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<div class="moz-cite-prefix">On Wednesday 29 June 2016 04:35 PM,
Phil Corwin wrote:<br>
</div>
<blockquote
cite="mid:8E84A14FB84B8141B0E4713BAFF5B84E2107B510@Exchange.sierracorporation.com"
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<div style="direction: ltr;font-family: Tahoma;color:
#000000;font-size: 10pt;">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.
</div>
</blockquote>
<br>
As for "making a compelling case", Phil, you could not have failed
to notice that I have, repeatedly, provided some scenarios whereby
ICANN will "have to" change its DNS policies bec of US interference.
These scenarios have also been shown to be extremely likely. I asked
for responses to the scenarios I presented - "are they unlikely, if
so why and how?", and if true "do you accept ICANN changing its DNS
policy / practice under such jurisdictional interference as being
fine and acceptable?". None have responded. I have even suggested
referral of these scenarios to official legal advisers to this
process. Again no response. In the circumstances, I find your
summary judgement of "no compelling case is made" as hasty,
arbitrary, and with no substance.<br>
<br>
Then, about "recognition...of the costs and difficulties" involved:
The process of arriving at the "institutional architecture" that I
propose may need no more time nor more resources than the period we
have already spent in the current transition process. As for the
costs of the maintaining such an "institutional architecture", again
it would need to be no more that the current expenditure, especially
if we account for the costs of the most expensive legal system in
the world (the US) and innumerable court cases expected with the
100s of new gTLDs, and more coming soon. So, again, your summary
judgement is hasty, arbitrary, and without substance, which is to be
expected because it hurries to conclusions without getting into a
good discussion, with fair consideration of the other view. (And
you and others want to pay no attention to the "cost and
difficulties" of running a global governance system that submits to
the authority of one nation's jurisdiction.)<br>
<br>
The issue as I see it at this stage has gone beyond what
jurisdiction for ICANN is best. The main issue now is about the way
the discussion on this subject is being conducted. It is clear that
all views are welcome, as long as they stick to the ICANN
jurisdictional status quo (what they used to say about the color of
Ford cars!). Any view not conforming to this base condition will be
summarily and energetically thrown off, with repeated, impatient,
accusations of it being irrelevant, wasteful, unproductive, and so
on..... <br>
<br>
If the only productive argument in this discussion can be such that
proceeds from accepting the current jurisdictional status quo, and
makes no case to the contrary, one is unable to understand what
exactly is the 'jurisdictional' discussion in WG 2 supposed to be
about?<br>
<br>
I will request those responsible for holding this process together,
the Chairs, and others, to clarify this issue.<br>
<br>
Such early and strong impatience with any views that go beyond
jurisdictional status quo, plus the manner in which the key aspects
of the issue disappeared from the note on WG 2 that got circulated
recently, and from what I hear about various pronouncements of key
people at Helsinki, puts one in great doubt about the nature and
purpose of the so called 'jurisdictional issue' as an item of
discussion for WG 2. <br>
<br>
People here must remember, jurisdiction is the application of
political-legal power/ authority over ICANN's work. it is not an
internal issue for the so called ICANN community. it is most
certainly something that fully involves the larger global public.
