[Ws2-jurisdiction] Multiple Layers of Jurisdiction: A Reminder

[Greg Shatan]

All,

I think it would be helpful to remind ourselves of the "Multiple Layers of
Jurisdiction" set out in Work Stream 1.  It would also be helpful to be
accurate, specific and clear which layer one is referring to when talking
about "jurisdiction," or the effect(s) of "jurisdiction."

The word "jurisdiction" is being used very loosely in some of our
discussions.  It is not particularly helpful to use the term "jurisdiction"
vaguely or ambiguously, or as if it were a monolithic concept.

Here is a summary of the "Multiple Layers of Jurisdiction," adapted from
the Subgroup's working document of the same name (underlined text is the
suggested short name for the layer):

*MULTIPLE LAYERS OF JURISDICTION*

1.   *Jurisdiction of Incorporation*.

a.    The jurisdiction in which an entity is legally incorporated.

2.   *Jurisdiction of Headquarters Location.*

a.    The jurisdiction in which an entity’s headquarters is physically
located.

3.   *Jurisdiction of other places of physical presence.*

a.    Other places where an entity maintains an ongoing physical
presence sufficient
to subject the entity and its actions to some or all of the laws of that
jurisdiction (as Incorporation and Headquarters Jurisdiction do).

b.    This may also determine whether an entity can be subject to suit in
the courts of that jurisdiction (i.e., “*personal jurisdiction*”).

4.   *Jurisdiction for the law to be used in interpretation of contracts,
etc. (Governing Law/Choice of Law) and actions of the Empowered Community.*

a.    The jurisdiction whose laws will be used to interpret the rights and
responsibilities of parties to a contract, whether in the normal course of
business or during a dispute (e.g., litigation, arbitration or other
dispute resolution mechanism).

b.    More broadly, the substantive law to be applied during a litigation,
arbitration or other dispute resolution mechanism.

c.    In matters involving agreements, the governing law may have been
specified in the agreement (e.g., in a “choice of law” clause).

d.   If no governing law is specified or in non-contract cases, the
governing law will be determined by the judge, panel or other
decision-maker using principles of “conflicts of laws”, typically after
submissions by the parties.

5.   *Jurisdiction for the physical location of litigation of disputes
(Venue)*.

a.    The forum in which the dispute will be heard:

i)     The type of proceeding (e.g., litigation (including the type of
court), arbitration (including the provider/rules), IRP, etc.).

ii)   The provider of that proceeding (e.g., Federal or national court,
state or local court, an arbitration provider, etc.).

iii)  The physical location (if any) in which the proceeding will take
place (e.g., the country, state/province, city, etc.).

iv)  A separate but related concept is “*subject matter jurisdiction*”
(i.e., whether the court or other forum has the power to hear a case about
a particular type of subject matter)

6.   *Relationships with national jurisdictions for particular domestic
issues.*

a.    This “layer” was listed as one of the layers of jurisdiction in Annex
12.

7.   *Meeting NTIA requirements.*

a.    This “layer” was listed as one of the layers of jurisdiction in Annex
12.
We should make a conspicuous effort to relate any discussions of
"jurisdiction" back to the specific "layer(s)" of jurisdiction we are
referring to.  This will help us have more effective discussions and to
produce more useful output from those discussions.

Greg
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