[Ws2-jurisdiction] Pool.com case summary
parminder
parminder at itforchange.net
Thu Apr 6 03:50:41 UTC 2017
On Wednesday 05 April 2017 10:19 PM, Paul Rosenzweig wrote:
>
> And as we have said before, ICANN cannot escape US jurisdiction by
> moving its headquarters. US law will assert jurisdiction so long as
> ICANN has “substantial contacts” with the US. The same is true of UK,
> Germany, Canada, Australia and I believe India …
>
We have been over this many times, but I simply cannot let pass this
absurd proposition that India, for instance, has a comparable
jurisdictional leverage over ICANN to US. I do not know why, even as a
lawyer, you keep on making it.
And if indeed it was so, why not then lets have ICANN be moved to India
or Switzerland.. US can still keep exercising its jurisdiction over
ICANN, as you argue it will be able to, and all others can be happy too!
Meanwhile, it is not just the matter of a court exercising jurisdiction,
but even more importantly of having leverage to enforce its writ....
As to the "substantial contacts" argument, if you go through the various
court cases involving ICANN, you will see that wherever possible ICANN
has denied "substantial contacts" is all places other than California,
US, arguing that its role in the DNS stops with making a contract with
a registry, which contract is deemed to have been made in California and
is subject to its laws. Rest, downstream in the DNS, is none of ICANN's
business...
parminder
>
>
> Once again, this is wrong.
>
>
>
> 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:
> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
>
>
>
> *From:*ws2-jurisdiction-bounces at icann.org
> [mailto:ws2-jurisdiction-bounces at icann.org] *On Behalf Of *parminder
> *Sent:* Wednesday, April 5, 2017 5:58 AM
> *To:* ws2-jurisdiction at icann.org
> *Subject:* Re: [Ws2-jurisdiction] Pool.com case summary
>
>
>
> Although I do see that in some other cases ICANN did contest the
> jurisdiction over certain of its acts of different states in the US,
> claiming that California jurisdiction should apply. But the main point
> of discussion here is about larger application of US jurisdiction over
> ICANN vis a vis that of other countries.
>
> parminder
>
> On Wednesday 05 April 2017 12:56 PM, parminder wrote:
>
>
>
>
>
> On Tuesday 04 April 2017 08:32 PM, Paul Rosenzweig wrote:
>
> Statement #2 below is incorrect. I haven’t reviewed them all
> but at a minimum ICANN contested jurisdiction in Arizona v.
> ICANN, the law suit filed by the states to attempt to stop the
> transition.
>
>
> For my statement # 2 to be incorrect, ICANN should have challenged
> application of US court jurisdiction in the Arizona case -- In
> fact there is no Arizona v. ICANN case that I can find. I can only
> find an Arizona v. NTIA case..... I cant see ICANN to be a party
> to it, neither has it filed a response. Will you please show me
> where ICANN challenges US court jurisdiction in this case? Thanks.
>
> 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:
> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
>
>
>
> *From:*ws2-jurisdiction-bounces at icann.org
> <mailto:ws2-jurisdiction-bounces at icann.org>
> [mailto:ws2-jurisdiction-bounces at icann.org] *On Behalf Of
> *parminder
> *Sent:* Tuesday, April 4, 2017 6:14 AM
> *To:* ws2-jurisdiction at icann.org
> <mailto:ws2-jurisdiction at icann.org>
> *Subject:* Re: [Ws2-jurisdiction] Pool.com case summary
>
>
>
>
>
>
>
> On Monday 03 April 2017 07:57 PM, Paul Rosenzweig wrote:
>
> Why would you say that Seun – it is what the lawyers for
> ICANN argued, but there is no evidence that the Canadian
> court agree to that submission. I would expect ICANN’s
> lawyers to make that argument and I would also expect
> based on what little I know of Canadian law that in the
> end the court would have rejected the argument.
>
>
> It is absolutely significant that
>
> (1) In the only documented case which went before a non US
> court, ICANN promptly contested the court's jurisdiction. This
> is fact was its primary argument as far as I can see from the
> case details.
