl7xb5cjS_7sB4h6Y&m=fHE_Cr9toYeLCsl-trxHT_K7CdrHZ4uAVUnv57xOoj8&s=V1eNh6 UuyYEnssdELGy5BGrOMHYiXX7md_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 <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 <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
FYI- https://www.icann.org/profiles/mary-wong Mary Wong joined ICANN as a Senior Policy Director in 2013. Mary is a member of the Policy Team performing global policy development work and her responsibilities encompass managerial, analytical and research related duties. She also supports the Generic Names Supporting Organization (GNSO) with legal and policy advice and research. Prior to joining ICANN, Mary was a tenured professor of law in the United States and she has also been associated with the technology transactions practice group of a major international law firm. She holds a Bachelor of Laws degree from the National University of Singapore and a Master of Laws degree from Cambridge University in the United Kingdom. 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: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of Paul Keating Sent: Wednesday, June 13, 2018 2:07 PM To: Mary Wong <mary.wong@icann.org>; Paul Tattersfield <gpmgroup@gmail.com> Cc: haforrestesq@gmail.com; Donna.Austin@team.neustar; gnso-igo-ingo-crp@icann.org; rafik.dammak@gmail.com Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] [Ext] Re: Question about Professor Swaine's memo Mary, With all respect, you are very very incorrect regarding the jurisprudence of sovereign immunity. The doctrine does exist in several treaties. Treaties in turn (by definition) constitute the supreme law of each jurisdiction having agreed to them. This is the case in the US just as in other jurisdictions. The doctrine also exists in statutory form in virtually all jurisdictions, including the US. The doctrine is NOT a judicially created doctrine. The APPLICATION of the law (either via treaty or statute) is a function of the judiciary. In common law jurisdictions, the resulting case opinion can be cited as president in other disputes as relevant and if applicable are controlling in any future dispute brought before subservient courts in the same judiciary branch (e.g. In the US, decisions of the US Supreme Court bind all federal courts but they bind State courts only as to matters of federal law - State supreme courts govern those state courts below them in authority with respect to state law matters). The same applies in virtually all, if not all, other countries. In non-common law jurisdictions prior judicial decisions are informative only but not precedential. I know you are not a lawyer and are trying to help. However, mis-stating the law is in reality not helpful and leads to a great deal of confusion which takes a good amount of effort to rectify. As to Professor Swain, you are confusing two issues namely: Impact when the IGO brings an action as the plaintiff (or claimant) Impact when the IGO is merely a defendant. In the former, the IGO is always deemed to have waived immunity. This is stated in Swain's memo. In the latter, the IGO preserves issues of immunity because it did not initiate the process. It can be held to NOT have immunity based on the reason it has been brought into court. In the UDRP context, the IGO initiated the process AND that process expressly contains a right to seek post UDRP litigation remedies. As concerns the Respondent, the right to post-UDRP litigation is an absolute right. As concerns the Complainant (the IGO), post-UDRP litigation remains an option. The Policy clearly provides for the selection of a Mutual Jurisdiction that applies in the event of post-UDRP litigation BUT the selection is make ONLY by the Complainant. There is no provision by which the Respondent agrees to any jurisdiction for post-UDRP litigation. Thus, because the Policy contains an express right for the Respondent to pursue post-UDRP litigation AND contains a MJ selection for that very purpose, it is the NGO who has waived immunity claims. Thus, the post-UDRP litigation is in effect a continuation of the prior UDRP - an action brought by the NGO. The issue is far different from that occurring if the domain owner merely initiated litigation to seek declaratory relief (a declaration that the domain name did not infringe). In such a case, it would be new litigation and not a continuation of process. The NGO thus retains any immunity defense it otherwise had. In his memo, Swain (rather in-artfully) switches from one situation to another but does not clarify that the analysis changes depending on the situation. This leads to a confusion as to whether the issue of immunity remains applicable in the context of post-UDRP litigation. I believe this is what is eating at Paul. As to the transfer, I believe Paul is referring to the fact that the UDRP itself has resulted in a decision to transfer a property right from the Respondent to the NGO. The Respondent has the right to suspend the effect of the UDRP decision (transfer of the domain) by timely filing litigation in the MJ. The UDRP decision is then held in abeyance pending the outcome of the post-UDRP litigation. Thus, in effect a transfer of rights has occurred. It is just the carrying out of the actual transfer that has been deferred. I think we can all agree that the Policy was never intended to allow for such post-UDRP litigation but then preclude any remedy to the Respondent because of immunity issues belatedly asserted by the UDRP complainant. Such would undercut the most basic of foundational elements of the policy - that the rights to judicial review remain. I hope this helps. @Paul, please chip in if I have made an error above. Paul From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org<mailto:gnso-igo-ingo-crp-bounces@icann.org>> on behalf of Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> Date: Wednesday, June 13, 2018 at 7:19 PM To: Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> Cc: "Donna.Austin@team.neustar<mailto:Donna.Austin@team.neustar>" <Donna.Austin@team.neustar<mailto:Donna.Austin@team.neustar>>, "haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>" <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>>, "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] [Ext] Re: Question about Professor Swaine's memo 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<mailto:gpmgroup@gmail.com>> Date: Wednesday, June 13, 2018 at 06:57 To: Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> Cc: "Corwin, Philip" <pcorwin@verisign.com<mailto:pcorwin@verisign.com>>, "haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>" <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>>, "Donna.Austin@team.neustar<mailto:Donna.Austin@team.neustar>" <Donna.Austin@team.neustar<mailto: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: [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<mailto:Donna.Austin@team.neustar>" <Donna.Austin@team.neustar<mailto: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<mailto: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 _______________________________________________ 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
Well it seems I was incorrect on saying Mary was not an attorney. However, Mary and no offense intended - you still got it completely wrong. Paul From: "Corwin, Philip" <pcorwin@verisign.com> Date: Wednesday, June 13, 2018 at 8:17 PM To: Paul Keating <paul@law.es>, "mary.wong@icann.org" <mary.wong@icann.org>, "gpmgroup@gmail.com" <gpmgroup@gmail.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] [Ext] Re: Question about Professor Swaine's memo
FYI
https://www.icann.org/profiles/mary-wong <https://www.icann.org/profiles/mary-wong>
Mary Wong joined ICANN as a Senior Policy Director in 2013. Mary is a member of the Policy Team performing global policy development work and her responsibilities encompass managerial, analytical and research related duties. She also supports the Generic Names Supporting Organization (GNSO) with legal and policy advice and research. Prior to joining ICANN, Mary was a tenured professor of law in the United States and she has also been associated with the technology transactions practice group of a major international law firm. She holds a Bachelor of Laws degree from the National University of Singapore and a Master of Laws degree from Cambridge University in the United Kingdom.
