[Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

[parminder]

On Friday 28 October 2016 07:39 PM, Paul Rosenzweig wrote:
>
> To which one needs to add that the principal reason the case is in
> California is that California is specified as the venue (and also as
> the substantive decisional law) in ICANN’s contracts.  As a general
> matter ICANN is free to specify that the next such dispute be
> determined by an arbital panel in London (as an example) if it wishes,
> or using Swiss (another example) concepts of procedural due process. 
>

This may be true for issues of breach of contract, but not for issues of
public law, like anti competitive practices, or fraud. In the latter
set, there is no choice of law available. ICANN as US not profit is
subject to US law and can be sued under it, or the state may take suo
moto action.

As from tis discussion, It has been clear during the working of this
group that, in terms of the mandate of this group to give recs on the
jurisdiction issue, there are two very different set of issues that come
up for consideration which will require very different kind of recs.

One set is of such issues where a choice of jurisdiction is available.
With regard to these issues, this subgroup has to determine how this
available choice should be exercised.

The second set is of such issues where no choice of application of law
is available, and the law of the place of incorporation and HQ applies.
This is the trickly part, and we have to determine (1) what kind of
problems may faced in the future, (2) how serious they are, their
ramifications etc, (3) what, if anything at all, can be done with regard
to this issue (4) what are the benefits and drawbacks of different
possible options, (5) considering all these elements, is it worth
recommending one or more options.

It will be most useful is our work is organised in line with the kind of
recommendations that we may make, which I see is as above. I do not see
why our current documents keep these two different kinds of issues
mixed, which admit of very different 'jurisdictional' treatment. Neither
can I understand the logic of trying to eliminate right away some
possible options that come much later in the discussion, instead of
leading a structured discussion towards them.

parminder



>
> Paul
>
>  
>
> Paul Rosenzweig
>
> paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>
>
> O: +1 (202) 547-0660
>
> M: +1 (202) 329-9650
>
> VOIP: +1 (202) 738-1739
>
> www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
>
> My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ __
>
>  
>
> *From:*ws2-jurisdiction-bounces at icann.org
> [mailto:ws2-jurisdiction-bounces at icann.org] *On Behalf Of *Mueller,
> Milton L
> *Sent:* Thursday, October 27, 2016 9:04 PM
> *To:* Jorge.Cancio at bakom.admin.ch; ws2-jurisdiction at icann.org
> *Subject:* Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document
>
>  
>
> One thing to keep in mind about these court cases. The litigation
> concerns such things as whether ICANN was in breach of contract,
> whether it committed fraud, and whether it needs to be ordered to
> follow the IRP decision. It does _/not/_ put an American court in the
> position of deciding which of two applicants for the .AFRICA domain
> are the more worthy. In other words, the U.S. court in this case is
> not the policy maker, it is a settler of legal disputes among
> contracting or would-be contracting parties.
>
>  
>
> --MM
>
>  
>
>  
>
> *From:*ws2-jurisdiction-bounces at icann.org
> <mailto:ws2-jurisdiction-bounces at icann.org>
> [mailto:ws2-jurisdiction-bounces at icann.org] *On Behalf Of
> *Jorge.Cancio at bakom.admin.ch <mailto:Jorge.Cancio at bakom.admin.ch>
> *Sent:* Thursday, October 27, 2016 4:00 PM
> *To:* gregshatanipc at gmail.com <mailto:gregshatanipc at gmail.com>;
> ws2-jurisdiction at icann.org <mailto:ws2-jurisdiction at icann.org>
> *Subject:* Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document
>
>  
>
> Hi, here’s the website about the „.africa“ issue I mentioned in the
> chat: http://www.africainonespace.org/litigation.php
>
> Cheers
>
> Jorge
>
>  
>
> *Von:*ws2-jurisdiction-bounces at icann.org
> <mailto:ws2-jurisdiction-bounces at icann.org>
> [mailto:ws2-jurisdiction-bounces at icann.org] *Im Auftrag von *Greg Shatan
> *Gesendet:* Donnerstag, 27. Oktober 2016 20:59
> *An:* ws2-jurisdiction at icann.org <mailto:ws2-jurisdiction at icann.org>
> *Betreff:* [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document
>
>  
>
>  
>
>
>
> _______________________________________________
> Ws2-jurisdiction mailing list
> Ws2-jurisdiction at icann.org
> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/ws2-jurisdiction/attachments/20161029/66f46eca/attachment.html>