[CCWG-ACCT] premature jurisdiction debates
parminder
parminder at itforchange.net
Sat Jun 25 10:55:42 UTC 2016
On Saturday 25 June 2016 01:40 AM, Paul Rosenzweig 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.” (Parminder)
>
>
>
> 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.
>
The main job of US courts is to apply US law. US private law would
maintain that if two parties enter into a contract, they must observe
the condition of the contract, as far as it is lawful (per the US law)
and within the overall prior application of public law to their
relationship. Now, it is possible that foreign laws may be sub parts of
that contractual arrangement, but any such thing is highly subordinate
to the application of relevant US laws, its public laws as well as laws
and canons of fairness, process etc vis a vis private law. I am not a
lawyer, and I can see that you are. But even for me, the hierarchy and
the clear distinction are evident as just political common sense. It is
completely wrong to suggest that depending on what the parties may have
pre-decided foreign laws could take precedence over US laws in the mind
and acts of a US court.
> So the basic answer is that the courts adjudicate the laws as directed
> … by statute or by the parties.
>
Public law of the US would apply as a prior category to any issue.
> 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.
>
As elements of a contract between the two parties - which can in any
case be written by the two party as they wish - *as long as it is
consistent and within the US law*, right. And as said, US public law
fully applies. Can ICANN and a registry put in its contract that Indian
intellectual property law will apply to the elements and objects of
their contract and not US? Of course not.
>
>
>
> 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.
>
See my IP law example. Can ICANN, together with the contracting
registry, decide to immune itself and a gTLD from US Intellectual
property law ? Most DNS interferences in the US take place because of IP
related motivations. It will be great if such a thing can be done. ICANN
must really look into it, and choose a developing country IP
jurisdiction for all its contracts, and thus gTLDs, which jurisdictions
are the lightest and least obtrusive IP wise.
Your arguments continue to only think of private law, and I think even
in that area they do not hold. But do realise that most current gTLD/
ccTLD disputes in the US are under public law -- .xxx under competition
law and .ir under terrorism related laws. Are you saying that at the
stage of the contract ICANN could have immunised itself from these US
laws by choosing some other country’s laws as applicable to the
particular contracts and their subject, the gTLD or ccTLD?
parminder
>
>
> Paul
>
>
>
> Paul
>
>
>
> Paul Rosenzweig
>
> paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>
>
> O: +1 (202) 547-0660
>
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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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