[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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