8 Oct
2016

Gurry investigation dropped by WIPO member states; transparency and accountability are the losers - UPDATE

This blog was updated on 12th October to include new information about the vote that took place in Geneva on 7th October and to provide links to further documents that have been made public, including what is said to be an unredacted copy of the report of the the investigation into the allegations made against Francis Gurry.  

The news that WIPO member states have endorsed a decision taken by the organisation’s Coordination Committee to drop any further investigation of the allegations of serious misconduct levelled against Director-General Francis Gurry is no surprise; a few days ago this blog predicted it would happen. However, for anyone who believes that the IP system is best served by transparency and accountability, the fact this outcome was so predictable does not make it any less depressing.

Ever since the then WIPO deputy Director-General James Pooley first accused Gurry of being involved in taking WIPO staff members’ DNA and in interfering to alter the outcome of a procurement process in his April 2014 Report of Misconduct, IAM has taken no position on the claims. We don’t know if they were true; but we do know that they should have been investigated quickly, thoroughly, independently and with full protection for witnesses.

Unfortunately, that did not happen. Instead, for over a year WIPO proved itself incapable of acting. Then, when the investigation was finally handed over to the UN’s Organisation of Internal Oversight Services (OIOS), the resulting report – including the names of all witnesses – was made available to nobody but the Chair of the General Assemblies and Gurry himself, while only a heavily redacted version was given to member states; and then only after months of delay.

In its report, the OIOS found that: “Although there are strong indications that Mr Gurry had a direct interest in the outcome of the DNA analysis, there is no evidence that he was involved in the taking of the DNA samples.” Furthermore: “There is no evidence that Mr Gurry attempted to suppress an investigation into the taking of DNA samples.” However, it also made clear that the Swiss authorities - who would have had the relevant information about the DNA samples and how they were acquired - refused all requests to co-operate and provided no information whatsoever.

With regard to the procurement process, the report found that: “Mr Gurry had directly influenced procurement processes so as to facilitate the award of the contract to [REDACTED].”But, it went on: “There was no evidence that Mr Gurry directly or indirectly gained any financial or personal benefit from the procurement processes.” However: “In disregarding the financial weight of the predetermined evaluation criteria, Mr Gurry acted in non-compliance of WIPO’s Procurement Instructions.”

Throughout the last two and a half years the very strong impression given is that many people inside and around WIPO have done as much as they can to prevent a full investigation taking place and to make it as hard as possible for witnesses to come forward with confidence. Indeed, when Gene Quinn of IP Watchdog linked to the Pooley report he was immediately – and shamefully - threatened with legal action if he did not take the link down. Even when the OIOS did finally get involved, there was great unwillingness to share its findings. As for transparency – forget about it. We long ago gave up asking for comment from WIPO on this matter as when we did we always received the same answer: “We have nothing to say.”

As the UN agency responsible for the administration of the global IP system, as well as the provider of services that raise tens of millions of dollars in fees each year, WIPO has a unique responsibility not just to its user community, but also to the wider global population. At a time when IP issues are rising up the political agenda, and are more controversial than they have ever been before, WIPO should be seen to be as transparent and as accountable as possible. Anything less risks bringing the IP system into disrepute. It is understandable that Gurry would be hurt and upset by the accusations levelled at him, but as someone who put himself forward for public office he has to accept that such things come with the territory.

What is left at the end of this sorry episode is a sense of unfinished business. The OIOS report goes some of the distance towards getting to the bottom of things, but the heavy redaction that seems to go way beyond protecting witness identities and the refusal of the Swiss authorities to co-operate leave many questions unanswered. What we do know, though, is that as things stand WIPO is not capable of properly policing itself. We have only got to this point because the previous Chair of the General Assemblies took the decision to bypass the organisation’s internal procedures and to go to the OIOS.

The simple fact is this: when someone as senior as Pooley makes allegations about someone as senior as Gurry, then we have the right to expect that they will be taken extremely seriously, independently investigated as soon as possible and the results made public. It is to WIPO’s shame that this is not what occurred. And it is absolutely essential that processes are now put in place to ensure that something similar never happens again.    

The Gurry complaint and investigation – a timeline*

  • April 2014 – WIPO deputy Director General James Pooley submits a Report of Misconduct to the chairs of WIPO’s General Assemblies and its Coordination Committee in which he makes a series of very serious allegations about Director General Francis Gurry.

  • April – Gene Quinn, who runs the IP Watchdog website, runs a story on Pooley’s allegations and links to the report. He is threatened with legal action by WIPO legal counsel Edward Kwakwa if he does not take the link down.

  • April - The Report is referred to WIPO’s Independent Audit and Oversight Committee (IAOC), whose members do not work at the organisation, but are drawn from various member states.

  • May – Gurry re-elected as WIPO Director-General for a further six year term.

  • May - The IAOC recommends that the allegations made in the report be investigated by the director of WIPO’s internal audit unit (IAU), who is a member of WIPO staff and who reports to the Director-General.

  • May - The director of the IAU recuses himself, saying he has a conflict of interest because he is mentioned in the report as a participant in the events Pooley describes.

