[CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

Mon Dec 19 20:45:59 UTC 2016

I was not disputing the existence of jurisdictional issues. I was pointing out the implausibility of the idea that the governments of the world would grant jurisdictional immunity to ICANN in the absence of precedent.

Best regards, 

John Laprise, Ph.D.

Consulting Scholar

 <http://www.linkedin.com/in/jplaprise/> http://www.linkedin.com/in/jplaprise/

From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of farzaneh badii
Sent: Monday, December 19, 2016 1:57 PM
To: Phil Corwin <psc at vlaw-dc.com>
Cc: accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

I am afraid the jurisdictional problems that are faced by certain users located in certain countries are not hypothetical. They are real problems. As we know about the case of .IR was a very serious case, and it is still dragging .... how much uncertainty.IR registrants who are mainly from the private sector should go through? Why? And it happened because of ICANN jurisdiction nothing else. I am not for discussions about changing ICANN's incorporation. But immunity I believe should be discussed. If you don't see the problem, it does not mean it does not exist. The reason it seems like it is not the problem is that those who face them don't know where to go to raise it! 

On 19 December 2016 at 14:49, Phil Corwin <psc at vlaw-dc.com <mailto:psc at vlaw-dc.com> > wrote:

I believe that requesting views regarding “providing possible jurisdictional immunity” are both misleading and outside the scope of this WG.

ICANN based upon the MSM is of necessity an entity that is private in nature in which civil society, academia, business, and other private parties formulate policy and governments have a secondary role to  provide advice. The only entities I know other than nation-states that enjoy any degree of jurisdictional immunity are International Intergovernmental Organizations (IGOs) established by treaty, and in those organizations governments have the controlling role. Hence, pursuit of any type of jurisdictional immunity is equivalent to an effort to change the fundamental nature of ICANN,  as well as being in violation of the key condition of the IANA transition, which is that ICANN would not become an IGO. In addition, providing ICANN with jurisdictional immunity would insulate it from legal process and hence undermine accountability.

Finally, as I know based upon my current tenure as Co-Chair of the WG looking at access to curative rights processes by IGOs, when we sought expert legal advice on the recognized scope of immunity for IGOs we learned that such immunity is not absolute and that the scope is based upon the specific fact situation involved as well as the national court in which the immunity is claimed. Hence, going down this road would require a tremendous amount of additional legal research dealing with a variety of hypothetical scenarios in separate national jurisdictions. 

Philip S. Corwin, Founding Principal

Virtualaw LLC

1155 F Street, NW

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Washington, DC 20004

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"Luck is the residue of design" -- Branch Rickey

From: accountability-cross-community-bounces at icann.org <mailto:accountability-cross-community-bounces at icann.org>  [mailto:accountability-cross-community-bounces at icann.org <mailto:accountability-cross-community-bounces at icann.org> ] On Behalf Of parminder
Sent: Monday, December 19, 2016 8:10 AM
To: accountability-cross-community at icann.org <mailto:accountability-cross-community at icann.org> 
Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

On Saturday 17 December 2016 12:40 AM, Mueller, Milton L wrote:

SNIP 
John Laprise's wording was much, much better: 
"What are the advantages or disadvantages, if any, relating to changing ICANN’s jurisdiction*, particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms?"

This formulation does not include possibilities of jurisdictional immunity. 

Something like 

"What are the advantages or disadvantages, if any, relating to changing ICANN’s jurisdiction*, or providing possible jurisdictional immunity, particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms?"

would be better.

parminder 

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Farzaneh 

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