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IFC Comments to GNSO

  • To: "comments-igo-ingo-crp-access-initial-20jan17@xxxxxxxxx" <comments-igo-ingo-crp-access-initial-20jan17@xxxxxxxxx>
  • Subject: IFC Comments to GNSO
  • From: "Gordon I. Myers" <gmyers@xxxxxxx>
  • Date: Thu, 30 Mar 2017 21:36:38 +0000

International Finance Corporation submits the following comments.  A copy is 
also attached in .pdf format.

Dear GNSO Policy Development Process Working Group -

March 30, 2017

Re:  Comments of IFC on the Initial Report on the IGO/INGO Access to Curative 
Rights Protections Mechanism Policy Development Process (the "Initial Report")

Ladies and Gentlemen:

Thank you for the opportunity to comment on the Initial Report.  Capitalized 
terms not otherwise defined herein have the meanings given them in the Initial 

International Finance Corporation ("IFC") is an international financial 
institution established by Articles of Agreement among its 184 member 
countries, including the United States of America, and a member of the World 
Bank Group.   IFC's purpose is to further economic development by encouraging 
the growth of productive private enterprise in member countries, particularly 
in the less developed areas.  We are the largest global development institution 
focusing exclusively on the private sector in developing countries.

IFC associates itself fully with the comments submitted by the International 
Bank for Reconstruction and Development (the "World Bank"), and supports the 
comments made by other IGOs, including the Organisation for Economic 
Co-Operation and Development.  As the Initial Report suggests, IFC relies on 
its Article 6ter protections, and maintains national trademark registrations 
and related domain names, both for its organizational name and acronym, and for 
key initiatives it undertakes to achieve important developmental outcomes.  
These registrations and activities are essential to achieving our developmental 
mandate.  Accordingly, we agree the premise that the UDRP/URS should provide a 
fast, low-cost alternative procedure for clear-cut cases of cybersquatting that 
fully preserves the rights of all parties.  We do not however believe the 
Recommendations support or achieve these aims.

In particular, we emphasize our continuing concern regarding Recommendation #4. 
 First, Professor Swaine's analysis, while valuable, does not fully reflect and 
is not fully consistent with our immunities analysis.   Accordingly, we are not 
bound by its analysis or conclusions.  In particular, we note that IFC enjoys 
other privileges and immunities, including archival and staff member 
immunities, and considers none of these waived by any submission to judicial 
process or otherwise.  These immunities are accorded to IFC by implementing 
legislation, such as the International Organizations Immunities Act, the IFC 
Act, and similar legislation in other jurisdictions, as well as our Articles of 
Agreement and principles of international law.

Second, we note (without waiver or agreement) Professor Swaine's counsel that 
"granting Mutual Jurisdiction - via initiation of a complaint, or, for that 
matter, registration - would likely be understood as a waiver of any immunity 
the IGO might otherwise assert".  The WG's assertion that its proposed outcome 
"respects and preserves an IGO's assertion of jurisdictional immunity", or 
indeed any immunity, is therefore incorrect on the WG's own terms.  The WG is 
proposing rather that IGOs would participate in a curative mechanism that per 
the legal expert it engaged requires an ex ante waiver of IGO privileges and 
immunities, of unclear scope and impact, both as to that mechanism and any 
future action in national courts.

Finally, we note that whatever the substantive concerns, by declining to 
consider the accommodations supported by the Small IGO Group, the GAC, or 
apparently, the ICANN Board, the WG is recommending an approach that impedes 
rapid or efficient resolution of domain name disputes by registrants.  To the 
contrary, it is effectively proposing that where IGOs are complainants, they 
pursue actions outside ICANN mechanisms, at considerable burden to both IGOs 
and registrants, in order to preserve legal rights well established and 
recognized under international and national laws.  By overriding Professor 
Swaine's analysis, the WG is also incentivizing non-IGO complainants to pursue 
frivolous claims against IGOs within the UDRP/URS mechanism, with a view to 
arriving in national courts asserting arguments inconsistent with the principle 
of preservation of rights, and pursuing additional and perhaps unrelated claims 
in that context.

Regarding the GNSO's suggestion that an IGO could sidestep any immunity issue 
by simply filing through an assignee, licensee or agent, we fully adopt the 
World Bank's views on this recommendation.  At best, this is an untested 
approach that poses unacceptable risk to our immunities and would involve all 
parties in burdensome court proceedings to determine ancillary issues.  Surely 
commercial arbitration in an established forum, commonplace in the private 
sector and acceptable to IGOs, makes more sense than this approach.

To conclude, IFC is committed to a fair and efficient curative mechanism.  We 
believe the WG has arrived at Recommendations that do not achieve its stated 
aims, and in practical effect infringe the established roles and rights of IGOs 
in the international system.  Accordingly, we join the World Bank in requesting 
the WG to reconsider its draft advice.  We are happy to offer any help or 
cooperation you might reasonably request in this regard.

Thank you for your consideration.

Very truly yours,
Gordon Myers

Attachment: IFC Comments to GNSO.docx
Description: IFC Comments to GNSO.docx

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