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<div class="moz-cite-prefix">On Sunday 26 June 2016 06:08 PM,
parminder wrote:<br>
</div>
<blockquote cite="mid:576FCCD1.8050109@itforchange.net" type="cite">
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<font face="Verdana">Jordan<br>
<br>
You construct law as something fully technical when it actually
is basically political, that is the major difference between
your approach and mine. What is the fact can however been seen
in actual implications. Even the laws of incorporation that
enables a non profit to organise and operate (for which there
are admittedly little inter-jurisdiction differences) still mean
that any incorporated organisation is full subject to every one
of the thousands of public laws, about whom there are never any
options. As you can see, most key domain name cases that ICANN
is involved in pertain to public laws, and I have been making
elaborate comments on that part. I asked a few questions to
Nigel, very specific ones which would clarify the implications
of the jurisdiction issue. Neither he or anyone else seems to be
willing to respond to them. Maybe you can try. The implications
of the jursidiction question wil come through very clearly...<br>
</font></blockquote>
<br>
Sorry, forgot to re state the questions. This also goes with the
approach proposed by Pedro that we look first at scenarios and their
implications on ICANN substantive policy remits. <br>
<br>
(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. <br>
<br>
(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.<br>
<br>
Responses to these scenarios and their stated implications will be
appreciated.. parminder <br>
<blockquote cite="mid:576FCCD1.8050109@itforchange.net" type="cite"><font
face="Verdana"> <br>
best, parminder <br>
</font><br>
<div class="moz-cite-prefix">On Sunday 26 June 2016 04:31 PM,
Jordan Carter wrote:<br>
</div>
<blockquote
cite="mid:CAEO10ggHQo=6f6gtFKChyUMmXG=zwfp8ghukCwYbFA-2NG3vQw@mail.gmail.com"
type="cite">
<div dir="ltr">Par minder,
<div><br>
</div>
<div>I see a distinction which you may not, but it might help
clarify the points at debate.</div>
<div><br>
</div>
<div>I see two layers here, for want of a better term. One is
the actual work of ICANN's policy making, contract
development and so on. That's being done in a fashion
supported by a corporation (ICANN the legal entity).</div>
<div><br>
</div>
<div>The legal environment in which ICANN the corporation
exists is California, USA.</div>
<div><br>
</div>
<div>The first, the set of activities that ICANN actually
does, are location agnostic. They could happen anywhere, in
any jurisdiction. As long as that jurisdiction allowed the
legal entity to organise itself as it saw fit, more or less,
it'd be fine.</div>
<div><br>
</div>
<div>The second, the legal environment, has to be somewhere. I
take it from Wolfgang's comments and my own understanding,
and actually from this email from you, that there's no
"International Law" environment that could take the place of
a national jurisdiction in which ICANN could base itself,
unless such an international legal basis was created.</div>
<div><br>
</div>
<div>For me, personally, the important point is that ICANN
related decisions are made within the ICANN system. I am not
fussed about the jurisdiction in which the corporation
exists as a practical matter so long as that overall point
is maintained.</div>
<div><br>
</div>
<div>Since it would take years or decades to establish an
international law basis under which ICANN could operate,
even if it was at all possible, there needs to be *some*
jurisdiction used. </div>
<div><br>
</div>
<div>California seems fit for purpose in the sense that it has
been able to accommodate the WS1 and Stewardship Transition
frameworks agreed by the community. The costs of doing all
that again to move jurisdiction should, I think, only be
entertained if there other currently undisclosed problems
with CA, and benefits in another jurisdiction, that outweigh
the costs of change.</div>
<div><br>
</div>
<div>It's not clear to me that there are such advantages
available anywhere given the flexibility of the CA
framework. Doesn't mean they don't exist tho, just that I
don't see them :-)</div>
<div><br>
</div>
<div>If this is a matter of politics per se, then I guess I
just don't identify with that as significant. ICANN could be
incorporated as a non profit in New Zealand, or India, or
the United States -- I really don't mind. As long as the
rule of law was clear, the courts were available and
competent, and the rules allowed the organisation to be what
it needs to be -- why does the particular nationality of the
entity in its legal reality matter?</div>
<div><br>
</div>
<div>best</div>
<div>Jordan</div>
<div><br>
</div>
<div>I think the following points are uncontroversial</div>
</div>
<div class="gmail_extra"><br>
<div class="gmail_quote">On 26 June 2016 at 12:16, parminder <span
dir="ltr"><<a moz-do-not-send="true"
href="mailto:parminder@itforchange.net" target="_blank">parminder@itforchange.net</a>></span>
wrote:<br>
<blockquote class="gmail_quote" style="margin:0 0 0
.8ex;border-left:1px #ccc solid;padding-left:1ex">
<div text="#000000" bgcolor="#FFFFFF"><span class=""> <br>
<br>
<div>On Sunday 26 June 2016 03:27 PM, Phil Corwin
wrote:<br>
</div>
