[CCWG-ACCT] premature jurisdiction debates

Wed Jun 22 22:00:10 UTC 2016

The issues you cite are not issues of US government interference.  The
Weinstein case involves private parties.  The plaintiffs had a right to
argue that .ir was an asset of Iran and subject to seizure.  They could and
would have made this argument regardless of where ICANN was located (since
there are ways of seizing assets located in other jurisdictions, to the
extent their arguments relied on the idea that .ir was located in the US).
ICANN's "jurisdiction" is thus irrelevant.

Similarly, whether or not there are TRIA-like laws in other jurisdictions
is beside the point.  The general issue is the ability to seize assets to
satisfy a court judgment; as far as I know, this is common to most if not
all jurisdictions.  Similarly, most countries will hear cases to enforce a
judgment granted in another country.

I'm not against addressing the complications.  But we need to be careful in
what we identify as complications that arise from ICANN's "jurisdiction"
(which means a number of different things, which I know we will unpack in
the months to come).

Greg

On Wed, Jun 22, 2016 at 5:20 PM, farzaneh badii <farzaneh.badii at gmail.com>
wrote:

> There is a difference between the possibility of interference and
> interference. I agree that up until now there was no interference and that
> US Department of Justice opposing might have helped too and I do agree that
> there are other ways to limit such interferences even by referring to the
> Foreign Sovereign Immunities Act ( which I think ICANN did in its
> argument). But we cannot deny that US jurisdiction gives the possibility of
> interference (might be unsuccessful and might not work) especially in the
> case of Iran.
>
> *"**If ICANN were located in another jurisdiction, that jurisdiction's
> courts would be hearing these disputes. " : *the Plaintiff used and is
> using Terrorism Risk Insurance Act of 2002 in its arguments. Are there
> Acts similar to TRIA in other countries? If yes then the statement is
> correct. If not then we might want to look at what can be done to avoid
> disputes similar to Iran's case.
>
> Just to clarify I am of the opinion that the issue of jurisdiction has
> been championed by states while they are not providing many good reasons
> for it. It might be that there are not many real good reasons for it. We
> just have to solve some complications and we are good to go. But we have to
> address the complications.
>
> On 22 June 2016 at 22:53, Greg Shatan <gregshatanipc at gmail.com> wrote:
>
>> In *Weinstein v. Islamic Republic of Iran*, the plaintiffs attempted to
>> enforce the judgment by seizing the .ir TLD, claiming that it was an asset
>> of Iran.  The US Department of Justice filed a brief opposing the seizure,
>> stating that a TLD is not property or an asset, and that the TLD was beyond
>> the reach of the US law governing seizure of certain foreign assets.
>>  (ICANN submitted similar arguments to the court.)  The federal judge
>> hearing the case ruled against this attempt, siding with ICANN and DOJ.  Is
>> this what you are calling U.S. "interference"?  Would it have been better
>> if DOJ had not filed a brief?
>>
>> As Phil points out, the case is currently on appeal to the D.C. Circuit.
>> It was argued but has not yet been decided.
>>
>> Greg
>>
>> On Wed, Jun 22, 2016 at 4:36 PM, farzaneh badii <farzaneh.badii at gmail.com
>> > wrote:
>>
>>> Hi Rubens
>>>
>>> I think the interference in .ir and Syria case is quite different from
>>> .africa. , .In .ir  case the claimant had a judgment against iran which it
>>> had obtained through the us courts relying on US laws and wanted to enforce
>>> the judgement through attaching .ir  to the claimant. I call that
>>> interference. In .africa two competing organizations have a dispute over
>>> the delegation of .africa. I am not sure if we can compare the two.
>>> On 22 Jun 2016 22:14, "Rubens Kuhl" <rubensk at nic.br> wrote:
>>>
>>>> Dear Phil,
>>>>
>>>> I can´t fully follow your segmentation
>>>>
>>>> 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.
>>>>>
>>>>
>>>> Agree
>>>>
>>>>>
>>>>> 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,
>>>>>
>>>>
>>>> why not? Who is going to hear the case set liabilities and eventually
>>>> compensation????
>>>>
>>>> or criminal charges against an ICANN employee for embezzlement, etc.
>>>>>
>>>>
>>>> Agree
>>>>
>>>>>
>>>>>
>>>>>
>>>>> Philip S. Corwin, Founding Principal
>>>>> Virtualaw LLC
>>>>> 1155 F Street, NW
>>>>> Suite 1050
>>>>> Washington, DC 20004
>>>>> 202-559-8597/Direct
>>>>> 202-559-8750/Fax
>>>>> 202-255-6172/Cell
>>>>>
>>>>> Twitter: @VlawDC
>>>>>
>>>>> "Luck is the residue of design" -- Branch Rickey
>>>>>
>>>>> From: accountability-cross-community-bounces at icann.org [mailto:
>>>>> accountability-cross-community-bounces at icann.org] On Behalf Of
>>>>> Mueller, Milton L
>>>>> Sent: Wednesday, June 22, 2016 3:15 PM
>>>>> To: Guru Acharya; Roelof Meijer
>>>>> Cc: accountability-cross-community at icann.org
>>>>> Subject: [CCWG-ACCT] premature jurisdiction debates
>>>>>
>>>>>
>>>>>
>>>>> In the reflexive approach, you would ask "what are the institutional
>>>>> mechanisms or procedures to ensure that jurisdiction issue can be addressed
>>>>> in an adverse situation where the US jurisdiction is longer tenable,
>>>>> however rare it may it?" In the absolute rarest of rare cases that the US
>>>>> legislature or judiciary try to interfere with community decisions (the
>>>>> black swan scenario), how would ICANN ensure that this interference is
>>>>> contained/minimised? What are the institutional mechanisms or procedures
>>>>> for addressing the situation where the US (or any other) jurisdiction is no
>>>>> longer hospitable/ideal for the ICANN policymaking or IANA functions? These
>>>>> are the questions that we should be asking in the WS2 on jurisdiction.
>>>>>
>>>>> MM: I think this is a good point. Even advocates of US jurisdiction or
>>>>> those who, like me, think there is just no better alternative and that the
>>>>> disruption and risks caused by a change are not worth the uncertain
>>>>> improvements, can easily agree that there should be procedures or plans for
>>>>> how to respond to interference by the U.S. government.
>>>>>
>>>>>
>>>>> Dr. Milton L. Mueller
>>>>> Professor, School of Public Policy
>>>>> Georgia Institute of Technology
>>>>>
>>>>>
>>>>>
>>>>> ________________________________
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>>
>
>
> --
> Farzaneh
>
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