[Ws2-jurisdiction] Employ Media LLC case summary

Wed Apr 19 10:38:23 UTC 2017

Thank you for these comments Nigel.

I was not aware of any requirements regarding the format. To my knowledge,
.doc/x is as open as .pdf and both are supported by third party
applications beyond those (MS Word and Acrobat) of the original publisher.
As for vulnerabilities of either format, I must say I do not have
particular knowledge on that issue. That being said, I think submitting
cases in an easily editable format has its advantages when working
collaboratively, but I can certainly submit a pdf along the .doc/x, or
eventually only the pdf is that is what is agreed upon.

As for the doctrines used, I did not spend a lot of time evaluating the
validity and strength of the legal arguments presented by the counsel for
EmployMedia; I merely relayed the fact that this counsel claimed that the
governing law for the contract was either Ohio or California contract law.

The main issue regarding jurisdiction which I raised in my submission and
highlighted at the call yesterday is the fact that there is no choice of
law in registry agreements *and *that these registry agreements have an
arbitration clause. This combination makes it difficult to determine in
advance with reasonable certainty which law governs the contract, even more
so than if the dispute was to be settled in court, because courts are bound
by choice of law rules, and (usually) not arbitration panels. This has an
effect, in turn, on legal certainty and risk assessment of the parties. I
presume that ICANN has a good reason for such a choice, and a question will
be drafted by Jorge and submitted to ICANN legal.

As such, I am not sure to understand your suggestion that "anyone who wishes
to rely on estoppel should file in court, not IRP" or that "all this is a thin
gruel on which to base a discussion of jurisdictional principle;" if you
mean that the facts of the case are not really relevant as far as
jurisdictional issues this SWG is concerned with, then yes I do agree. I
provided the additional info on the settlement simply because some
participants requested it (Milton, I recall, and someone else I think.)

Best,

2017-04-19 8:30 GMT+02:00 Nigel Roberts <nigel at channelisles.net>:

> I'd like to make the following submissions.
>
> 1. Non-proprietary formats
>
> Not everyone uses Microsoft Windows. I would request that ICANN and the
> community respect this, by please avoid proprietary formats such as .DOC or
> .DOCX in favour of standard formats such as PDF. Furthermore .DOC/DOCX are
> a security risk as they are susceptible to macroviruses.
>
>
> 2. On the content, it is important to note that the claims of estoppel
> and/or laches (which were not adjudicated in this case) do not form part of
> contract law.
>
> In fact they are not legal doctrines at all in the strict sense of the
> meaning he words 'law' and 'legal' in common-law jurisdictions. They are
> part of Equity, which although in most places (I think Virginia was the
> last) are adjudicated in the same courts, is a separate system of law,
> deriving from medieval religious law.
>
>
> So far, so irrelevant.
>
>
> But what is very definitely not irrelevant is that equitable rules are not
> enforceable in the same way as legal rules.
>
> They are discretionary.
>
> I cam across this quote from Hegel
>
> “Equity involves a departure from formal rights owing to moral or other
> considerations and is concerned primarily with the content of the lawsuit.
> A court of equity, however, comes to mean a court which decides in a single
> case without insisting on the formalities if a legal process or, in
> particular, on the objective evidence which the letter of the law may
> require. Further, it decides on the merits of the single case as a unique
> one, not with a view to disposing of it in such a way as to create a
> binding legal precedent for the future."
>
> Of course 'discretion' does not mean freedom to act arbitrarily. But what
> does this mean for jurisdiction?
>
> There has been much discussion in the UDRP process about whether estoppel
> in particular can be relied upon. Whilst much of this is inconclusive, I
> would suggest that anyone who wishes to rely on estoppel should file in
> court, not IRP.
>
> And finally, this discussion is on a Claim of equitable principles in an
> IRP which was not found necessary to be decided upon.
>
> It's a thin gruel on which to base a discussion of jurisidictional
> principle in my view.
>
>
>
>
>
>
>
>
> On 18/04/17 21:54, Raphaël BEAUREGARD-LACROIX wrote:
>
>> As a follow up from the call, and to answer the question raised by some
>> regarding the settlement of the case:
>>
>> As a reminder on the facts of the dispute,It was claimed by ICANN that
>> certain .jobs registrants did not comply with the requirements set out in
>> the registry charter and that Employ Media, the registry, has proceeded
>> with a unilateral broadening of the charter. Boiling it down, the dispute
>> focused on how to interpret the list of requirements set out in the
>> charter, as they were not all factually mutually exclusive (it was
>> eventually possible to imply the satisfaction of some requirements from
>> the
>> satisfaction of some others)
>>
>> ICANN and Employ Media settled on the basis of representations made by the
>> sponsor of .jobs (the Society for Human Rights Management), to the effect
>> that, among others, it would ensure that registrants provide the necessary
>> representations with regards to their own compliance with the requirements
>> of the charter. The letter provided by SHRM states that it believes all
>> currently registered names comply with the charter.
>>
>> In that sense, it would be difficult to determine a clear winner in this
>> case, while ICANN did not "back off," no names had to be deregistered as a
>> result of the settlement. In a way, the sponsor seems to have stepped in
>> and vouched for the actions of Employ Media.
>>
>> I have amended the case report with this information. The new version is
>> attached here.
>>
>> Best,
>>
>>
>> 2017-04-18 8:22 GMT+02:00 Greg Shatan <gregshatanipc at gmail.com>:
>>
>> All,
>>>
>>> I encourage you to review this case summary as well (which alsol has now
>>> been on our list nearly two weeks) and reply with any observations or
>>> questions you may have.
>>>
>>> Greg
>>>
>>>
>>> *Greg Shatan *C: 917-816-6428
>>> S: gsshatan
>>> Phone-to-Skype: 646-845-9428
>>> gregshatanipc at gmail.com
>>>
>>>
>>> On Thu, Apr 6, 2017 at 5:33 AM, Raphaël BEAUREGARD-LACROIX <
>>> raphael.beauregardlacroix at sciencespo.fr> wrote:
>>>
>>> Hello everyone,
>>>>
>>>> You will find attached the summary for Employ Media LLC v ICANN, an ICC
>>>> arbitration case that was ultimately settled.
>>>>
>>>> Best,
>>>>
>>>> --
>>>> Raphaël Beauregard-Lacroix
>>>> Sciences Po Law School 2014-2017
>>>> LinkedIn
>>>> <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/>
>>>> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
>>>> <+33%207%2086%2039%2018%2015>
>>>>
>>>>
>>>>
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>>>>
>>>
>>
>>
>>
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-- 
Raphaël Beauregard-Lacroix
Sciences Po Law School 2014-2017
LinkedIn
<https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> -
@rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
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