[CCWG-ACCT] Fwd: ICANN's US jurisdiction

Norman Caldera ncaldera at estudiocaldera.com
Tue Nov 15 15:56:42 UTC 2016

This is in support of Avri Doria's recent intervention. Although I am in
full support of the status quo, I believe that putting our heads in the
sand and ignoring dissent (specially if they keep coming back), will not
help to bring cloture.

1. To those who are annoyed that a subject that is "settled" somehow keeps
coming back, I say, there may be a reason for the issue to come back, and
we may want to look into those "reasons" to difuse them before they grow
into "issues.".

2. It is no wonder that France was the first G-8 country to question
ICANN's jurisdiction after the debate on DOT Vin in one of the British
Isles 2012 or 2013.ICANN meetings There were reacting not only to the gTLD
allocation itself, seeking a "source of law issue" but to dispute
settlement mechanisms which heretofore gave great prominence to the
International Chamber of Commerce's dispute resolution body. They may feel
displaced by WIPO, which is a UN Organization with all the shortcomings
associated with the one country, one vote modus operandum..

3. Under common law, as well as under Customary International Law, it is
easy to undertand and accept the present ICANN status. However Civil Law
countries have difficulties undertanding and applying what they consider a
"de facto" and not "de jure" status.

4. I am mentioning this only for the record, not because I spouse a
solution like it, but for the sake of illustration. The discrepancy between
Customary International Law and Written Code has been adressed through the
United Nations Comission that Codifies International Law. The UN Convention
on the law of the seas, for example, was written based on International
Law, mandatory under "Erga Omnes".

5. Lawyers from Texas and Louisiana could be best suited to look at this
problem from the clash of "Sources of Law" perspective and suggest issues
for discussion and resolution in this group before they surface again under
Indian, Chinese, Japanese or African legal systems. It will help all of us
to be better prepared to defend our clients' interest.

6. I am even more worried, under present arrangements, to see Ms Olga
Cavalli presiding over what ammounts to a GAC re-interpretation of
international law on Intellectual Property regarding the relationship
between Geographic signs and Trademarks (as they relate to Domain Names).
The discussion does not belong to the GAC; which should be declared "Forum
non conveniens". ie. Not the venue to air those issues..

7. For that reason, I fully support Colin's effort (I call it White Paper)
summarizing the role of INTA in support of our clients and the public
interest offering our support to explain the role of IP under international
law. A spanish translation (not official) has been sent with the original
to all the Registrar's in Central America and to the SIECA Secretariat.
Copy of the translation will be carried/delivered to the chair of the
internet committee in Hollywood.


2016-11-14 16:18 GMT-06:00 avri doria <avri at acm.org>:

> Not sure where this conversation is being held.
> This is a comment on the subject that I sent to the Jurisdiction list
> (with typos corrected)
> -------- Forwarded Message --------
> Subject:        Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction
> Document
> Date:   Sun, 13 Nov 2016 21:10:38 +0900
> From:   avri doria <avri at acm.org>
> Reply-To:       avri at acm.org
> To:     ws2-jurisdiction at icann.org
> Hi,
> As a part time staff member for APC, which signed the letter, I figure I
> should add my 2 cents.
> I do not believe the object is to undo the work of WS1 and the
> establishment of the EC under California rules. That is not an APC goal
> and I do not think the letter proposes that.  But I do believe we need
> to look at some of the other issues.
> For example the one that persists to bother me and APC, is the fact
> that the US can make laws that prohibit ICANN/IANA from doing business
> with particular countries, whether it is because of boycott or other
> international reasons.  I know we say that has never happened, though
> there may be some arguments about whether it did or not, but it could
> happen. Another issue is that given the removal of US oversight, the US
> government commitment made in WSIS and elsewhere to never interfere in
> IANA relationship with ccTLDs is meaningless. Does this commitment
> still hold in the current jurisdictional mix if the US government passed
> laws or made administrative decisions? These are the sorts of
> things I think we need to find a answer/solution to.  So when I look at
> the notion of 'immunity' that is the sort I look for.   Not that I
> believe this can be easily achieved. Personally, I do not want to see
> IANA (the core of the issue and the Internet) prohibited from making a
> change because of US law, now or ever.
> I do not believe we can, or even should resolve this in WS2, but we
> should be aware of these problems and WS2 should recommend that further
> work after WS2, perhaps, be done to make sure that  these and another
> types of errant US control are not possible.  I am personally not
> looking for relief from the courts on contractual, accountability or EC
> issues as that is currently part of the accountability solution, and we
> have yet to see whether that works. It is going to take a few years
> before we have evidence on the WS1 solution being effective.  But I
> wonder, must that always be US courts, are there other solutions for
> some of these court challenges, especially those more applicable to the
> nationals of other nations. I think there are issues we can't ignore.
> So collecting the issues and figuring out what further
> discussion/work needs to be done on them is something that needs to be
> remembered and dealt with in WS2. Hence my agreement with the fact that
> a letter was sent indicating that there were concerns that need to be
> discussed and dealt with. The solution proposed in the letter where just
> possible avenues to explore, and even if they are impractical, we should
> not ignore any open issues that people might have.
> avri
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