[Ws2-jurisdiction] Pool.com case summary

Sat Apr 8 15:38:49 UTC 2017

This again?  Steve Crocker made it very clear in Copenhagen that the Board
has no idea why we are still talking about this.  

Best,

Paul

From: ws2-jurisdiction-bounces at icann.org
[mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of Paul Rosenzweig
Sent: Thursday, April 06, 2017 11:50 AM
To: 'parminder' <parminder at itforchange.net>; ws2-jurisdiction at icann.org
Subject: Re: [Ws2-jurisdiction] Pool.com case summary

Sorry Paraminder – but just saying it is absurd doesn’t change the facts.
The only way in which US jurisdiction has a superior claim is with respect
to the law of jurisdictional organization.  In other words, California
corporate law governs ICANN’s bylaws formulation and Board and corporate
operations preferentially.  But any place that ICANN does business is a
potential place to sue on contract, or tort basis.

As for why not move to India – I have tried very hard not to reduce this to
a comparison of the value and functioning of judicial systems.  I don’t
propose to start now.

Paul

Paul Rosenzweig

 <mailto:paul.rosenzweig at redbranchconsulting.com>
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From: parminder [mailto:parminder at itforchange.net] 
Sent: Wednesday, April 5, 2017 11:51 PM
To: Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com
<mailto:paul.rosenzweig at redbranchconsulting.com> >;
ws2-jurisdiction at icann.org <mailto:ws2-jurisdiction at icann.org> 
Subject: Re: [Ws2-jurisdiction] Pool.com case summary

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

 <mailto:paul.rosenzweig at redbranchconsulting.com>
paul.rosenzweig at redbranchconsulting.com

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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: Wednesday, April 5, 2017 5:58 AM
To: ws2-jurisdiction at icann.org <mailto: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

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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

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O: +1 (202) 547-0660

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 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com

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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  <mailto:mathieu.weill at afnic.fr> <mathieu.weill at afnic.fr>
Cc: ws2-jurisdiction  <mailto:ws2-jurisdiction at icann.org>
<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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