ICANN ICANN Email List Archives


<<< Chronological Index >>>    <<< Thread Index >>>

Comments by the United Nations on the Initial Report on the IGO-INGO Access to Curative Rights Protection Mechanisms Policy Development Process

  • To: comments-igo-ingo-crp-access-initial-20jan17@xxxxxxxxx
  • Subject: Comments by the United Nations on the Initial Report on the IGO-INGO Access to Curative Rights Protection Mechanisms Policy Development Process
  • From: Noam Wiener <wiener@xxxxxx>
  • Date: Wed, 1 Mar 2017 10:59:14 -0500

<font size=2 face="sans-serif"><b><u>Comments from the United 
<p><font size=2 face="sans-serif">The United Nations is pleased share its
comments on the Initial Preliminary Report on the IGO-INGO Access to Curative
Rights Protection Mechanism Policy Development Process. &nbsp;</font>
<p><font size=2 face="sans-serif">The United Nations expresses full support
for the comprehensive comments provided by the OECD. In doing so, the United
Nations would like to elaborate on two matters: (a) the status of <br>
inter-governmental organizations (IGOs) vis-à-vis the Mutual Jurisdiction
Clauses of the UDRP and the URS, which requires those organizations to
waive their immunities in advance and to agree to appear before the national
courts of the Member States, and (b) arbitration as a familiar and commonly
used dispute resolution mechanism.</font>
<p><font size=2 face="sans-serif"><b><u>The Mutual Jurisdiction 
<p><font size=2 face="sans-serif">In its Recommendation #4, the Working
Group suggests that no change be made to the Mutual Jurisdiction Clause
of the UDRP (paragraph 4(k)) and URS (Article 13). The Working Group suggests
that the agreement in the Mutual Jurisdiction Clause to refer a dispute
to a national court at any stage of the proceeding should remain in place
and that IGOs may nonetheless claim jurisdictional immunity if and when
a dispute should come before a national court, notwithstanding that they
would have already agreed to submit to the jurisdiction of national courts.
The Working Groups posited that the specific national court could then
determine whether the IGO indeed has immunity under the applicable laws
of that jurisdiction. This recommendation fails to address both the status
of IGOs as organizations of sovereign member states and the basic premise
of forum selection clauses such as the Mutual Jurisdiction Clause in the
UDRP and URS. </font>
<p><font size=2 face="sans-serif"><u>The status of IGOs</u> &#8211; By the terms
of the treaties establishing them, the United Nations and other international
inter-governmental organizations have, in the territories of their Member
States, such privileges and immunities as are necessary for the fulfilment
of their functions. Because the Member States act as a collective when
determining the functions and activities of the United Nations and other
IGOs and collectively bear the liabilities of such IGOs, individual Member
States cannot, through their judicial, administrative or legislative processes
interfere with the independent functions and activities of IGOs or individually
impose liabilities on them </font>
<p><font size=2 face="sans-serif">The IGOs cannot, therefore, waive their
immunities from national jurisdictions by agreement in advance, as is required
by the UDRP and URS. This does not mean that IGOs are above the law. The
treaties that establish IGOs effectively require IGOs to resolve contractual
or other legal disputes through appropriate non-Member State dispute-resolution
means such as arbitration. </font>
<p><font size=2 face="sans-serif"><u>Forum Selection Clauses</u> &#8211; Forum
selection clauses provide an expression of consent by the participating
parties to submit to a given jurisdiction. The Mutual Jurisdiction Clause
of the UDRP and URS does this exactly. The Mutual Jurisdiction Clause provides
that the parties agree in advance that national courts shall be competent
to hear and rule on disputes that have been brought to the UDRP and URS.
Thus, leaving the jurisdictional clause of the UDRP and URS in place would
require an IGO to have already agreed to appear before a court of national
jurisdiction and, therefore, to have agreed in advance to waive its immunities.
Should the IGO subsequently assert its immunity, the IGO could be perceived
as reneging on that agreement. </font>
<p><font size=2 face="sans-serif">For example, the Supreme Court of the
United States has explained that the purpose of forum selection clauses
is to prevent &#8220;sparring litigants&#8221; from having to waste time and 
on determining whether a given venue is the correct forum for litigating
their disputes (Carnival Cruise Lines, Inc. v. Shute 499 U.S. 585, 594
(1991). In other words, once an IGO has waived its immunity and agreed
to the Mutual Jurisdiction Clause, the forum selection clause of the UDRP
and URS, a court of national jurisdiction may very well consider the IGO&#8217;s
motion to reassert its immunity to be an undue and wasteful imposition
on the court&#8217;s time. In the United States, a finding of this type by a
national court would be consonant with the jurisprudence of the Supreme
Court. </font>
<p><font size=2 face="sans-serif"><b><u>Arbitration as a common method
for dispute resolution</u></b></font>
<p><font size=2 face="sans-serif">The Working Group suggested that arbitration
may not be a proper alternative to national courts as a means to appeal
an UDRP or URS finding because the arbitration mechanism is not familiar
to registrants. We respectfully disagree. </font>
<p><font size=2 face="sans-serif">Arbitration is a common method for dispute
resolution and especially popular between entities that come from different
national jurisdictions, since the awards are valid in any country, regardless
of where the decision was made. &nbsp; Indeed, the UDRP itself mentions
arbitration multiple times as a recognized dispute resolution method. &nbsp;
&#8220;Godaddy&#8221;, which styles itself as the world&#8217;s largest domain 
name registrar,
requires domain name registrants to abide by binding arbitration in Article
25 of its Universal Terms of Service (Last revised on 25 January 2017,
available at </font><a 
href="https://www.godaddy.com/legal-agreements.aspx";><font size=2 color=blue 
size=2 face="sans-serif">).
&nbsp;Arbitration also features as a common form of dispute resolution
in the End User License Agreements of major software providers. Thus, it
seems unlikely that the relevant stakeholders, who are at the cutting end
of information technology, would be unfamiliar with the process of arbitration.
<p><font size=2 face="sans-serif">As noted, IGO treaties effectively provide
that arbitration is the appropriate means to resolve legal disputes to
which IGOs are party.</font>
<p><font size=2 face="sans-serif"><b><u>Conclusion</u></b></font>
<p><font size=2 face="sans-serif">As the United Nations has noted on multiple
occasions, a simple means of allowing IGOs to benefit from the UDRP and
URS processes is to eliminate for them the obligation, set forth in the
Mutual Jurisdiction Clauses of the UDRP and URS, to waive their immunity
from national jurisdictions in advance. </font>
<p><font size=2 face="sans-serif">In light the reasons enumerated by the
OECD, and of the further elaboration offered above by the United Nations,
we urge all relevant parties to adopt an effective mechanism that will
protect the public and prevent the misleading use of the names and acronyms
of inter-Governmental organizations in the DNS.</font>

<<< Chronological Index >>>    <<< Thread Index >>>

Privacy Policy | Terms of Service | Cookies Policy