IFC Comments to GNSO
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
Report.
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 |