Could The WIPO General Assembly Reject Francis Gurry’s Nomination?Published on 7 May 2014 @ 4:56 pm
By William New, Intellectual Property Watch
Tomorrow, World Intellectual Property Organization members decide whether to re-elect Francis Gurry as director general for another six years. The decision was complicated in recent weeks by detailed allegations of wrongdoing by Gurry put forward by Gurry’s deputy, raising questions about member states’ responsibility in investigating such claims.
Gurry’s nomination, which won a significant majority of the WIPO Coordination Committee in March (IPW, WIPO, 6 March 2014), the member state executive body, now goes before the full membership on 8 and 9 May.
Gurry, a reputed intellectual property scholar and WIPO veteran, has overseen a tough transition at WIPO from the high tensions under his predecessor, who stepped down one year early under pressure.
Report of Misconduct
But since the Coordination Committee decision, serious allegations against Gurry were made by WIPO Deputy Director General James Pooley. Pooley issued a “Report of Misconduct” to the chairs of General Assemblies and Coordination Committee. It is not clear what the next step is, if any.
The General Assembly chair is Päivi Kairamo, Permanent Representative of Finland to the United Nations in Geneva. The vice-chairs are Mikhail Khvostov, Ambassador of Belarus, and Mokhtar Warida from the Egyptian mission. Kairamo was recently seen in discussions with Gurry at WIPO.
The Coordination Committee chair is Senegal Ambassador Fodé Seck. The vice-chairs are Hungary Counsellor/Deputy Permanent Representative Virág Krisztina Halgand and Alexandra Grazioli of Switzerland.
The report refers to a matter that arose before Gurry’s first term, involving potentially defamatory letters sent to him, and DNA tests conducted on some employees (including some without their knowledge) as part of the investigation that ensued. It details alleged favours, intimidation and other “irregularities.”
WIPO and Gurry himself have been very forthright with threats to sue anyone who publishes the report of misconduct, the letters, or the details of the matter.
Asked by Intellectual Property Watch if WIPO had a response to Pooley’s claims, the press office replied: “the Director General has previously said that these allegations are without foundation and he has no further comment.”
The Pooley report also contains a previously unreported assertion relating to a procurement by an Australian company. [NOTE: This reference was removed under threat of lawsuit by the company.]
Gurry is also Australian. The report also discusses a dispute filed at the UN International Labour Organization arbitration tribunal by former Gurry strategic advisor Miranda Brown, who left after a short period on Gurry’s team and called for an investigation.
The report of misconduct and the lengthy attachments were posted to the US patent blog IPWatchdog by US patent lawyer Gene Quinn, but he later took it down along with his blog post after threat of a lawsuit by the WIPO legal counsel. The WIPO takedown letter remains on the site.
This takedown led to a post criticising WIPO by the editor of Intellectual Assets Magazine, Joff Wild.
“As a journalist I find this utterly outrageous,” Wild said. “I hope that other people do too. Quinn was not threatened with legal action for any allegations that he made, or for the slant on the story that he wrote around Pooley’s report and exhibits. Instead, he was threatened with legal action for providing a link to them.”
“Let’s remember, Pooley is Deputy Director of WIPO, he works with and reports to Gurry, and he has made very serious allegations,” he said. “If that is not newsworthy, I do not know what is.” Fox News, a US publication frequently critical of the UN, also posted a story on the Pooley report.
Gurry also faced pressure over the inability of members to agree on the organisation’s budget at the last regular General Assembly in October 2013, following upset over Gurry having quietly signed contracts with China and Russia to open new WIPO offices there (as well as made plans to do the same with several other countries), without formally consulting the full membership beforehand, though this has not been past practice (IPW, WIPO, 18 November 2014). The budget was subsequently agreed at an extraordinary General Assembly in December, and a new policy was adopted for establishing new offices. Perhaps not surprisingly, China and Russia have made public shows of support for Gurry since the contract signings.
In addition, a politically charged issue arose midway through Gurry’s first term when it was made public that WIPO provided computer equipment to heavily sanctioned North Korea and Iran, as part of its technical assistance to them as WIPO members. The UN reviewed documents provided to it by WIPO and found no wrongdoing, but the issue has lingered (IPW, WIPO, 4 December 2013).
The fact that Gurry was challenged for his second term suggests that members are unsettled about his return.
General Assembly Procedure
Traditionally, the General Assembly rubber stamps the Coordination Committee recommendation. There was some confusion in recent weeks over what would happen if the Assembly declined the nomination, as the question had not arisen before. According to the WIPO Convention, if the Assembly does not accept the nomination, the Coordination Committee has to come up with another candidate.
Article 8 (3) (v) of the Convention Establishing the World Intellectual Property Organization (Signed at Stockholm on July 14, 1967 and as amended on September 28, 1979):
(v) when the term of office of the Director General is about to expire, or when there is a vacancy in the post of the Director General, nominate a candidate for appointment to such position by the General Assembly; if the General Assembly does not appoint its nominee, the Coordination Committee shall nominate another candidate; this procedure shall be repeated until the latest nominee is appointed by the General Assembly;
According to the Convention, the director general is appointed by a majority of the Assembly, suggesting that his nomination would only be sent back if a majority did not support it, which is unlikely by all accounts.
If it were sent back, it is not clear how the committee would come up with another name. The second-place finisher in the Coordination Committee election was WIPO Deputy Director General Geoffrey Onyeama, and there were two other candidates in the election, Ambassador Alfredo Suescum [Panama] and Ambassador Jüri Seilenthal [Estonia]). But perhaps a new election would be called.
Tomorrow’s event is an extraordinary General Assembly, proposed by Gurry and approved by members last October as a way to allow for the newly named director general to have time to choose his/her cabinet before the existing cabinet members leave office in November. Otherwise, the director general’s appointment is not final until early October, leaving a very short window for cabinet members to be appointed.
Members asked informally in recent weeks have indicated that it is politically difficult to raise questions in tomorrow’s General Assembly, even if they might have some questions regarding the allegations. A number of countries also mentioned the potential negative impact on the image of WIPO of a high-profile investigation.
It was noted that even if Gurry is appointed tomorrow, member states have the right to launch an investigation at any time.
There is speculation over what is fuelling the allegations, some of which first arose during the last election cycle in 2007. Gurry is an undisputed expert in the field and has overseen numerous accomplishments at WIPO in his first term. But reports persist. People have gone to significant lengths to collect available evidence, and to make suggestions and assumptions that are unverified.
Pooley, a long-time American patent attorney (note: the US government has not taken a public position on this), said in his report that he is bound by his post and as a lawyer to report wrongdoing if he becomes aware of it. He also said he does not stand to gain, as his post ends in November and he’ll return to the private sector. And in case the Assembly does not accept the Gurry nomination, Pooley suggested that Deputy Director General Johannes Wichard of Germany could take over the leadership post in the interim.
Some have also suggested that developed countries – traditionally the holders of the vast majority of intellectual property rights, which are vital to their economies – have become disenchanted with Gurry. This theory takes the view that his first term was marked by the rise in importance of emerging economies, and by a negotiating agenda dominated by developing country interests. (These include an emphasis on the Development Agenda, treaties on exceptions and limitations to copyright, and possible treaties on genetic resources, traditional knowledge and folklore, as well as the entrance into the hallowed patent law committee of issues such as public health.)
Design Law Treaty
Also on the agenda of the General Assembly is a committee recommendation to move to a final treaty negotiation (diplomatic conference) on a design law treaty. Getting agreement has not been as easy as some expected (IPW, WIPO, 21 March 2014).
William New may be reached at email@example.com.