[CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT Session #18 31 March

Paul Rosenzweig paul.rosenzweig at redbranchconsulting.com
Mon Apr 6 22:11:44 UTC 2015

+1 Indeed!
Sent from myMail app for Android
Monday, 06 April 2015, 05:55PM -04:00 from Greg Shatan <gregshatanipc at gmail.com>:
>Please permit me a few thoughts  On 'Jurisdiction' .
>In my opinion, discussions of "jurisdiction" can only be useful and worthwhile if the following criteria are present:
>A.  Use the Word "Jurisdiction" Accurately .  The participants must be clear and consistent in the meaning and use of the term "jurisdiction."  Too often, they are not. As Bruce Tonkin (among others) has pointed out, "jurisdiction" has several meanings, which are essentially separate from each other.  To paraphrase Bruce's list (I may be leaving something out, for which I apologize):
>1.   Legal Establishment :  The country (and in a federal system the state/province/etc.) in which an entity is legally incorporated or established.
>2.   Physical Domicile and/or Location : The country (or countries) (and in a federal system the states/provinces/etc.) in which an entity is (a) physically headquartered/"domiciled" and/or (b) located.
>3.   Legal Recourse/Venue (Ability to Sue or Be Sued) : The country (or countries) (etc.) (or other forums, such as international courts and tribunals) where an entity can (a) sue and/or (b) be sued.  May be specified in contracts, but also a matter for legal determination.
>4.   Choice of Law :  The country (etc.) whose laws will govern a contract.  Often specified in contracts, but may also be a matter for legal determination.
>As an example (and as Avri and David pointed out), discussions that start out with concerns or claims about the location of Legal Establishment or Physical Domicile, can turn out to be about Legal Recourse.  I am tempted to suggest that the word "jurisdiction" be retired from our conversations, and that one of these more discrete terms be used instead.  That way we would know what we are talking about when we talk about "jurisdiction."
>As another example, it is quite possible (and quite common) to have an entity incorporated in Delaware, headquartered in New York, with locations in 50+ countries (some of which could be subsidiaries incorporated in those countries).  This entity could then enter into a contract under French law requiring that cases arising under the contract be litigated in the U.K.  A third party, affected by the contract sues in Morocco, where the entity has a physical location.  What is the jurisdiction of the entity?
>B.  Identify the Problem to be Solved .  Discussions of "jurisdiction" really need a  clear  and  accurate  statement of the problem to be resolved. Too often, these conversations start out with general concerns about "jurisdiction," (often, but not always, asserting that U.S. or "Californian" "jurisdiction" is problematic or undesirable), but don't clearly state what the problem is.  Or, if they do, it tends to be inaccurate, speculation or FUD.  Overblown and highly speculative claims and extrapolation from facts (or "facts") to extreme consequences are also a common problem.  If we don't know what the specific problem or concern is, the conversation will tend to deteriorate or dissolve.  In contrast, a clear, accurate statement of a problem should provide the basis for useful discussion.  Focusing on a particular problem or closely related problem set also helps.
>C.  Use Accurate Statements of Facts .  This problem begins with inaccurate and overblown problem statements, but it is compounded when the responses (pro and con), also misstate facts (intentionally or not) and extrapolate from their own "facts" or those on the other side.  Let's stick to the facts, even if it makes it harder to shoot from the hip. (Conversely, let's be tolerant of minor, unintentional inaccuracies.)  Intentionally claiming something to be a fact when it is not is particularly counterproductive; although it is an interesting rhetorical tactic, it impedes the search for truth and for common ground.
>D.  Say Something about the Solution .  To set the discussion on the right track, it's really important that the originator tries to make a  clear and  factually-grounded statement of what a solution needs to accomplish.  This is not merely a corollary of (B). Since this is primarily a practical discussion, not a philosophical one, solutions are critical.  Throwing problems at the group with no hint of a what a solution should include and achieve doesn't really help.  It leaves the others "grasping at straws," rather than solving the problem. There doesn't need to be a ton of detail -- just enough to get people going in the right direction.  However, it's important that the solution be concrete and grounded in fact -- it's almost as unhelpful to throw out a broad principle or concept which may or may not exist or practically be available (e.g., "international jurisdiction") or to claim that there's a better "jurisdiction" (place of legal establishment) without being specific about which potential jurisdictions to consider or why they are "better."
