EPDP for Specific Curative Rights Protections for IGOs
|EPDP for Specific Curative Rights Protections for IGOs|
|Issue Areas:||Intellectual Property|
The EPDP for Specific Curative Rights Protections for IGOs was created as part of the IGO work track of the PDP Review of All Rights Protection Mechanisms in All gTLDs (PDP-RPM). The review of rights protection mechanisms included a recommendation that raised an "admittedly rare" issue specific to international governmental organizations, where:
(i) an IGO has prevailed in a Uniform Domain Name Dispute Resolution Policy (UDRP) or Uniform Rapid Suspension (URS) proceeding; and
(ii) the losing registrant files suit in a court of competent jurisdiction; and
(iii) the IGO successfully claims immunity from the jurisdiction of that court; then
(iv) the original UDRP or URS panel decision is to be set aside.
Under the UDRP and URS, petitioners are required to submit to the jurisdiction of a court at "either (a) the principal office of the registrar...or (b) the domain name registrant's address as shown for the registration of the domain name." Because IGOs may typically claim immunity from the jurisdiction of any national court, there exists the possibility that an IGO would do so in the event a suit is filed to contest the outcome of a UDRP or URS proceeding. However, claiming immunity in this way effectively voids the underlying ruling, as the IGO is no longer agreeing to submit to the jurisdiction of the court in question. The EPDP charter addresses this issue, and builds on the original charter addendum for an IGO work track from PDP-RPM.
The EPDP Team on Specific Curative Rights Protections for IGO sought input on preliminary recommendations in the Initial Report that had not yet reached agreement about whether an appropriate policy solution could be developed that:
- accounts for the possibility that an IGO may enjoy jurisdictional immunity in certain circumstances;
- does not affect the right and ability of registrants to file judicial proceedings in a court of competent jurisdiction;
- preserves registrants' rights to judicial review of an initial Uniform Domain Name Dispute Resolution Policy or Uniform Rapid Suspension decision; and
- recognizes that the existence and scope of IGO jurisdictional immunity in any particular situation is a legal issue to be determined by a court of competent jurisdiction.
All 14 individual commentators opposed the development of policy recommendations that would apply specifically to IGOs and domain name disputes when the IGO files a complaint against a domain name registrant. Many worried that the recommendations would harm or reduce registrant rights if they restricted a registrant’s ability to file judicial proceedings against an IGO or compel a registrant to agree to arbitration.
IGOS welcomed the team's efforts to clarify IGOs' ability to file a dispute and IGO jurisdictional immunity. However, they were concerned that arbitration would not be recognized as a globally accepted means of resolving disputes. They supported the elimination of the need for IGOs to agree to submit to Mutual Jurisdiction when filing a complaint and arbitration as a default option following a UDRP or URS proceeding.<ref>Public Comment Summary Report on Initial Report from the EPDP on Specific Curative Rights Protections for IGOs, pg 3, ICANN Files
Domainers opposed the recommendations, especially the elimination of the Mutual Jurisdiction requirement.