The manner in which this topic is dealt by WG2 will be watched
closely as a judgement on ICANN's processes in the eyes of the
global public.<br>
<br>
parminder <br>
<br>
<br>
<blockquote
cite="mid:8E84A14FB84B8141B0E4713BAFF5B84E2107B510@Exchange.sierracorporation.com"
type="cite">
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#000000;font-size: 10pt;">
<div><br>
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<div>For example:</div>
<div><span class="Apple-tab-span" style="white-space:pre"></span>"<span
style="font-family: "Times New Roman"; font-size:
16px;">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 <span class="Apple-tab-span" style="white-space:pre"></span>should
become under international law). </span><br
style="font-family: "Times New Roman"; font-size:
16px;">
<span style="font-family: "Times New Roman";
font-size: 16px;"><span class="Apple-tab-span" style="white-space:pre"></span>To
repeat, there is absolutely no problem with developing an
international treaty that writes international law, which
will make ICANN an international body, <span class="Apple-tab-span" style="white-space:pre"></span>but
with exactly the same governance and other processes
(multistakeholder) as exist at present, and also provide
means to ensure that individuals/ businesses
<span class="Apple-tab-span" style="white-space:pre"></span>interests
and rights vis a vis ICANN are protected through a special
court system that is set up by the same treaty.</span></div>
<div><font face="Times New Roman"><span style="font-size: 16px;"><br>
</span></font></div>
<div><font face="Times New Roman"><span style="font-size: 16px;">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?</span></font></div>
<div><font face="Times New Roman"><span style="font-size: 16px;"><br>
</span></font></div>
<div><font face="Times New Roman"><span style="font-size: 16px;">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. </span></font></div>
<div><font face="Times New Roman"><span style="font-size: 16px;"><br>
</span></font></div>
<div><font face="Times New Roman"><span style="font-size: 16px;">And,
oh yes, we are also supposed to create "</span></font><span
style="font-family: "Times New Roman"; font-size:
16px;">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?</span></div>
<div><font face="Times New Roman"><span style="font-size: 16px;"><br>
</span></font></div>
<div><font face="Times New Roman"><span style="font-size: 16px;">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.</span></font></div>
<div><font face="Times New Roman"><span style="font-size: 16px;"><br>
</span></font></div>
<div><font face="Times New Roman"><span style="font-size: 16px;"><br>
</span></font>
<div>
<div style="font-family:Tahoma; font-size:13px">
<p><strong><font color="#000080">Philip S. Corwin,
Founding Principal</font></strong></p>
<p><strong><font color="#000080">Virtualaw LLC</font></strong></p>
<p><strong><font color="#000080">1155 F Street, NW</font></strong></p>
<p><strong><font color="#000080">Suite 1050</font></strong></p>
<p><strong><font color="#000080">Washington, DC 20004</font></strong></p>
<p><strong><font color="#000080">202-559-8597/Direct</font></strong></p>
<p><strong><font color="#000080">202-559-8750/Fax</font></strong></p>
<p><strong><font color="#000080">202-255-6172/cell</font></strong></p>
<p><strong></strong> </p>
<p><em><strong><font color="#000080">"Luck is the residue
of design" -- Branch Rickey</font></strong></em></p>
<p> </p>
</div>
</div>
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font-size: 16px">
<hr tabindex="-1">
<div id="divRpF582320" style="direction: ltr;"><font
size="2" color="#000000" face="Tahoma"><b>From:</b>
<a class="moz-txt-link-abbreviated" href="mailto:accountability-cross-community-bounces@icann.org">accountability-cross-community-bounces@icann.org</a>
[<a class="moz-txt-link-abbreviated" href="mailto:accountability-cross-community-bounces@icann.org">accountability-cross-community-bounces@icann.org</a>] on
behalf of parminder [<a class="moz-txt-link-abbreviated" href="mailto:parminder@itforchange.net">parminder@itforchange.net</a>]<br>
<b>Sent:</b> Wednesday, June 29, 2016 6:21 AM<br>
<b>To:</b> Kleinwächter, Wolfgang; Alberto Soto; Paul
Rosenzweig; <a class="moz-txt-link-abbreviated" href="mailto:accountability-cross-community@icann.org">accountability-cross-community@icann.org</a><br>
<b>Subject:</b> Re: [CCWG-ACCT] premature jurisdiction
debates<br>
</font><br>
</div>
<div><font face="Verdana">Hi Wolfgang<br>
<br>
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.
<br>
</font><br>
<div class="moz-cite-prefix">On Sunday 26 June 2016 02:54
PM, "Kleinwächter, Wolfgang" wrote:<br>
</div>
<blockquote type="cite">
<pre>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. </pre>
</blockquote>
<br>
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).
<br>
<br>
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). <br>
<br>
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.
<br>
<br>
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.)<br>
<br>
<blockquote type="cite">
<pre>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. </pre>
</blockquote>
<br>
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.
<br>
<blockquote type="cite">
<pre>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. </pre>
</blockquote>
<br>
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?<br>
<br>
<blockquote type="cite">
<pre>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.</pre>
</blockquote>
<br>
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.
<br>
<blockquote type="cite">
<pre> 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. </pre>
</blockquote>
<br>
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.
<br>
<br>
<blockquote type="cite">
<pre>
BTW, individuals can start a case against private corporations if those corporations violate their rights they have in the country where they live.</pre>
</blockquote>
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.<br>
<br>
parminder <br>
<br>
<blockquote type="cite">
<pre>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
</pre>
</blockquote>
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