[CCWG-ACCT] premature jurisdiction debates

Fri Jun 24 20:10:43 UTC 2016

“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.”

I guess we discuss them because some people are in fact confused about them.
This is a good example – US courts (like many others around the globe) often
apply the laws of foreign jurisdictions and not the laws of the United
States to disputes.  So the basic answer is that the courts adjudicate the
laws as directed 
 by statute or by the parties.  Here in the US, for
example, we often apply English law; we apply admiralty law of nations; and
I have personally participated as a representative in a dispute in which the
principal question involved the laws of Germany.  We apply these laws to
disputes because the contract between the parties so directs.  If ICANN said
in its registry contracts (for example) that the suit would be heard in US
courts but that the law of Switzerland would apply the US courts would honor
that designation.  

ICANN indeed is free to designate ANY venue in the globe and ANY applicable
substantive law it wishes for its contractual disputes and the US courts
would enforce those contracts.  Despite your contention otherwise, the only
aspect of US law that cannot be contractually derogated from because of
ICANN’s incorporation in California is the California law regarding the
formation and operation of corporations.

Paul

Paul

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From: accountability-cross-community-bounces at icann.org
[mailto:accountability-cross-community-bounces at icann.org] On Behalf Of
parminder
Sent: Friday, June 24, 2016 11:55 AM
To: accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] premature jurisdiction debates

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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