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: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of Paul Keating Sent: Wednesday, June 13, 2018 2:07 PM To: Mary Wong <mary.wong@icann.org>; Paul Tattersfield <gpmgroup@gmail.com> Cc: haforrestesq@gmail.com; Donna.Austin@team.neustar; gnso-igo-ingo-crp@icann.org; rafik.dammak@gmail.com Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] [Ext] Re: Question about Professor Swaine's memo
Mary,
With all respect, you are very very incorrect regarding the jurisprudence of sovereign immunity.
The doctrine does exist in several treaties. Treaties in turn (by definition) constitute the supreme law of each jurisdiction having agreed to them. This is the case in the US just as in other jurisdictions.
The doctrine also exists in statutory form in virtually all jurisdictions, including the US.
The doctrine is NOT a judicially created doctrine. The APPLICATION of the law (either via treaty or statute) is a function of the judiciary. In common law jurisdictions, the resulting case opinion can be cited as president in other disputes as relevant and if applicable are controlling in any future dispute brought before subservient courts in the same judiciary branch (e.g. In the US, decisions of the US Supreme Court bind all federal courts but they bind State courts only as to matters of federal law - State supreme courts govern those state courts below them in authority with respect to state law matters). The same applies in virtually all, if not all, other countries. In noncommon law jurisdictions prior judicial decisions are informative only but not precedential.
I know you are not a lawyer and are trying to help. However, mis-stating the law is in reality not helpful and leads to a great deal of confusion which takes a good amount of effort to rectify.
As to Professor Swain, you are confusing two issues namely:
Impact when the IGO brings an action as the plaintiff (or claimant)
Impact when the IGO is merely a defendant.
In the former, the IGO is always deemed to have waived immunity. This is stated in Swain¹s memo.
In the latter, the IGO preserves issues of immunity because it did not initiate the process. It can be held to NOT have immunity based on the reason it has been brought into court.
In the UDRP context, the IGO initiated the process AND that process expressly contains a right to seek post UDRP litigation remedies. As concerns the Respondent, the right to post-UDRP litigation is an absolute right. As concerns the Complainant (the IGO), post-UDRP litigation remains an option.
The Policy clearly provides for the selection of a Mutual Jurisdiction that applies in the event of post-UDRP litigation BUT the selection is make ONLY by the Complainant. There is no provision by which the Respondent agrees to any jurisdiction for post-UDRP litigation.
Thus, because the Policy contains an express right for the Respondent to pursue post-UDRP litigation AND contains a MJ selection for that very purpose, it is the NGO who has waived immunity claims. Thus, the post-UDRP litigation is in effect a continuation of the prior UDRP an action brought by the NGO.
The issue is far different from that occurring if the domain owner merely initiated litigation to seek declaratory relief (a declaration that the domain name did not infringe). In such a case, it would be new litigation and not a continuation of process. The NGO thus retains any immunity defense it otherwise had.
In his memo, Swain (rather in-artfully) switches from one situation to another but does not clarify that the analysis changes depending on the situation. This leads to a confusion as to whether the issue of immunity remains applicable in the context of post-UDRP litigation.
I believe this is what is eating at Paul.
As to the transfer, I believe Paul is referring to the fact that the UDRP itself has resulted in a decision to transfer a property right from the Respondent to the NGO. The Respondent has the right to suspend the effect of the UDRP decision (transfer of the domain) by timely filing litigation in the MJ. The UDRP decision is then held in abeyance pending the outcome of the post-UDRP litigation. Thus, in effect a transfer of rights has occurred. It is just the carrying out of the actual transfer that has been deferred.
I think we can all agree that the Policy was never intended to allow for such post-UDRP litigation but then preclude any remedy to the Respondent because of immunity issues belatedly asserted by the UDRP complainant. Such would undercut the most basic of foundational elements of the policy that the rights to judicial review remain.
I hope this helps.
@Paul, please chip in if I have made an error above.
Paul
From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org> on behalf of Mary Wong <mary.wong@icann.org> Date: Wednesday, June 13, 2018 at 7:19 PM To: Paul Tattersfield <gpmgroup@gmail.com> Cc: "Donna.Austin@team.neustar" <Donna.Austin@team.neustar>, "haforrestesq@gmail.com" <haforrestesq@gmail.com>, "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] [Ext] Re: Question about Professor Swaine's memo
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 Swaine¹s 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 ³transfer² 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 ³transfer² 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 today¹s 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 Phillip¹s 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 WG¹s final report is premised on Professor Swaine¹s 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 es_viewpage.action-3FpageId-3D56131791&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbP SS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=EBKiNgHmqL68 bsFaEsNNKlLqZO_hrEY4p0DHiAv1NSw&s=ahWQUHMJaL9LDnMiir5n2aozXA9CcznLOgRXr0OmlM8 &e=> which is marked final and dated 6/17/2016.