>Even if discussions of "jurisdiction" meet all these criteria, there is plenty of room for discussion, disagreement and development -- but at least it is more likely to be productive and not a waste of time.  Where one or more of these criteria is absent, the discussion tends to get mired down in misunderstandings and attempts to clarify what flavor of "jurisdiction" is being discussed, in debunking of each other's "facts," in nebulous philosophical concerns, and in unsupported assertions that the "grass is greener" somewhere else.  Ultimately, the discussion might get back on track, but the amount of time and effort necessary to work out what the problem is, what kind of "jurisdiction" it relates to, and how the problem might be solved -- in other words, to get the discussion to the "starting line" -- is just a huge waste of resources.
>Unfortunately, I think this current thread is in danger of failing on all four criteria.  Efforts are being made to rehabilitate it, and I may join them.  In any event, I would urge the participants in this and other "jurisdiction" discussions to give some consideration to my thoughts here, and to make efforts to adopt these criteria when "jurisdiction" is being discussed.
>Thank you for indulging me if you have read this far.
>Greg Shataqn
>On Mon, Apr 6, 2015 at 1:37 PM, Paul Rosenzweig  < paul.rosenzweig at redbranchconsulting.com > wrote:
>>+1.  For accountability purposes, the key is making sure the IRP has
>>adequate remit to address all issues of concern and adequate enforceability
>>of its judgments.  I doubt that we will ever have enforceability against
>>sovereign nations except to the extent they agree to be bound -- but all
>>other parties ought to be bindable as a condition of participation,
>>including ICANN ...
>>Paul Rosenzweig
>>paul.rosenzweig at redbranchconsulting.com
>>O:  +1 (202) 547-0660
>>M:  +1 (202) 329-9650
>>VOIP:  +1 (202) 738-1739
>>Skype: paul.rosenzweig1066
>>-----Original Message-----
>>From: McAuley, David [mailto: dmcauley at verisign.com ]
>>Sent: Monday, April 6, 2015 11:10 AM
>>To:  accountability-cross-community at icann.org
>>Subject: Re: [CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT
>>Session #18 31 March
>>Speaking here of my personal opinion, I agree with Bruce that jurisdiction
>>(in terms of where states, IGOs, and other stakeholders might be able to
>>take issues to a "jurisdictionally appropriate" court) is less about where
>>ICANN is physically located/incorporated and more about the ability of
>>affected parties to use courts that are appropriate for them.
>>Sidley/Austin, the lawyers advising the CWG (and the CCWG in conjunction
>>with the Adler firm), noted during the CWG meeting in Istanbul that
>>canvassing the laws of all possible countries in this respect can get very
>>costly very quickly and add to that that it would be very time-consuming.
>>I would argue that the outcome of any such research may not be that clear in
>>any event - concepts of jurisdiction for waging lawsuits are changing as the
>>world economy becomes more and more digital.  ICANN is probably already
>>subject to jurisdiction for litigation in a whole lot of places around the
>>globe (the answer won't become absolutely clear vis-a-vis any particular
>>country until litigation on the issue occurs there and jurisdiction is
>>addressed by the court).
>>And so my answer to Bruce's suggestion that the CCWG could perhaps get legal
>>advice on how to ensure access to appropriate courts would be to instead
>>ensure that IRP has scope to consider issues of substance and that a way be
>>found to have IRP rulings enforced. It seems to me that that would be better
>>than canvassing endless and possibly opaque laws from around the world.
>>David McAuley
>>-----Original Message-----
>>From:  accountability-cross-community-bounces at icann.org
>>[mailto: accountability-cross-community-bounces at icann.org ] On Behalf Of Bruce
>>Sent: Sunday, April 05, 2015 7:09 PM
>>To:  accountability-cross-community at icann.org
>>Subject: Re: [CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT
>>Session #18 31 March
>>Hello Avri
>>>> On Jurisdiction:
>>I agree that this is a basic topic that still needs to be covered.  I
>>believe it is about making sure that any of the stakeholders has a chance to
>>argue their case in a jurisdictionally appropriate venue. For States and
>>IGOs, that is not generally the US court system. A solution for this does
>>seem to be a necessary part of any accountability solution.
>>I think you have stated the problem well here.   It might be an area where
>>the CCWG can get some legal advice on how to ensure the above can be
>>achieved.   Ie it is less about where ICNAN is physically located or
>>incorporated - and more about the ability of affected parties to use courts
>>that are appropriate for them.
>>Bruce Tonkin
>>Accountability-Cross-Community mailing list
>>Accountability-Cross-Community at icann.org
>>Accountability-Cross-Community mailing list
>>Accountability-Cross-Community at icann.org
>>Accountability-Cross-Community mailing list
>>Accountability-Cross-Community at icann.org
>Gregory S. Shatan  ï   Abelman
>Frayne & Schwab
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>ICANN-related:   gregshatanipc at gmail.com
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