[CCWG-ACCT] premature jurisdiction debates

[parminder]

On Thursday 23 June 2016 10:25 AM, Nigel Roberts wrote:
> They don't have contempt of court laws in the US anymore?

I happy to explain if the prospect of that kind of thing is your only,
or the major, issue with my proposal. But before that, we need some more
consistency in the arguments here on each side. One hears implications
that somehow the US State - its three branches, including the courts -
will somehow perhaps be very mindful in applying/ enforcing even the
normal full range of 'hard' and necessary laws on ICANN. And then there
is now this argument now that courts may even use that seldom employed
and rather discretionary powers of bringing up contempt of court. Just
pointing that the two arguments go against one another. 

Meanwhile, on the substantial point. No I dont see a court using the
contempt proceedings if ICANN is established as a bifocal organisation,
simultaneously registered in two jurisdictions, with the US one being
the preferred first instant, till some criteria of 'policy interference'
(we will name it more nicely and less offensively to the US
jurisdiction) get met requiring it to change its policies in a manner
not admissible under its bylaws, whereby it immediately and
automatically shifts its second jurisdiction. The act of shifting itself
can come, meaning decided, from outside the US.... I am sure this can be
worked out.

So, I see 3 options

(1) US unilaterally forbears application of its jurisdiction over ICANN,
through a domestic law. A kind of arrangement that Switzerland has with
the Red Cross, but more contextual.

(2) A backup jurisdiction system in another country, as a part of the
bylaws, which kicks in as soon as 'policy interference' criteria are met.

(3) Incorporation under international law, based on a new treaty that
fully preserves current ICANN function and processes.

I prefer the last option because it can bring in elements of much needed
external judicial oversight through a treaty based new court system
(taking ICJ's help of otherwise) and ensure compliance to international
law in various areas - trade, health, education, IP, etc, as Internet
becomes an important infrastructure of all social systems.

But other options could also be considered.

parminder

>
>
> On 23/06/16 05:33, parminder wrote:
>> On Thursday 23 June 2016 12:44 AM, Mueller, Milton L wrote:
>>>
>>> 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.THe
>>> 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.
>>>
>>
>> One proposal that I made recently to the ISOC and Just Net Coalition
>> lists was precisely to have a clear statement of and criteria for 'undue
>> interference' from US gov/ state in ICANN's policy making remit defined
>> and inserted in ICANN bylaws. The moment the conditions of these
>> criteria are met, first a process of change of physical location and
>> therefore jurisdiction of the authoritative root file sets in. For this
>> a backup physical as well legal (PTI) system would already be ready in
>> another country (in my argument, I used the possibility of Singapore,
>> since it has an existing ICANN office) and when the criteria are deemed
>> to have been met, a switch over to the backup system gets made right
>> away... There of course would be significant technical and legal issues
>> to be taken care of for keeping the backup ready to be switched on with
>> minimum disruption, but that is what is required to be done. This system
>> should technically and legally be already in place, and fully tested for
>> a switch over.
>>
>> The biggest advantage of such a backup is that, like any good check and
>> balance system, it is extremely (repeat, extremly) unlikely to ever need
>> to get kicked in. It simply acts as a deterrent. For instance, any court
>> (or other US state agency) taking cognizance of an issue whose judicial
>> resolution implicates ICANN global policy remit would be made aware of
>> the fact of this 'backup' system and ICANN's obligation to take resort
>> to it, the moment any decision of the US state causes incursion on ICANN
>> global policy authority. The chances are, the relevant court, or any
>> other US state agency, will take the hint.
>>
>> Yes, the US state can force the ICANN board to not take the backup route
>> but that problem, it faced, too can be solved by an automatic shift to a
>> back ICANN already registered, say in Singapore, which automatically
>> takes up the ICANN policy authority (and thus becomes the real ICANN)
>> the moment the said criteria are met. The same ICANN board now meets in
>> Singapore as and under the Singapore registered ICANN legal entity, and
>> things take on from there... (And with the shift, say to Singapore,
>> another backup in another country gets made ready.......)
>>
>> The proposal was extensively presented to the ISOC list last month.
>> There may be more elements that I missed stating above, leaving some
>> gaps. Rushing out for a meeting... Will add later on..... parminder
>>
>>
>>
>>
>>> Dr. Milton L. Mueller
>>>
>>> Professor, School of Public Policy
>>>
>>> Georgia Institute of Technology
>>>
>>>
>>>
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>>
>>
>>
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