From that document: ³3. Discussion (Bottom of page 8)
The core question is whether an IGO is ³entitled to immunity,² 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 IGO¹s immunity. Part C then discusses alternative ways to resolve the situation. ³
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 group¹s 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... /VeryseriousissueswithTheSwaineMemotheproposedFinalReport-0001.pdf <http://mm.icann.org/pipermail/gnso-igo-ingo-crp/attachments/20180514/4478858 9/VeryseriousissueswithTheSwaineMemotheproposedFinalReport-0001.pdf> ]
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 Swaine¹s 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 ³focuses 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 (³Policy² or ³UDRP²) proceedings against a domain-name registrantresulting in an order of cancellation or transfer to which the losing registrant objects by commencing a judicial action ³ (see Page 77 of the Working Group¹s Initial Report, at Annex G).
* He notes that ³how matters unfold from that point [following the registrant¹s filing suit] will depend on national law² (Page 81, Annex G) as to the question, ³whetherin light of an IGO¹s assent to Mutual Jurisdictionits 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 analysis² (Page 78, Annex G).
* Concluding that ³In 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 IGOand the risks that creates for adverse resultsis made by the private party² (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 Group¹s 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 Swaine¹s 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 rp-access-initial-19jan17-en.pdf [gnso.icann.org] <https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_sites_d efault_files_file_field-2Dfile-2Dattach_igo-2Dingo-2Dcrp-2Daccess-2Dinitial- 2D19jan17-2Den.pdf&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r= DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=EBKiNgHmqL68bsFaEsNNKlLqZO_hrE Y4p0DHiAv1NSw&s=Z4RHQ4HEv2BsNDE9-ScaJEfqb2_7E39gOxLYWD1KHnU&e=> .
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 <mailto:Donna.Austin@team.neustar> " <Donna.Austin@team.neustar <mailto: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:
³If it is judicial proceedings them [sic] of course an IGO's initiation of process indicates an implicit waiver of judicial immunity.²
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 group¹s charter.
Swaine is an analysis of cases where an IGO is entitled to jurisdictional immunity in judicial forums. Given you have just stated:
³If it is judicial proceedings them [sic] of course an IGO's initiation of process indicates an implicit waiver of judicial immunity.²
I fail to see how you can ever reconcile Swaine with ever being relevant to the working group¹s final report. I don¹t 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 Swaine¹s 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- 3D12061-2BBluemont-2BWay-2B-250D-250AReston-2C-2BVA-2B20190-26entry-3Dgmail -26source-3Dg&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69 mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=fHE_Cr9toYeLCsl-trxHT_K7CdrHZ4uAV Unv57xOoj8&s=CoaOz-PewsfP8inMwD1N5msXqqp7rInZbzZOhQAWtCc&e=> 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 <mailto: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 -3D12061-2BBluemont-2BWay-2B-250D-250AReston-2C-2BVA-2B20190-26entry-3Dgma il-26source-3Dg&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=D J69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=fHE_Cr9toYeLCsl-trxHT_K7CdrHZ 4uAVUnv57xOoj8&s=CoaOz-PewsfP8inMwD1N5msXqqp7rInZbzZOhQAWtCc&e=> 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_g roup-2Dactivities_inactive&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7 xcl4I5cM&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.ica nn.org] <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org _display_ITPIPDWG_Attendance-2BLog&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbP SS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=fHE_Cr9t oYeLCsl-trxHT_K7CdrHZ4uAVUnv57xOoj8&s=SM46RS2yu2NqlCCV6jC_TqeffNSm5NO7Hrg 2Z_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_g roup-2Dactivities_active_irtp-2Dd&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPS S6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=fHE_Cr9to YeLCsl-trxHT_K7CdrHZ4uAVUnv57xOoj8&s=j2Zvmixa4aRhzYenT-dnA022yco2l1JnPBIL d7c6P2A&e=>
Now, let's compare this to the IGO PDP and its attendance records:
https://community.icann.org/display/gnsoicrpmpdp/Attendance+Records[commu nity.icann.org] <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org _display_gnsoicrpmpdp_Attendance-2BRecords&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3m SVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m= fHE_Cr9toYeLCsl-trxHT_K7CdrHZ4uAVUnv57xOoj8&s=mwySLJqja9rtF5SFHTy4NbNmZuR g0TzTEP7xPbL3BMk&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/58 72= 9944/58730036/Charter%20for%20RPM%20PDP_final.pdf[community.icann.org] <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org _display_RARPMRIAGPWG_WG-2BCharter-3Fpreview-3D3D_5872-3D9944_58730036_Ch arter-2520for-2520RPM-2520PDP-5Ffinal.pdf&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mS VzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=f HE_Cr9toYeLCsl-trxHT_K7CdrHZ4uAVUnv57xOoj8&s=ps70jf_1KqUAI3uRTbpQJ4U149wb ZN0CHdG6lKySm40&e=>
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=DwMF aQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6 c2w3xl7xb5cjS_7sB4h6Y&m=fHE_Cr9toYeLCsl-trxHT_K7CdrHZ4uAVUnv57xOoj8&s=V1e Nh6UuyYEnssdELGy5BGrOMHYiXX7md_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 > <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 <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
Thank you Phil and Paul. Without overly belaboring the point but in the hope of adding clarification, staff would like to provide the following summary. The customary international law that developed around state (sovereign) immunity originated in various sources, primarily via judicial and state practice, and was eventually largely codified (most notably in the mid-20th century in the various Vienna Conventions and in the 2004 United Nations Convention on Jurisdictional Immunities of States and their property). In contrast, in the IGO context, while jurisdictional immunity has generally been viewed as developed through customary international law, one view (held by a number of national courts) is that immunity must be grounded in hard law, such as bilateral agreements dealing with an IGO’s privileges and immunities and entered into between the IGO’s constituent members, or the headquarters agreement concluded between the IGO and its host state. Although work had been undertaken by the International Legal Commission on a possible treaty to cover immunity of IGOs, this