[CCWG-ACCT] premature jurisdiction debates

[Phil Corwin]

Agree with Greg. I’m not familiar with the details of the Syria litigation, but the one involving Iran was brought under a US law that allows for seizure of foreign assets for the benefit of the victims (or families) of state-sponsored terrorism. The district court found against the plaintiff and the lawsuit has not been supported by the US Government (I believe it is on appeal).

The .africa dispute involves ICANN but is primarily a dispute between two private parties seeking that gTLD, and looks to be nearing conclusion.

While the type and outcome of such litigation will vary by national jurisdiction, lawsuits of this type are possible so long as ICANN is domiciled in a nations-state. I would hope there is general acceptance that ICANN should be subject to some body of law (or bodies, as Greg points out for its non-US offices) and not exist in a law-free zone.

Philip S. Corwin, Founding Principal
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From: Greg Shatan [mailto:gregshatanipc at gmail.com]
Sent: Wednesday, June 22, 2016 4:30 PM
To: Rubens Kuhl
Cc: Phil Corwin; accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] premature jurisdiction debates

Lawsuits in US courts are not "interference of the United States," unless the United States is the plaintiff.  In the US, courts are limited to hearing disputes between private parties.  The US courts do not (as in some jurisdictions) have any proactive, prosecutorial or investigative powers. (In limited circumstances, in the context of an actual litigation, the court can appoint experts, but that's about as far as that goes.)

The cases Rubens cites are disputes between private parties or between a private party and ICANN.  The US court is the forum for those disputes.  This is not "interference of the United States."

If ICANN were located in another jurisdiction, that jurisdiction's courts would be hearing these disputes.  Notably, ICANN is subject to being sued in other countries where it has offices, so there are already alternatives if plaintiffs want to find a different venue in which to seek redress.  While this is a possibility, I believe all plaintiffs that have sued ICANN have done so in the US.  This may say something about the appeal of the US as a jurisdiction for resolving disputes.

Greg

On Wed, Jun 22, 2016 at 4:13 PM, Rubens Kuhl <rubensk at nic.br<mailto:rubensk at nic.br>> wrote:

Em 22 de jun de 2016, à(s) 16:39:000, Phil Corwin <psc at vlaw-dc.com<mailto:psc at vlaw-dc.com>> escreveu:

So long as we have a common understanding of what would constitute “interference by the U.S. government” (of which there has been little to none since ICANN’s inception, with the possible exception of the delay in .xxx delegation to the root). I presume you are advocating deciding upon a process to address such an occurrence, rather than making a decision now about an alternate jurisdiction for a situation that may never arise, or occur decades from now.

I’ll start that discussion by stating that it would likely include interference in ICANN’s policymaking process (outside of advocacy within the GAC) or trying to block or compel a change in the root zone, through methods that are inconsistent with the Bylaws.

I don’t think it should include private litigation brought against ICANN and heard in state or federal court; or law enforcement actions, such as bringing an antitrust action if there is an allegation of illicit pricing decisions, or criminal charges against an ICANN employee for embezzlement, etc.


There is already litigation in California and federal courts that would compel changes in the root zone, like the litigation against the ccTLDs of Syria and Iran, or the current .africa litigation... so this interference of the US legal system within ICANN policy making process is already happening in some cases or imminent in others.





Rubens







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