  • May - The IAOC asks for legal advice from WIPO’s legal team – also part of the organisation’s permanent secretariat and responsible to the Director-General – about the IAU director’s possible conflict of interest. The advice given is that a conflict of interest does not exist. The IAOC says that the director is therefore able to undertake the investigation. The IAU director continues to refuse.

  • June - In light of this refusal, experts from two outside agencies are asked to evaluate the Pooley report to decide whether an investigation should be undertaken.

  • August – The experts submit their assessment and conclude that an investigation should begin.

  • September – Moncef Kateb, the elected head of WIPO’s Staff Council, is suspended and then fired for alleged misconduct just days before he is due to address the General Assemblies, where, it is said, he was to raise “inconvenient questions on Mr. Gurry's style of leadership”.

  • October – An external investigation of the Pooley allegations gets underway with several witnesses being contacted to arrange interviews.

  • October/November – A complaint of wrongdoing is filed against the director of the IAU by an individual who, it is understood, is mentioned in the Pooley report as having an ancillary role in one of the events it recounts.

  • November – The IAOC recommends that the complaint filed against the director of the IAU be investigated externally and that while this takes place all other investigations be halted. As a result, the external investigation into the Pooley allegations is suspended.

  • March 2015 – The director of the IAU resigns from WIPO, effective 1st May.

  • March – The IAOC states that an interim replacement for the out-going director of the IAU will be recruited and that this individual is likely to be in a position to conduct the investigation into the Pooley complaint. Thus, the investigation will become an internal WIPO one and will be undertaken by someone who reports to the Director-General.

  • May - Päivi Kairamo, then chair of WIPO’s General Assemblies, asks the United Nations’ Organisation of Internal Oversight Services (OIOS) to investigate the Pooley allegations.

  • September – the United States takes the unprecedented step of withholding a portion of its funding to WIPO over the slow pace of the investigation process. It also emerges that prior to his departure from WIPO in November 2014, Pooley filed a complaint concerning his treatment since the submission of the misconduct report. WIPO’s acting ethics officer refused to look into the claims on the grounds that Pooley was no longer employed by the organisation.

  • February 2016 – the OIOS submits a report based on the findings of its investigation to new WIPO General Assemblies chair Gabriel Duque. The full report – including the identities of all witnesses - is also sent to Gurry, but is not sent to Pooley or to any of the WIPO member state delegations.

  • February – a US House of Representative committee holds a hearing entitled “Establishing Accountability at the World Intellectual Property Organization: Illicit Technology Transfers, Whistleblowing, and Reform”. Testimony is heard from Pooley, Miranda Brown (a former adviser to Gurry) and Mathew Parish, legal counsel to WIPO’s Staff Council. During questioning, Pooley repeats his original allegations, and adds others; all three witnesses talk about alleged ill-treatment of witnesses and whistleblowers.

  • April – a three-page summary of the 51-page OIOS report emerges. This states that there is no evidence linking Gurry to the taking of the DNA, but that he did directly influence the procurement process. A number of member state delegations, including the US, continue to press to see the full report.

  • May – a group of countries, including the US, ask Duque to provide access to the full report.

  • June – two representatives of each WIPO member state delegation are given access to the OIOS report and Gurry’s comments on it. They are able to spend three sessions of two hours each scrutinising the documents in a controlled room at WIPO HQ.

  • August – Duque and WIPO Coordination Committee Chair François Ngaranibe recommend to member states that all further investigation of the allegations against Gurry be dropped.

  • August – Pooley sends a letter to US Congressman Christopher Smith (chairman of the House of Representatives Africa, Global Health, Global Human Rights and International Organization Subcommittee) and Isobel Coleman, the US Representative to the United Nations for UN Management and Reform, protesting the Duque/Ngaranibe recommendation.  

  • September, heavily redacted copies of the OIOS report are sent to WIPO member states, along with Gurry’s response to it, including an annex entitled On the Motivation of Mr Pooley’s Complaint. Pooley sends his response to this to each delegation.

  • September – WIPO Staff Council legal counsel Matthew Parish calls for Gurry’s immediate dismissal and the lifting of his diplomatic immunity.

  • October – WIPO member states endorse the Duque/Ngaranibe recommendation to drop any further investigation into the allegations made against Gurry.

*Because of the lack of transparency that there has been since April 2014, please note that this cannot be a complete timeline: key events may have been missed out because they have not been reported or made public in any other way; while some dates are estimations rather than precise.

UPDATE - IAM has received new information about the vote in Geneva last week. Apparently, it took place after WIPO’s recently-appointed legal counsel Frits Bontekoe, who reports directly to Francis Gurry, provided an opinion which stated that under the organisation’s internal investigation charter the recommendation made by the Chairs of the Co-ordination Committee and of the General Assemblies to drop the investigation into the Pooley allegations and to take no action against Gurry for failing to comply with WIPO procurement procedures was not reviewable by the member states. Yesterday, IAM contacted the WIPO press office to confirm this, but as yet has not received a response.

Further documentation surrounding the investigation has now been made public on the Gentium Law website. Gentium’s managing partner Matthew Parish is legal counsel to the WIPO Staff Council. The new material is:

Joff Wild

Author | Editor-in-chief

[email protected]

Joff Wild