effort did not come to fruition and was terminated in 1992. International treaties that deal with jurisdictional immunity of IGOs are therefore currently limited to specific types of IGOs, e.g. the Convention on the Privileges and Immunities of the United Nations (1946), the Convention on the Privileges and Immunities of the Specialized Agencies (1948), and the General Agreement on Privileges and Immunities of the Council of Europe (1949). While there have been, and continue to be, national legislation in a number of states that deal with the issue of state and/or IGO immunity, these may vary in scope, and of course are applicable only to the courts of that state. The lack of a universal doctrine or treaty on IGO jurisdictional immunity, coupled with the variance in treatment by different national courts in relation to the existence, nature and scope of such immunity, was a major reason why Professor Swaine was retained. While I realize the language I used in my note below may not have been the most precise, it does not appear to be accurate either to characterize state and/or IGO immunity doctrines as originating or existing only in either treaties or national legislation. Thank you. Best regards, Mary From: Paul Keating <Paul@law.es> Date: Thursday, June 14, 2018 at 02:27 To: "Corwin, Philip" <pcorwin@verisign.com>, Mary Wong <mary.wong@icann.org>, "gpmgroup@gmail.com" <gpmgroup@gmail.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] [Ext] Re: Question about Professor Swaine's memo Well it seems I was incorrect on saying Mary was not an attorney. However, Mary – and no offense intended - you still got it completely wrong. Paul From: "Corwin, Philip" <pcorwin@verisign.com<mailto:pcorwin@verisign.com>> Date: Wednesday, June 13, 2018 at 8:17 PM To: Paul Keating <paul@law.es<mailto:paul@law.es>>, "mary.wong@icann.org<mailto:mary.wong@icann.org>" <mary.wong@icann.org<mailto:mary.wong@icann.org>>, "gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>" <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> Cc: "haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>" <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>>, "Donna.Austin@team.neustar<mailto:Donna.Austin@team.neustar>" <Donna.Austin@team.neustar<mailto: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] [Ext] Re: Question about Professor Swaine's memo FYI— https://www.icann.org/profiles/mary-wong [icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_profiles_...> Mary Wong joined ICANN as a Senior Policy Director in 2013. Mary is a member of the Policy Team performing global policy development work and her responsibilities encompass managerial, analytical and research related duties. She also supports the Generic Names Supporting Organization (GNSO) with legal and policy advice and research. Prior to joining ICANN, Mary was a tenured professor of law in the United States and she has also been associated with the technology transactions practice group of a major international law firm. She holds a Bachelor of Laws degree from the National University of Singapore and a Master of Laws degree from Cambridge University in the United Kingdom. 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: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of Paul Keating Sent: Wednesday, June 13, 2018 2:07 PM To: Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>>; Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> Cc: haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>; Donna.Austin@team.neustar<mailto:Donna.Austin@team.neustar>; 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] [Ext] Re: Question about Professor Swaine's memo Mary, With all respect, you are very very incorrect regarding the jurisprudence of sovereign immunity. The doctrine does exist in several treaties. Treaties in turn (by definition) constitute the supreme law of each jurisdiction having agreed to them. This is the case in the US just as in other jurisdictions. The doctrine also exists in statutory form in virtually all jurisdictions, including the US. The doctrine is NOT a judicially created doctrine. The APPLICATION of the law (either via treaty or statute) is a function of the judiciary. In common law jurisdictions, the resulting case opinion can be cited as president in other disputes as relevant and if applicable are controlling in any future dispute brought before subservient courts in the same judiciary branch (e.g. In the US, decisions of the US Supreme Court bind all federal courts but they bind State courts only as to matters of federal law - State supreme courts govern those state courts below them in authority with respect to state law matters). The same applies in virtually all, if not all, other countries. In non–common law jurisdictions prior judicial decisions are informative only but not precedential. I know you are not a lawyer and are trying to help. However, mis-stating the law is in reality not helpful and leads to a great deal of confusion which takes a good amount of effort to rectify. As to Professor Swain, you are confusing two issues namely: Impact when the IGO brings an action as the plaintiff (or claimant) Impact when the IGO is merely a defendant. In the former, the IGO is always deemed to have waived immunity. This is stated in Swain’s memo. In the latter, the IGO preserves issues of immunity because it did not initiate the process. It can be held to NOT have immunity based on the reason it has been brought into court. In the UDRP context, the IGO initiated the process AND that process expressly contains a right to seek post UDRP litigation remedies. As concerns the Respondent, the right to post-UDRP litigation is an absolute right. As concerns the Complainant (the IGO), post-UDRP litigation remains an option. The Policy clearly provides for the selection of a Mutual Jurisdiction that applies in the event of post-UDRP litigation BUT the selection is make ONLY by the Complainant. There is no provision by which the Respondent agrees to any jurisdiction for post-UDRP litigation. Thus, because the Policy contains an express right for the Respondent to pursue post-UDRP litigation AND contains a MJ selection for that very purpose, it is the NGO who has waived immunity claims. Thus, the post-UDRP litigation is in effect a continuation of the prior UDRP – an action brought by the NGO. The issue is far different from that occurring if the domain owner merely initiated litigation to seek declaratory relief (a declaration that the domain name did not infringe). In such a case, it would be new litigation and not a continuation of process. The NGO thus retains any immunity defense it otherwise had. In his memo, Swain (rather in-artfully) switches from one situation to another but does not clarify that the analysis changes depending on the situation. This leads to a confusion as to whether the issue of immunity remains applicable in the context