[CCWG-ACCT] premature jurisdiction debates
parminder
parminder at itforchange.net
Sat Jun 25 15:03:38 UTC 2016
On Saturday 25 June 2016 07:36 PM, Paul Rosenzweig wrote:
>
> Sorry Parminder, but this is just not accurate. If I enter into a
> contract that says “Indian intellectual property law will apply to the
> elements and objects of their contract and not US?” the US courts will
> apply Indian law.
>
Thanks Paul. This is very interesting.
Let me see if we are speaking about the same thing. Do you mean that
(1) Rojadirecta, is a Spanish sports video streaming service, whose
business model was found perfectly legitimate by Spanish courts but
whose website was seized by the US Homeland Security's Immigration and
Customs Enforcement (ICE) division
<https://www.techdirt.com/articles/20110201/10252412910/homeland-security-seizes-spanish-domain-name-that-had-already-been-declared-legal.shtml>
on copyright violation grounds. Now, lets say rojadirecta applies to
ICANN for a closed or private use gTLD .rojadirecta, can ICANN and
rojadirecta agree that Spanish copyrights law alone will apply to this
new gTLD, and not US laws, which after all makes sense bec rojadirecta
is a Spanish company with its primary business there? And if they do so
agree and put in the contract, the mentioned US agency will not be able
to seize the gTLD citing US copyrights law violation, and if they do
seize it, US courts will reverse the decision on the grounds that US IP
law does not apply to the gTLD? I very much doubt it could that way, but
extremely interested to hear your professional views on this.
(2) Similarly, if .ir ccTLD holders had put in a contract with ICANN
that on .ir only Iranian laws, of this and this kind, will apply, and
not US law, we would not even have the current litigation around .ir
that we have? (Then certainly all ccTLDs should get ICANN to make such a
contract with them!)
>
>
> Maybe it is different in India, where I guess you are a lawyer – but
> not here in the US.
>
Oh no, I am no lawyer, as I said in my last email. In fact I have no
kind of legal training at all.
parminder
>
>
>
> Paul
>
>
>
> Paul Rosenzweig
>
> paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>
>
> O: +1 (202) 547-0660
>
> M: +1 (202) 329-9650
>
> VOIP: +1 (202) 738-1739
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> www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
>
> My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ __
>
>
>
> *From:*parminder [mailto:parminder at itforchange.net]
> *Sent:* Saturday, June 25, 2016 6:56 AM
> *To:* Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com>;
> accountability-cross-community at icann.org
> *Subject:* Re: [CCWG-ACCT] premature jurisdiction debates
>
>
>
>
>
> 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
>
> M: +1 (202) 329-9650
>
> VOIP: +1 (202) 738-1739
>
> www.redbranchconsulting.com <http://www.redbranchconsulting.com>
>
> My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/
>
>
>
> *From:*accountability-cross-community-bounces at icann.org
> <mailto: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
> <mailto: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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