[CCWG-ACCT] premature jurisdiction debates

[parminder]

On Thursday 23 June 2016 02:00 AM, Greg Shatan wrote:
> 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.

Courts do not enforce plaintiff’s will, *they enforce the law of the
US*. A plaintiff's appeal is just the trigger or the proximate cause. 
This is quite basic. Not sure why we are discussing such basic factual
stuff, and are confused about them. Just because they help a case for
sticking to US jurisdiction!? Bec if somehow law can be proved to be
neutral, technical, kind of thing, then one can pursue the argument that
it doesnt matter which one is employed.

Law is something that comes from the 'will of the people' of a
particular nation and is therefore legitimately specific to it, and is
illegitimate to apply to others. Tweaking the famous call from US
independence struggle "no taxation without representation" to "no
legislation without representation". Taxation is after also a law, and
its enforcement. If freedom and self- representation was important to
the US centuries ago, and hopefully still is, please give some
consideration to the rest of the world too. A humble appeal.

A comment below on another regularly expressed confusion ...

> 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,

It is only useful to sue an organisation in a country whose judicial
authorities can enforce their decisions over that organisation, as US
courts can over ICANN as a US registered body. It is vain to and
meaningless to sue it elsewhere. Most courts outside would even refuse
to take on the case pointing to the pointlessness of it....

BTW, if it was the same about suing it wherever ICANN was, why then not
let it be in a non US location... Why is US and the USians so keen to
keep it in the US, so much so that the jurisdiction issue even suddenly
disappears from the agenda of the workstream 2, only to make an
reappearance bec Brazil gov is too strong a party to be treated lightly :)

parminder

> 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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