[CCWG-ACCT] premature jurisdiction debates

Wed Jun 29 11:54:12 UTC 2016

May I please ask that the otiose but expected +1s be taken as read, and 
omitted?

The level of distraction on this list has now reached epic proportions.

On 29/06/16 12:46, George Sadowsky wrote:
> Phil,
>
> Thank you for this intervention.  I agree that this discussion is not
> productive, and I agree with Wolfgang that that this useless debate
> should be ended.
>
> George
>
>
>> On Jun 29, 2016, at 2:05 PM, Phil Corwin <psc at vlaw-dc.com
>> <mailto:psc at vlaw-dc.com>> wrote:
>>
>> With all respect, the reason that many of us regard this discussion as
>> nonproductive is that no compelling case has been made for embarking
>> on the path proposed, and no proper recognition has been made by the
>> proponent of the costs and difficulties involved.
>>
>> For example:
>> "There is accordingly no reason why we cannot have international law
>> that protects individual and business rights vis a vis a international
>> body (that ICANNshould become under international law).
>> To repeat, there is absolutely no problem with developing an
>> international treaty that writes international law, which will make
>> ICANN an international body,but with exactly the same governance and
>> other processes (multistakeholder) as exist at present, and also
>> provide means to ensure that individuals/ businessesinterests and
>> rights vis a vis ICANN are protected through a special court system
>> that is set up by the same treaty.
>>
>> So you are proposing, just for this one ICANN organization and its
>> very limited remit, spending an enormous amount of time and money (for
>> legal expertise, plus the value of the time of all those involved
>> stakeholders) to hammer out a new international treaty to implemented,
>> as well as the development of "international law" that is relevant to
>> all concerns that may arise for disputes within and involving ICANN.
>> Contract law, employment law, competition/antitrust law, etc., ad
>> infinitum. How long will all this take? Years, I would submit. And
>> from what more important issues will the ICANN community be distracted
>> while embarking on this herculean effort?
>>
>> And what would that law be? For example, for competition/antitrust as
>> it relates to domain industry pricing within the framework of
>> ICANN policies and contractual practices, shall it be the US approach,
>> the EU's, some other nation's, or some amalgamation of them? And how
>> long and at what expense shall that effort take? And from what source
>> is the authority of the authors of these "laws" derived; in democratic
>> nations legislators derive their authority by gathering majority
>> support of voters, but ICANN is not a nation-state.
>>
>> And, oh yes, we are also supposed to create "a special court system
>> that is set up by the same treaty" to decide disputes under this new
>> body of law created just for ICANN. How many jurists? What substantive
>> requirements, and evidentiary standards, and procedural rules? What
>> mechanism of appeal and to what body?
>>
>> I would submit that this whole proposed project is quite absurd,
>> especially given the lack of any convincing rationale to so many of us
>> that such a project is even required to address any foreseeable dispute.
>>
>>
>> *Philip S. Corwin, Founding Principal*
>>
>> *Virtualaw LLC*
>>
>> *1155 F Street, NW*
>>
>> *Suite 1050*
>>
>> *Washington, DC 20004*
>>
>> *202-559-8597/Direct*
>>
>> *202-559-8750/Fax*
>>
>> *202-255-6172/cell*
>>
>> **
>>
>> /*"Luck is the residue of design" -- Branch Rickey*/
>>
>>
>> ------------------------------------------------------------------------
>> *From:*accountability-cross-community-bounces at icann.org
>> <mailto:accountability-cross-community-bounces at icann.org>[accountability-cross-community-bounces at icann.org
>> <mailto:accountability-cross-community-bounces at icann.org>] on behalf
>> of parminder [parminder at itforchange.net
>> <mailto:parminder at itforchange.net>]
>> *Sent:*Wednesday, June 29, 2016 6:21 AM
>> *To:*Kleinwächter, Wolfgang; Alberto Soto; Paul
>> Rosenzweig;accountability-cross-community at icann.org
>> <mailto:accountability-cross-community at icann.org>
>> *Subject:*Re: [CCWG-ACCT] premature jurisdiction debates
>>
>> Hi Wolfgang
>>
>> I did not respond to your email earlier because I would not normally
>> respond to an email that begins by calling a discussion unnecessarily
>> repetitive, and ends by describing it as useless. However, since your
>> post has earned so many enthusiastic +1s, I fear it may seem to some
>> as a conclusive, unchallenged, argument against the case that I
>> presented about ICANN's jurisdiction. For that reason I need to
>> respond to it, as below.
>>
>> On Sunday 26 June 2016 02:54 PM, "Kleinwächter, Wolfgang" wrote:
>>> P:
>>> There is something called international law..... Like we are an international community working on an international issue, there is also international law.
>>>
>>> W:
>>> I am always perplexed that we have the same discussion again and again. The subject of international law is the state, represented by its government.
>>
>> If we are to work on solutions to the problems that we face, we need
>> to look towards directions of innovations where such solutions could
>> lie, not look to where they do not. I have been describing Investor
>> State Dispute Settlement systems being incorporated in most trade
>> treaties - which are inter/pluri-lateral instruments and law. The
>> subject here is the investor being afforded protection from state
>> policies. These are supposed to protect investor's rights, who are
>> legal persons and not states. There is accordingly no reason why we