of post-UDRP litigation. I believe this is what is eating at Paul. As to the transfer, I believe Paul is referring to the fact that the UDRP itself has resulted in a decision to transfer a property right from the Respondent to the NGO. The Respondent has the right to suspend the effect of the UDRP decision (transfer of the domain) by timely filing litigation in the MJ. The UDRP decision is then held in abeyance pending the outcome of the post-UDRP litigation. Thus, in effect a transfer of rights has occurred. It is just the carrying out of the actual transfer that has been deferred. I think we can all agree that the Policy was never intended to allow for such post-UDRP litigation but then preclude any remedy to the Respondent because of immunity issues belatedly asserted by the UDRP complainant. Such would undercut the most basic of foundational elements of the policy – that the rights to judicial review remain. I hope this helps. @Paul, please chip in if I have made an error above. Paul From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org<mailto:gnso-igo-ingo-crp-bounces@icann.org>> on behalf of Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> Date: Wednesday, June 13, 2018 at 7:19 PM To: Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> Cc: "Donna.Austin@team.neustar<mailto:Donna.Austin@team.neustar>" <Donna.Austin@team.neustar<mailto:Donna.Austin@team.neustar>>, "haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>" <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>>, "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] [Ext] Re: Question about Professor Swaine's memo 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<mailto:gpmgroup@gmail.com>> Date: Wednesday, June 13, 2018 at 06:57 To: Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> Cc: "Corwin, Philip" <pcorwin@verisign.com<mailto:pcorwin@verisign.com>>, "haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>" <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>>, "Donna.Austin@team.neustar<mailto:Donna.Austin@team.neustar>" <Donna.Austin@team.neustar<mailto: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: [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<mailto:Donna.Austin@team.neustar>" <Donna.Austin@team.neustar<mailto: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<mailto: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 _______________________________________________ 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
*@David* I was hoping Mary would at least extend the courtesy of commenting on your link however it seems no matter how this problem is pursued the working group gets slow-walked and this is totally unacceptable. *@Mary* I have tried to explain this problem as simply as possible so there is no way anyone who isn’t a law professor or a senior policy director at ICANN could plausibly claim they did not understand what Professor Swaine has done. I’ve even dumbed it down to colours so it is now on the record in glorious Technicolor.1 In every forum in the world we have a claimant (red) and a defendant (blue). Immunity is a blue shield it is ONLY a defence for a defendant (blue). There is no forum anywhere in the world where an IGO can initiate a claim (red) and use a blue immunity shield in either the initial round or any subsequent rounds because that’s not how things work, yet Swaine at the bottom of page 8 is asking his readers to believe that it is possible. - It isn’t! That is why his report is so completely flawed. Your only response to me is to cut and paste from the flawed document itself, in a circular attempt to self justify, when I point this out you slow-walk me again. David has drawn your attention to the United Nations Convention on Jurisdictional Immunities of States and Their Property treaty. Whilst it does not pertain specifically to IGOs (even though IGOs are creatures of states) it does usefully isolate how international law should deal with immunity. In particular see Part II General principles Articles 6 to 9. As one would expect it aligns with the norms one would find in domestic law. So please can you explain to the working group exactly why IGOs should be so rarefied that when initiating a claim (red) they would subsequently be awarded a blue immunity shield on the same principle matter? 2 With respect to Convention on the Privileges and Immunities of the Specialized Agencies you relied on in the absence of a parallel IGO immunities treaty, it gives the relevant IGOs juridical personality and it limits (jurisdictional) immunity to where an IGO has not initiated proceedings, (hint - I’ll help you here) should an IGO wish to initiate proceedings it has to waive jurisdictional immunity for the matter to be heard. Incidentally, while we are doing details Swaine was also wrong in his analysis of concessions and benefits because the mutual jurisdiction clause does not include a waiver of immunity from execution so this would be a benefit not a concession for many IGOs. However none of this matters other than to show that Swaine made other mistakes, because quite simply Swaine is completely irrelevant to what the working group has been asked to consider – No ifs no buts. *@Paul K*. Thank you for spending the time trying to explain my point to Mary that was very helpful. My use of “transferring” was simply in reference to Swaine’s flawed reasoning that any immunity rights an IGO may enjoy as a defendant to someone else initiating proceedings against them could not be simply “transferred/allocated/applied” to the situation the working group has been asked to consider, namely where it is the IGO itself that is initiating proceedings. *@Petter & Susan* The working group members have clearly spoken and the option #3 slight of hand has rightly been rejected it is now beholden on the staff and those leading this working group to align the final report with the working group members wishes. The only member to voice any support for retaining Swaine is Phillip and that is simply so he can avoid humiliation and possibly reference it in his minority report. We need a report that robustly supports the working group’s conclusions not one that is side-tracked with wholly irrelevant matters (blue) when the working group is ONLY considering (red) matters. *@Goran* We have been slow-walked and deferred and had objections every step of the way and this is totally unacceptable. This problems ICANN is experiencing are not only restricted to our working group and its narrow policy area. ICANN is supposed to be there to support an environment where the Internet can continue to grow and thrive and its current approach calls into question the whole multistakeholder approach to Internet Governance. This is serious, very serious. 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 Wed, Jun 13, 2018 at 8:21 PM, Mary Wong <mary.wong@icann.org> wrote:
Thank you Phil and Paul.