>
> (2) In none of more than 20 other documents cases, all in US
> courts, ICANN ever contested -- in the slightest -- the
> court's jurisdiction over ICANN or the matter under
> consideration.
>
> It clearly shows that everyone -- ICANN, US courts, in fact
> even all of us -- know what is what vis a vis the absolute
> jurisdictional powers of US over ICANN, and thus over its
> policies and their implementation, and very feeble
> jurisdictional leeway (and even lesser enforcement capacity)
> that non US courts and other state agencies have over ICANN.
>
> We are simply wasting out time trying to minutely examine
> facts that are fairly well established and normally not
> contested.
>
> As you agreed with me in a way, lets come to the crux of the
> matter, and see what is this group really trying to do, what
> progress we are making or not making, what is the prognosis of
> possible outcomes, and so on....
>
> IMHO we are just making ourselves believe that we are doing
> something in this group, when in fact we are not doing
> anything at all.
>
> */Sub-group chairs,/*
>
> Kavouss had put the matter to the CCWG chairs of the email I
> wrote about the non progress of this groups work. CCWG chair
> seem to have ordered the matter to be addressed by the sub
> group. Are you going to take up that matter?
>
> Also note that Paul too agreed with me that we seem not to be
> going anywhere (or some such, I do not want to put words in
> his mouth, his email of a few days back may be read)
>
> Thanks, 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:
> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
>
>
>
> *From:*ws2-jurisdiction-bounces at icann.org
> <mailto:ws2-jurisdiction-bounces at icann.org>
> [mailto:ws2-jurisdiction-bounces at icann.org] *On Behalf Of
> *Seun Ojedeji
> *Sent:* Monday, April 3, 2017 9:41 AM
> *To:* Mathieu Weill <mathieu.weill at afnic.fr>
> <mailto:mathieu.weill at afnic.fr>
> *Cc:* ws2-jurisdiction <ws2-jurisdiction at icann.org>
> <mailto:ws2-jurisdiction at icann.org>
> *Subject:* Re: [Ws2-jurisdiction] Pool.com case summary
>
>
>
> Thanks a lot for sharing this Mathieu, I guess this
> removes any claims that the experience would be the same
> if ICANN were sued outside of her jurisdiction of
> incorporation. The following text makes that quite clear:
>
> "Defendant ICANN asserted that the Court lacked
> jurisdiction because (quoting the argument):
> ICANN is not resident in Ontario
> The Action has no real or substantial connection to Ontario
> Virtually all the evidence and witnesses are in California"
>
> I am not a lawyer but perhaps it may be good to know how
> flexible it is for non-US customer of ICANN to legally
> engage/challenge ICANN in her place of incorporation. The
> impact of this on US-banned countries may also be a good
> to know.
>
> Regards
>
>
>
> On Mon, Apr 3, 2017 at 2:29 PM, Mathieu Weill
> <mathieu.weill at afnic.fr <mailto:mathieu.weill at afnic.fr>>
> wrote:
>
> Dear Colleagues,
>
>
>
> Here is another summary form for the Pool.com vs ICANN
> case. It’s an interesting case because it was the
> only one documented as submitted in front of a non-US
> court. However it was settled before it reached the
> decision stage.
>
>
>
> Best,
>
>
>
> --
> *****************************
> Mathieu WEILL
> AFNIC - directeur général
> Tél: +33 1 39 30 83 06 <tel:+33%201%2039%2030%2083%2006>
> mathieu.weill at afnic.fr <mailto:mathieu.weill at afnic.fr>
> Twitter : @mathieuweill
> *****************************
>
>
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>
> --
>
> ------------------------------------------------------------------------
>
> /Seun Ojedeji,
> Federal University Oye-Ekiti
> web: //http://www.fuoye.edu.ng
> //Mobile: +2348035233535//
> //alt
> email:<http://goog_1872880453>seun.ojedeji at fuoye.edu.ng
> <mailto:seun.ojedeji at fuoye.edu.ng>/
>
> Bringing another down does not take you up - think
> about your action!
>
>
>
>
>
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>
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