[CWG-RFP3] Is there is a more suitable legal jurisdiction for an IANA subsidiary?

Tue Nov 4 21:07:44 UTC 2014

We should be precise about the language we use here.

Generally, a formal “international organization” is something like the Red Cross/Red Crescent, which enjoys legal immunity from the country in which it is incorporated.  That legal immunity, IMHO, eliminates meaningful accountability for the organization’s actions and is not appropriate here.

In all other cases, applicable law is going to be determined by a combination of factors, including the country of incorporation, the country of contracting parties, contractual provisions about choice of law, etc.  Right now ICANN contracts all state that California law governs.  That is not unusual at all.  ICANN could agree that some contracts are subject to California law, and some contracts are subject, for example, to Swiss law.  What it won’t want to say – and I think this is reasonable – is that the choice of law turns entirely on the other contracting party (e.g., German law applies to agreements with .Berlin; New York law applies to agreements with .NYC; Ontario law applies to contracts with .ECO, and Vatican law applies to agreements with the Pontifical Council, etc., etc.)

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From: Jordan Carter <jordan at internetnz.net.nz<mailto:jordan at internetnz.net.nz>>
Date: Tuesday, November 4, 2014 at 3:08 PM
To: Carolina Aguerre <carolina at lactld.org<mailto:carolina at lactld.org>>
Cc: RFP3 <cwg-rfp3 at icann.org<mailto:cwg-rfp3 at icann.org>>
Subject: Re: [CWG-RFP3] Is there is a more suitable legal jurisdiction for an IANA subsidiary?

Hi Carolina,

I think this is a great question - and I would warmly encourage any qualified lawyers to offer some views about both those questions and the broader matters of California law for non-profits.

Is anyone on this list able to contribute analysis of this sort? I am not a lawyer and so can't do so.

best
Jordan

On 5 November 2014 02:53, Carolina Aguerre <carolina at lactld.org<mailto:carolina at lactld.org>> wrote:
Hi Jordan, All,
While I tend to agree that it would not be a good idea to separate the jurisdictions of ICANN and IANA, I would like to have evidence-based arguments in favour of a California -based jurisdiction. I am not a lawyer, nor an expert in international legislation, but I would like to know:
a) What are the specific safeguards that California provides with respect to other States in the US for an international non-profit such as ICANN?
b) Are there specific benefits in having an international non-profit organization based under a regime within a Federal system - with its own state judiciaries, rather than a united national jurisdiction?

I think that it is precisely by pointing at evidence and facts that the whole issue around the ICANN - IANA jurisdiction might become less politicized.
Thanks.
Best regards,
Carolina

On 04/11/2014 06:15 a.m., Jordan Carter wrote:
All:

My view *at this stage* is that there are clear advantages to California jurisdiction that other less transparent regimes would find hard to match. If there was to be an IANA subsidiary company wholly owned by ICANN (a viable option), then it would make sense for it to be in the same jurisdiction.

I don't want to see ICANN or IANA pretending to become IGOs and retreating to the secrecy of Swiss law or anything like that, personally.

That said, I am aware of many criticisms of how ICANN has used the "California law" card as a way to get out of things. The truth of those is beyond my experience, but I wonder how often the courts of California have decided those issues, rather than assertions by ICANN legal?  My suspicion is the courts haven't played much of a role - or in other words, that it may not be the California jurisdiction that's the problem so much as how it is being interpreted...

best,
Jordan

On 4 November 2014 05:33, Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>> wrote:
All:

Here is Robert's second question (which I think also applies to the concept of a fully independent IANA):

For  option #2.

- Is there is a  jurisdiction that ICANN has (or can obtain) legal status might be more suitable to use to create IANA as a subsidiary. Such an option might allow for the link to be a subsidiary of ICANN, but sever the legal link to the US. A negative, of course, would be moving the function and existing staff to a new part of the world.

Comments and discussion?

Greg

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