[CCWG-ACCT] premature jurisdiction debates

Sat Jun 25 16:25:45 UTC 2016

What would result if this text, replacing US law by: Italian laws? or
Belgium laws? Or      
laws?

Kind regards

Alberto Soto

De: accountability-cross-community-bounces at icann.org
[mailto:accountability-cross-community-bounces at icann.org] En nombre de
parminder
Enviado el: sábado, 25 de junio de 2016 12:04 p.m.
Para: Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com>;
accountability-cross-community at icann.org
Asunto: Re: [CCWG-ACCT] premature jurisdiction debates

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-se
izes-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

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From: parminder [mailto:parminder at itforchange.net] 
Sent: Saturday, June 25, 2016 6:56 AM
To: Paul Rosenzweig  <mailto:paul.rosenzweig at redbranchconsulting.com>
<paul.rosenzweig at redbranchconsulting.com>;
accountability-cross-community at icann.org
<mailto: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/>
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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