[CCWG-ACCT] premature jurisdiction debates

[parminder]

On Sunday 26 June 2016 01:57 PM, Nigel Roberts wrote:
> And is generally declaratory in nature.

Generally, but not always. Look at the investor-to-state dispute
settlements system, which provides enforceable means to protect
investors' (individual legal entities and not states) rights. EU
recently proposed a new Investment Court System
<http://europa.eu/rapid/press-release_IP-15-5651_en.htm> for two trade
treaties that it is involved in. The same proposal also seeks movement
towards an International Investment Court in the future. Note both that
this is not declaratory but enforceable international law, and that it
involves the rights and claims of individual entities and not states.

No reason why a similar treaty based court cannot be established for DNS
related disputes, issuing enforceable judgements.

Internet is primarily global, not becuase of a technical necessity but
as a collective value (on the other hand, trade and investment, the
subject of about international enforcible law, are only secondarily
international). We chose Internet to be global. We could have, and still
can, make it national state based. Every country gets a ccTLD, and all
domains names are on them, and necessarily have a .in, .us, .de, etc at
the end. Like every geographical addresses ends in a country name.

There will be no global level domain name policy left to be dealt with
in that case. But we did not do it, becuase we value a 'primarily
global' Internet. But to have one, in a legitimate way, we need to be
ready to make the necessary innovations in global/international law as
well. We cannot have a global Internet without effective
global/international law. Basically, we cannot have have a global
Internet run by US laws. Period.
> There is if course international private law but ICANN already operates under that.
>
> And international criminal law. Which is irrelevant to us.
>
> Par minder, you may have seen how I challenged another lawyer on this list when he made an unjustified assumption recently.
>
> We say: "what is your authority for that proposition?"
>
> It's what a judge might say.
>
> It means "tell me the rule of law on which you rely "
>
> If as non lawyer you want to join in .. And lawyers do welcome rational submission ..
>
> You should nonetheless expect to be asked this question a LOT.

As I have done above, always happy to answer all questions. Meanwhile,
in good lawyerly tradition :) , why you too also not answer some of my
questions that are key to framing this debate. Like

(1) What is ICANN's plan to do if it gets adverse US court judgements in
.xxx and .africa cases (even  .ir is still in the courts)? Is there no
plan at all, which would be absolutely inappropriate for a responsible
organisation. Is the plan to just accept the judgements, and make
necessary policy/ operational changes? If so, the world needs to know
NOW, when jurisdiction is being discussed, and not realise later when
the event happens, the enormity of US courts dictating global DNS
policy. To repeat, ICANN must right away put forward its plan and
position in this regard, which is an absolutely important, actually
necessary, thing to know for those discussing the jurisdiction question
as part of work stream 2.

(2) These above are existing cases, now with 100s of new gTLDs issued to
every kind of organisation and for every kind of activity, you are going
to get so many more cases in the US courts of the above kind. What do
you plan vis a vis them? Also, please see the hypothetical case in my
last email, if rojadirecta takes .rojadirecta as a closed gTLD, and
after some time, as they did once earlier through its US based registry,
US authorities want to seize the .rojadirecta, which can now only be
done at the root file level, and for that sends a order to ICANN, what
would ICANN do? Again, necessary to know while we are in middle of
jurisdiction decision.

If ICANN officially (highly preferred), or otherwise at least the
lawyers here involved on the 'keep US jurisdiction' side of the
discussion, can respond to these questions, it would form a good basis
to move forward.

 I am sure lawyers will also oblige the non lawyers, as I answered your
questions promptly :)

parminder

>
> Sent from my iPhone
>
>> On 26 Jun 2016, at 10:00, Dr Eberhard W Lisse <el at lisse.NA> wrote:
>>
>> Unless I am mistaken, International Law regulates relations between
>> states and nations and requires treaties between such
>> states/nations.
>>
>> el
>>
>>> On 2016-06-26 07:24 , parminder wrote:
>>>
>>>
>>>> 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
>> [...]
>>
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