Without overly belaboring the point but in the hope of adding clarification, staff would like to provide the following summary.
The customary international law that developed around state (sovereign) immunity originated in various sources, primarily via judicial and state practice, and was eventually largely codified (most notably in the mid-20 th century in the various Vienna Conventions and in the 2004 United Nations Convention on Jurisdictional Immunities of States and their property). In contrast, in the IGO context, while jurisdictional immunity has generally been viewed as developed through customary international law, one view (held by a number of national courts) is that immunity must be grounded in hard law, such as bilateral agreements dealing with an IGO’s privileges and immunities and entered into between the IGO’s constituent members, or the headquarters agreement concluded between the IGO and its host state. Although work had been undertaken by the International Legal Commission on a possible treaty to cover immunity of IGOs, this effort did not come to fruition and was terminated in 1992. International treaties that deal with jurisdictional immunity of IGOs are therefore currently limited to specific types of IGOs, e.g. the Convention on the Privileges and Immunities of the United Nations (1946), the Convention on the Privileges and Immunities of the Specialized Agencies (1948), and the General Agreement on Privileges and Immunities of the Council of Europe (1949). While there have been, and continue to be, national legislation in a number of states that deal with the issue of state and/or IGO immunity, these may vary in scope, and of course are applicable only to the courts of that state.
The lack of a universal doctrine or treaty on IGO jurisdictional immunity, coupled with the variance in treatment by different national courts in relation to the existence, nature and scope of such immunity, was a major reason why Professor Swaine was retained.
While I realize the language I used in my note below may not have been the most precise, it does not appear to be accurate either to characterize state and/or IGO immunity doctrines as originating or existing only in either treaties or national legislation.
Thank you.
Best regards,
Mary
*From: *Paul Keating <Paul@law.es> *Date: *Thursday, June 14, 2018 at 02:27 *To: *"Corwin, Philip" <pcorwin@verisign.com>, Mary Wong < mary.wong@icann.org>, "gpmgroup@gmail.com" <gpmgroup@gmail.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] [Ext] Re: Question about Professor Swaine's memo
Well it seems I was incorrect on saying Mary was not an attorney.
However, Mary – and no offense intended - you still got it completely wrong.
Paul
*From: *"Corwin, Philip" <pcorwin@verisign.com> *Date: *Wednesday, June 13, 2018 at 8:17 PM *To: *Paul Keating <paul@law.es>, "mary.wong@icann.org" < mary.wong@icann.org>, "gpmgroup@gmail.com" <gpmgroup@gmail.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] [Ext] Re: Question about Professor Swaine's memo
FYI—
https://www.icann.org/profiles/mary-wong [icann.org] <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_profiles_...>
Mary Wong joined ICANN as a Senior Policy Director in 2013. Mary is a member of the Policy Team performing global policy development work and her responsibilities encompass managerial, analytical and research related duties. She also supports the Generic Names Supporting Organization (GNSO) with legal and policy advice and research. *Prior to joining ICANN, Mary was a tenured professor of law in the United States and she has also been associated with the technology transactions practice group of a major international law firm. She holds a Bachelor of Laws degree from the National University of Singapore and a Master of Laws degree from Cambridge University in the United Kingdom.*
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 <gnso-igo-ingo-crp-bounces@icann.org>] *On Behalf Of *Paul Keating *Sent:* Wednesday, June 13, 2018 2:07 PM *To:* Mary Wong <mary.wong@icann.org>; Paul Tattersfield < gpmgroup@gmail.com> *Cc:* haforrestesq@gmail.com; Donna.Austin@team.neustar; gnso-igo-ingo-crp@icann.org; rafik.dammak@gmail.com *Subject:* [EXTERNAL] Re: [Gnso-igo-ingo-crp] [Ext] Re: Question about Professor Swaine's memo
Mary,
With all respect, you are very very incorrect regarding the jurisprudence of sovereign immunity.
The doctrine does exist in several treaties. Treaties in turn (by definition) constitute the supreme law of each jurisdiction having agreed to them. This is the case in the US just as in other jurisdictions.
The doctrine also exists in statutory form in virtually all jurisdictions, including the US.
The doctrine is NOT a judicially created doctrine. The APPLICATION of the law (either via treaty or statute) is a function of the judiciary. In common law jurisdictions, the resulting case opinion can be cited as president in other disputes as relevant and if applicable are controlling in any future dispute brought before subservient courts in the same judiciary branch (e.g. In the US, decisions of the US Supreme Court bind all federal courts but they bind State courts only as to matters of federal law - State supreme courts govern those state courts below them in authority with respect to state law matters). The same applies in virtually all, if not all, other countries. In non–common law jurisdictions prior judicial decisions are informative only but not precedential.
I know you are not a lawyer and are trying to help. However, mis-stating the law is in reality not helpful and leads to a great deal of confusion which takes a good amount of effort to rectify.
As to Professor Swain, you are confusing two issues namely:
Impact when the IGO brings an action as the plaintiff (or claimant)
Impact when the IGO is merely a defendant.
In the former, the IGO is always deemed to have waived immunity. This is stated in Swain’s memo.
In the latter, the IGO preserves issues of immunity because it did not initiate the process. It can be held to NOT have immunity based on the reason it has been brought into court.
In the UDRP context, the IGO initiated the process AND that process expressly contains a right to seek post UDRP litigation remedies. As concerns the Respondent, the right to post-UDRP litigation is an absolute right. As concerns the Complainant (the IGO), post-UDRP litigation remains an option.
The Policy clearly provides for the selection of a Mutual Jurisdiction that applies in the event of post-UDRP litigation BUT the selection is make ONLY by the Complainant. There is no provision by which the Respondent agrees to any jurisdiction for post-UDRP litigation.
