[CCWG-ACCT] premature jurisdiction debates
parminder
parminder at itforchange.net
Sun Jun 26 06:24:44 UTC 2016
On Saturday 25 June 2016 09:55 PM, Alberto Soto wrote:
>
> What would result if this text, replacing US law by: Italian laws? or
> Belgium laws? Or …laws?
>
There is something called international law..... Like we are an
international community working on an international issue, there is also
international law.
best, parminder
>
>
>
> 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-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
>
> 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>
> <mailto: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/
>
>
>
> *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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