<blockquote type="cite">
<div
style="line-height:initial;background-color:rgb(255,255,255)">
<div name="x_BB10" dir="auto"> There is no
international corporate law. Therefore there is
no means by which ICANN can be organized as a
non-profit entity under international law but
for a treaty arrangement such as that for the
Red Cross. </div>
</div>
</blockquote>
<br>
</span> Yes, it will be incorporated under special
international law created for that purpose.<span
class=""><br>
<br>
<blockquote type="cite">
<div
style="line-height:initial;background-color:rgb(255,255,255)">
<div name="x_BB10" dir="auto">How long would that
take,</div>
</div>
</blockquote>
<br>
</span> First we have to just decide to do it (that is
all to be done at this stage - which can be done within
weeks or a few months of discussion), then let it take
the needed time as long as everyone is working in good
faith... It can even be done in 6-12 months, a simple
basic text that incorporates existing ICANN functions
and processes. There is a clear incentive for those who
wants things changed vis a vis US jurisdiction to go
through the process fast, and for those preferring the
status quo to keep the text short and as far as possible
making an exact replica of present ICANN at the
international level. Once we agree on these principles,
things can move really fast. In the interim, of course
the status quo of US jurisdiction remains, and so there
is no loss.<br>
<br>
<blockquote type="cite">
<div
style="line-height:initial;background-color:rgb(255,255,255)">
<div name="x_BB10" dir="auto"> what would that cost,</div>
</div>
</blockquote>
<br>
what kind of costs?<span class=""><br>
<br>
<blockquote type="cite">
<div
style="line-height:initial;background-color:rgb(255,255,255)">
<div name="x_BB10" dir="auto"> and what is the
justification?</div>
</div>
</blockquote>
<br>
</span> This brings us to the square one of this
discussion, while I thought you/ we were moving forward.
The simplest statement of the justification is: a global
Internet cannot be run by US law [no legislation (or
adjudication) without representation]. For implications
of this justification, you may try to answer the
questions that I just asked Nigel (and had earlier also
asked you).<span class="HOEnZb"><font color="#888888"><br>
<br>
parminder <br>
</font></span>
<div>
<div class="h5">
<blockquote type="cite">
<div
style="line-height:initial;background-color:rgb(255,255,255)">
<div name="x_BB10" dir="auto"> <br
style="display:initial">
</div>
<div name="x_BB10" dir="auto">
<div name="x_BB10" dir="auto"> Philip S.
Corwin, Founding Principal<br>
Virtualaw LLC<br>
1155 F Street, NW<br>
Suite 1050<br>
Washington, DC 20004<br>
202-559-8597/Direct<br>
202-559-8750/Fax<br>
202-255-6172/Cell<br>
<br>
Twitter: @VlawDC<br>
<br>
"Luck is the residue of design." -- Branch
Rickey</div>
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<div><b>From:</b><a
moz-do-not-send="true"
class="moz-txt-link-abbreviated"
href="mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de"><a class="moz-txt-link-abbreviated" href="mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de">wolfgang.kleinwaechter@medienkomm.uni-halle.de</a></a></div>
<div><b>Sent:</b>June 26, 2016 12:27
PM</div>
<div><b>To:</b><a
moz-do-not-send="true"
class="moz-txt-link-abbreviated"
href="mailto:parminder@itforchange.net"><a class="moz-txt-link-abbreviated" href="mailto:parminder@itforchange.net">parminder@itforchange.net</a></a>; <a
moz-do-not-send="true"
href="mailto:asoto@ibero-americano.org"
target="_blank"><a class="moz-txt-link-abbreviated" href="mailto:asoto@ibero-americano.org">asoto@ibero-americano.org</a></a>;
<a moz-do-not-send="true"
href="mailto:paul.rosenzweig@redbranchconsulting.com"
target="_blank">paul.rosenzweig@redbranchconsulting.com</a>;
<a moz-do-not-send="true"
href="mailto:accountability-cross-community@icann.org"
target="_blank">accountability-cross-community@icann.org</a></div>
<div><b>Subject:</b>Re: [CCWG-ACCT]
premature jurisdiction debates</div>
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<font size="2"><span style="font-size:10pt">
<div>P:<br>
There is something called international
law..... Like we are an international
community working on an international issue,
there is also international law.<br>
<br>
W:<br>
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. 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. <br>
<br>
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. <br>
<br>
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. 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. <br>
<br>
BTW, individuals can start a case against
private corporations if those corporations
violate their rights they have in the
country where they live. 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. <br>
<br>
Hope this helps to end this useless debate.
<br>
<br>
Wolfgang<br>
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<br>
<br clear="all">
<div><br>
</div>
-- <br>
<div class="gmail_signature" data-smartmail="gmail_signature">Jordan
Carter
<div>Wellington, New Zealand</div>
<div><br>
</div>
<div>+64 21 442 649 </div>
<div><a moz-do-not-send="true"
href="mailto:jordan@jordancarter.org.nz" target="_blank">jordan@jordancarter.org.nz</a></div>
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