Thus, because the Policy contains an express right for the Respondent to pursue post-UDRP litigation AND contains a MJ selection for that very purpose, it is the NGO who has waived immunity claims. Thus, the post-UDRP litigation is in effect a continuation of the prior UDRP – an action brought by the NGO.
The issue is far different from that occurring if the domain owner merely initiated litigation to seek declaratory relief (a declaration that the domain name did not infringe). In such a case, it would be new litigation and not a continuation of process. The NGO thus retains any immunity defense it otherwise had.
In his memo, Swain (rather in-artfully) switches from one situation to another but does not clarify that the analysis changes depending on the situation. This leads to a confusion as to whether the issue of immunity remains applicable in the context of post-UDRP litigation.
I believe this is what is eating at Paul.
As to the transfer, I believe Paul is referring to the fact that the UDRP itself has resulted in a decision to transfer a property right from the Respondent to the NGO. The Respondent has the right to suspend the effect of the UDRP decision (transfer of the domain) by timely filing litigation in the MJ. The UDRP decision is then held in abeyance pending the outcome of the post-UDRP litigation. Thus, in effect a transfer of rights has occurred. It is just the carrying out of the actual transfer that has been deferred.
I think we can all agree that the Policy was never intended to allow for such post-UDRP litigation but then preclude any remedy to the Respondent because of immunity issues belatedly asserted by the UDRP complainant. Such would undercut the most basic of foundational elements of the policy – that the rights to judicial review remain.
I hope this helps.
@Paul, please chip in if I have made an error above.
Paul
*From: *Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org> on behalf of Mary Wong <mary.wong@icann.org> *Date: *Wednesday, June 13, 2018 at 7:19 PM *To: *Paul Tattersfield <gpmgroup@gmail.com> *Cc: *"Donna.Austin@team.neustar" <Donna.Austin@team.neustar>, " haforrestesq@gmail.com" <haforrestesq@gmail.com>, " 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] [Ext] Re: Question about Professor Swaine's memo
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/ 20180514/44788589/VeryseriousissueswithTheSwaine MemotheproposedFinalReport-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/ default/files/file/field-file-attach/igo-ingo-crp-access-initial-19jan17-en.pdf [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> 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
_______________________________________________ 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
_______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/ listinfo/gnso-igo-ingo-crp
Hi folks, On Wed, Jun 13, 2018 at 2:26 PM, Paul Keating <Paul@law.es> wrote:
Well it seems I was incorrect on saying Mary was not an attorney.
However, Mary – and no offense intended - you still got it completely wrong.
I hope this isn't perceived as an "attack", (it's just fact-seeking) but I've actually not seen the proof or direct statement that Mary is or isn't an "attorney". e.g. lots of people go to law school, but don't get licensed as a lawyer, pass the bar exam, (or don't keep up with the various regulatory requirements to continue being a licensed attorney). It's an offense to hold oneself out as an attorney in some places, when one isn't. Even if she is an attorney, it's clear lawyers or legal scholars can and do get it wrong, and can be on the losing side. In any court case where both sides are making arguments, obviously one lawyer out of two loses. Go watch CNN or FOX and you can see "legal analysis" of the latest events (pick any controversial topic you'd like), where you can and do get very disparate views from their legal guests/experts. Someone once told me "50% of law school graduates finished in the bottom half of their class"! :-) [a statistical truth!] (same goes for any other field of study) As for the Swaine report, I had raised questions about it back when we first got it, but he didn't seem to take the point into consideration (and it's the same point that Paul T is raising). https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2016-May/date.html https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2016-May/000518.html "1. Page 8 appears very confused. (both the paragraph above "Discussion", and the paragraph after it). The base scenario, in the absence of the UDRP, is that the IGO would file a complaint in court, thereby explicitly waiving any immunity, as they brought the action. The "imagined scenario" used in the paper is not helpful at all, because "legitimate expectations" absent the UDRP for an IGO are vary. "Immunity" is only a defense to an action, so of course the IGO will have "legitimate expectations" in defending a lawsuit that it did not initiate. However, "legitimate expectations" when an IGO *initiates* a dispute are quite different! The legitimate expectations are that if it initiates a court case, then it waives immunity. So, I believe the professor needs to go back and look at that, because the statement "imagining that scenario usefully isolates the question as to whether an IGO has a legitimate expectation that it would be entitled to immunity *absent* the UDRP and its concessions" is simply wrong, because of that asymmetry (between initiating vs defending a dispute). Thus, one can't *isolate* the question by focusing on one, because the answers are different due to that asymmetry. Indeed, if one reads on, this has important bearings on the paper. "If such immunity is minimal or uncertain, then any compromises required by the UDRP loom less large." Absent the UDRP, immunity is *non-existent* for the IGO that initiates a dispute in court. Thus, "any compromises required by the UDRP" in reality do "loom less large." This goes to the heart of everything (i.e. argues for the maintenance of the status quo). Indeed, if one jumps to page 23, the professor writes: "Beyond tolerating an infringement of its interests, an IGO might in principle elect instead to proceed first (or solely) to court. This is undoubtedly unappealing, because it would accomplish waiver by other means. Even so, that would be the alternative were the UDRP not to exist in its present form; it is not as though a preexisting or independent privilege were being conditioned or withdrawn. IGOs might also take some consolation from the advantages afforded them by the UDRP, which—but for cases in which judicial review is later sought by a losing registrant—affords them an efficient recourse to which they are not otherwise entitled." which again reinforces my position (i.e. that the legitimate expectation absent the UDRP is that the IGO *would* waive immunity when filing a complaint in court). So, combining pages 8 and 23, there's really only one valid conclusion, namely that "any compromises required by the UDRP" in reality do "loom less large." Anyhow, all this becomes moot eventually, as Option 1 of Recommendation 5 takes care of everything, and puts the parties back to the same positions they'd have been had the UDRP/URS not been initiated. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/
