[CCWG-ACCT] premature jurisdiction debates

Nigel Roberts nigel at channelisles.net
Sat Jun 25 06:46:08 UTC 2016 

Courts make orders.

The mechanism of enforcing such orders varies. Sometimes the orders are 
self-enforcing.

Sometimes the courts make further orders to enable enforcement.

Action can be taken against personal property (what we call arresting 
personalty), real property, or in some cases against the person (locking 
people up for contempt of court).

But so what?


On 25/06/16 07:38, Dr Eberhard W Lisse wrote:
> Courts do not enforce the law of a country. I doubt even criminal courts
> do that, Police and similar agencies are called Law Enforcement for a
> reason.
>
> Courts adjudicate conflicts using the law of the land (mainly civil or
> common)
>
> And at some stage (not reached yet in Sockpuppy's case) courts look at
> jurisdiction over the parties. If it has (having an office, doing
> business, ie having assets there) courts most certainly make orders.
> Which are easily enforced.
>
> Courts do not like to make orders which can't be enforced but the
> .IR/.SY/.KR case is different, not only because of this peculiar US law
> which establishes jurisdiction. The defendants don't have assets readily
> available for seizure so the plaintiffs have to "search" for them.
>
> As far as jurisdiction goes, there are some 250 countries and if I were
> to order them, the US would not be on top but still high on the list.
>
> I also don't understand why you keep bringing this up.
>
> el
>
> --
> Sent from Dr Lisse's iPad mini 4
>
> On 24 Jun 2016, at 17:55, parminder <parminder at itforchange.net
> <mailto:parminder at itforchange.net>> wrote:
>
>>
>> [...]
>
>> 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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>>>
>>>
>>>
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