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

Thu Nov 6 19:43:45 UTC 2014

I wanted to briefly come back to question (b) in Carolina's email of Nov.
4, because I think it is based on an incorrect premise.

"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

I wanted to clarify how the US judicial system works, hopefully without
being too simplistic.  There is both a unified national system (the
"Federal" courts) and a set of separate state-level systems (the "State"
courts).

In the Federal system, the US is divided into "circuits," and each circuit
is further divided into "districts."  District courts serve as the trial
courts for virtually all cases that can be brought in Federal court.  A
District Court will cover all or part of a single state.  District Court
rulings can be appealed to the Circuit Court.  Circuit Courts cover several
states (putting aside an anomaly called the Federal Circuit).  Circuit
Court rulings can be appealed the U.S. Supreme Court, which covers the
entire US.  Not all cases can be brought in Federal court, but there are a
variety of ways that a case can be within the jurisdiction of the Federal
couirts.   Federal courts are run by the US.

State court systems are part of state government and the exact set-up and
names of the courts tend to vary from state to state.  Typically, there is
a trial court level and an appeals court level (or two levels of appeal as
in the Federal system).

Some types of cases (e.g., copyright) can only be brought in Federal court
("exclusive jurisidiction"). Other types can be brought in either Federal
or state court (e.g., trademark) ("concurrent jurisdiction"). Cases
involving state law issues can often be brought in Federal court if certain
criteria are met (e.g., dollar amount, diversity of citizenship (two
different states or two different countries)).  Larger, more complex cases
tend to end up in Federal court (often, but not always).  I think the
"division of labor" between the state and Federal judiciaries tends to work
quite well, with smaller,more local cases tending to be in state court, and
larger, more complex ones tending to end up in Federal court.  Also,
criminal cases (especially violent crime) tends to end up in state court
more often than Federal -- hopefully that is not within the scope of our
discussions!

I hope that helps, at least from a factual standpoint.

Greg
.

On Tue, Nov 4, 2014 at 8:53 AM, Carolina Aguerre <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> 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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>>
>>
>
>
>  --
>  Jordan Carter
>
> Chief Executive
> *InternetNZ*
>
> 04 495 2118 (office) | +64 21 442 649 (mob)
> jordan at internetnz.net.nz
> Skype: jordancarter
>
> *To promote the Internet's benefits and uses, and protect its potential.*
>
>
>
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>
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