>> cannot have international law that protects individual and business
>> rights vis a vis a international body (that ICANN should become under
>> international law).
>>
>> To repeat, there is absolutely no problem with developing an
>> international treaty that writes international law, which will make
>> ICANN an international body, but with exactly the same governance and
>> other processes (multistakeholder) as exist at present, and also
>> provide means to ensure that individuals/ businesses interests and
>> rights vis a vis ICANN are protected through a special court system
>> that is set up by the same treaty. (As the EU is proposing a new
>> international court system for Investor State Dispute Settlement).
>>
>> I am ready for a full-fledged discussion on this issue, on how such an
>> international law can indeed be created, or alternatively, why and how
>> it cannot be.
>>
>> Please tell me where you find gaps, and I will respond accordingly.
>> (the system would have space to incorporate international private law,
>> and if required ICANN and registries given choice for national
>> jurisdiction for contract related disputes - preferably it should be
>> the country of incorporation of the registry. However, there would be
>> complete immunity from any enforcement of public laws of the country -
>> US - where it is headquartered - other than the trivial routine stuff
>> which all host country agreements allow.)
>>
>>> Governments negotiate treaties. The primary source of international law is the Charter of the United Nations. The seven principles there - including sovereign equality of states - are seen as jus cogens. The rules for treaties are laid down in the the Vienna Convention on the Law of Treaties. Governments can delegate some rights - via an international treaty - to an intergovernmental organisation, as UNESCO, ITU and others.Such organizations become a subject sui generis under international law and can negotiate treaties with their host countries. Governments can also create international courts - as the International court of justice in The Hague or the Rome Statute. But in case of a conflict, the conflicting parties are governments, not private legal or natural persons.
>>
>> As mentioned, in the case of Investor State Disputes Settlement
>> bodies/ courts, one of the conflicting party is a legal person. We
>> need to look at where innovation is happening not at deep history alone.
>>> This is rather different from what we have with ICANN. ICANN is a non-for profit private corporations which operates n the public interest. In its Articles of Incorporation ICANN makes clear that in operates within the framework of international law. That means ICANN respect the national sovereignty of states, does not interfere into internal affairs of other countries etc. But ICANN is not a subject under international law. Governments participate in ICANN in an advisory role. The role is specified in the bylaws.
>>
>> ICANN is fully subject to US laws, and executive action. I had posed
>> two scenarios, pl respond to them. Can you say that the scenarios are
>> false, or ICANN will actually refuse to comply with US court or
>> legitimate executive order, or whether it would comply and change its
>> DNS policy/ action accordingly? It has to be one of these options.
>> Which one? Why no one commits on it?
>>
>>> If Parminder proposes an intergovernmental organizations for the governance of the Internet (or an intergovernmental framework convention for the domain name system) he should say so.
>>
>> What I propose I have said clearly . No, it is *not* an intergov
>> management of the DNS and other ICANN functions; it is keeping exactly
>> the same function and governance processes (multi-stakeholder) of
>> ICANN as now, but under international law and not US law.
>>>   Theoretically this is an option. Governments are free to negotiate anything as long as they find negotiation partners. It took 25 years to negotiate the 3rd Law of th Sea Convention. It took more than 20 years to negotiate the Rome Treaty. An the negotiations for a treaty on climate change started in the early 1990s. At this stage I do not see any intention of governments to enter into a new intergovernmental codification conference to negotiate an Internet treaty.
>>
>> These processes were trying to bring into being a new institutional
>> system. In the present case, we already have one, we just want to
>> change its covering/ incorporating law from US to international -
>> without changing the rest of institutional design. Should not take
>> long. And unlike what you say, non US gov do not agree with the
>> current US jurisdiction on ICANN. They did not during WSIS ten years
>> ago, they still do not.
>>
>>>
>>> BTW, individuals can start a case against private corporations if those corporations violate their rights they have in the country where they live.
>> They can start it, but with no effect whatsoever. ICANN would not even
>> appear as a respondent. Just try it. Facebook case below is different.
>> Unlike ICANN, FB has to maintained big business presence in France, as
>> in every big country, and thus a ruling over it can be enforced. ICANN
>> has no such constrains, and would not subject itself to any such
>> foreign court cases.
>>
>> parminder
>>
>>> The case Schrems vs. Facebook is a good example. Facebook is incorporated in the US but does business in Europe. The European Court of Justice decided that Facebook has to respect  the rights of privacy of Mr. Schrems, a citizen of Austria.
>>>
>>> Hope this helps to end this useless debate.
>>>
>>> Wolfgang
>
>
>
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