Just to stir the pot: "United Nations Convention on Jurisdictional Immunities of States and Their Property The States Parties to the present Convention, Considering that the jurisdictional immunities of States and their property are generally accepted as a principle of customary international law, . . ." https://treaties.un.org/doc/source/RecentTexts/English_3_13.pdf David W. Maher Public Interest Registry Senior Vice-President - Law & Policy +1 312 375 4849 From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org> On Behalf Of Paul Keating Sent: Wednesday, June 13, 2018 1:07 PM To: Mary Wong <mary.wong@icann.org>; Paul Tattersfield <gpmgroup@gmail.com> Cc: haforrestesq@gmail.com; Donna.Austin@team.neustar; gnso-igo-ingo-crp@icann.org; Rafik Dammak <Rafik.dammak@gmail.com> Subject: Re: [Gnso-igo-ingo-crp] [Ext] Re: Question about Professor Swaine's memo Mary, With all respect, you are very very incorrect regarding the jurisprudence of sovereign immunity. The doctrine does exist in several treaties. Treaties in turn (by definition) constitute the supreme law of each jurisdiction having agreed to them. This is the case in the US just as in other jurisdictions. The doctrine also exists in statutory form in virtually all jurisdictions, including the US. The doctrine is NOT a judicially created doctrine. The APPLICATION of the law (either via treaty or statute) is a function of the judiciary. In common law jurisdictions, the resulting case opinion can be cited as president in other disputes as relevant and if applicable are controlling in any future dispute brought before subservient courts in the same judiciary branch (e.g. In the US, decisions of the US Supreme Court bind all federal courts but they bind State courts only as to matters of federal law - State supreme courts govern those state courts below them in authority with respect to state law matters). The same applies in virtually all, if not all, other countries. In non-common law jurisdictions prior judicial decisions are informative only but not precedential. I know you are not a lawyer and are trying to help. However, mis-stating the law is in reality not helpful and leads to a great deal of confusion which takes a good amount of effort to rectify. As to Professor Swain, you are confusing two issues namely: Impact when the IGO brings an action as the plaintiff (or claimant) Impact when the IGO is merely a defendant. In the former, the IGO is always deemed to have waived immunity. This is stated in Swain's memo. In the latter, the IGO preserves issues of immunity because it did not initiate the process. It can be held to NOT have immunity based on the reason it has been brought into court. In the UDRP context, the IGO initiated the process AND that process expressly contains a right to seek post UDRP litigation remedies. As concerns the Respondent, the right to post-UDRP litigation is an absolute right. As concerns the Complainant (the IGO), post-UDRP litigation remains an option. The Policy clearly provides for the selection of a Mutual Jurisdiction that applies in the event of post-UDRP litigation BUT the selection is make ONLY by the Complainant. There is no provision by which the Respondent agrees to any jurisdiction for post-UDRP litigation. Thus, because the Policy contains an express right for the Respondent to pursue post-UDRP litigation AND contains a MJ selection for that very purpose, it is the NGO who has waived immunity claims. Thus, the post-UDRP litigation is in effect a continuation of the prior UDRP - an action brought by the NGO. The issue is far different from that occurring if the domain owner merely initiated litigation to seek declaratory relief (a declaration that the domain name did not infringe). In such a case, it would be new litigation and not a continuation of process. The NGO thus retains any immunity defense it otherwise had. In his memo, Swain (rather in-artfully) switches from one situation to another but does not clarify that the analysis changes depending on the situation. This leads to a confusion as to whether the issue of immunity remains applicable in the context of post-UDRP litigation. I believe this is what is eating at Paul. As to the transfer, I believe Paul is referring to the fact that the UDRP itself has resulted in a decision to transfer a property right from the Respondent to the NGO. The Respondent has the right to suspend the effect of the UDRP decision (transfer of the domain) by timely filing litigation in the MJ. The UDRP decision is then held in abeyance pending the outcome of the post-UDRP litigation. Thus, in effect a transfer of rights has occurred. It is just the carrying out of the actual transfer that has been deferred. I think we can all agree that the Policy was never intended to allow for such post-UDRP litigation but then preclude any remedy to the Respondent because of immunity issues belatedly asserted by the UDRP complainant. Such would undercut the most basic of foundational elements of the policy - that the rights to judicial review remain. I hope this helps. @Paul, please chip in if I have made an error above. Paul From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org<mailto:gnso-igo-ingo-crp-bounces@icann.org>> on behalf of Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> Date: Wednesday, June 13, 2018 at 7:19 PM To: Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> Cc: "Donna.Austin@team.neustar<mailto:Donna.Austin@team.neustar>" <Donna.Austin@team.neustar<mailto:Donna.Austin@team.neustar>>, "haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>" <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>>, "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] [Ext] Re: Question about Professor Swaine's memo 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<mailto:gpmgroup@gmail.com>> Date: Wednesday, June 13, 2018 at 06:57 To: Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> Cc: "Corwin, Philip" <pcorwin@verisign.com<mailto:pcorwin@verisign.com>>, "haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>" <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>>, "Donna.Austin@team.neustar<mailto:Donna.Austin@team.neustar>" <Donna.Austin@team.neustar<mailto: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: [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<mailto:Donna.Austin@team.neustar>" <Donna.Austin@team.neustar<mailto: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<mailto: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 _______________________________________________ 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
participants (6)
-
Corwin, Philip -
David W. Maher -
George Kirikos -
Mary Wong -
Paul Keating -
Paul Tattersfield