[Ws2-jurisdiction] Jurisdiction Subgroup: The Path Forward

Mon Aug 14 07:41:30 UTC 2017

dEAR gREG,
I have already raised in two communications few questions which are still
valid, even though some people  ,in a recent peer communication has
surprisingly told me believe that I have not raised any question at all
during the entire period, which is unfair to say so as I have been  very
active and raised several questions .However, that is their views for which
I do not care.  .
I may send some explanations in regard with some of them if the time
permits.
Regards
Kavouss

On Mon, Aug 14, 2017 at 8:57 AM, <Jorge.Cancio at bakom.admin.ch> wrote:

> Dear Greg and all,
>
>
>
> Here is my feedback:
>
>
>
> -          The “.swiss” input into the questionnaire still stands, which
> identifies issues and also some possible solutions. (see attached)
>
>
>
> -          In addition, I would like to recall the following inputs I
> made to the “influence document” (which I found here:
> https://community.icann.org/display/WEIA/Jurisdiction):
>
>
>
> “ICANNs main agreements (with registries and registrars) are generally
> silent on applicable law. This silence may be construed differently by
> different courts in different jurisdictions, although I feel there is a
> natural tendency in courts to apply its own laws if the agreement is silent
> and there are internal/national rules that tilt into a certain direction.
> This means that the choice of applicable law may be limited nowadays in
> practice, which in principle may disadvantage stakeholders not familiar
> with the implicit choice of law.
>
>
>
> At the same time, registry agreements for IGO/Governmental entities have
> some flexibilities built in as to applicable law or, to be more precise, as
> to conflicts arising from diverging obligations coming from the agreement
> with ICANN and the international law obligations. This is reflected for
> instance in section 7.16 of the model registry agreement.
>
> This flexibility could be extended to other registries confronted with
> similar conflicts, not only with international law, but also when
> confronted with conflicts stemming from national law.
>
>
>
> The flexibility could also take the form of a more wider recognition of
> freedom to choose the applicable law for the parties in the main agreements
> ICANN has.
>
>
>
> The material you mention has, at least at first glance, some relevant
> rules of choice of law that in a foreigners eye seem to clearly tilt for
> the "forum" jurisdiction (for instance the "government interest analysis
> test").
>
>
>
> But, what are the rules followed by California?
>
>
>
> I see that for “contracts” (most relevant to contracting parties) the
> second restatement is followed apparently which provides the following:
>
>
>
> "d.Contract: In the first instance, the courts must give effect to the law
> chosen by the parties. In the absence of any such agreement, the courts are
> directed to the “significant relationship” test of Section 6. Restatement
> (Second) of Conflict of Laws § 188. The contacts to take into account in
> determining those principles are:
>
> i.the place of contracting,
>
> ii.the place of negotiation of the contract,
>
> iii.the place of performance,
>
> iv.the location of the subject matter of the contract, and
>
> v.the domicile, residence, nationality, place of incorporation and place
> of business of the parties."
>
>
>
> It would be interesting to know how these contact points are construed in
> the relation between ICANN and its contracted parties, i.e. what the place
> of contracting is, the place of negotiation, place of performance, etc. -
> how they are intended to be construed by the contracting parties and what
> have been the actual analysis (if any) in the cases had up to today in
> disputes.
>
>
>
> For "torts" (I guess including cases brought for damages by materially
> harmed parties that are not contractually bound to ICANN) the mentioned
> "governmental interest analysis" seems to apply ("California uses this test
> in determining the law applicable to tort claims.").
>
>
>
> This test means that "the law of the forum is presumed to apply unless a
> party demonstrates otherwise."
>
>
>
> I feel this could be seen as a significant tilt.
>
>
>
> *Experiences on how these rules (both on contracts and torts) apply in
> practice could be of interest and could be contrasted with ICANN, and
> registries and registrars (and other parties) based in other jurisdictions.
> That fact-finding exercise would also allow us to see whether and in what
> instances that "tilting" occurs.*
>
>
>
> *A similar fact-finding should be done for what “applicable law” applies
> in internal mechanisms (such as the IRP).*
>
>
>
> 2)      Making sure that the hearings of the IRP are location-neutral
>
>
>
> 3)      In the “multiple layers” doc, under “venue”, I had identified the
> following issues and solutions:
>
>
>
> “Under venue or venues: multiplicity of venues and of providers of dispute
> resolution mechanisms (be it judicial or arbitration). Flexibilities as to
> standards, election of providers, language of proceedings, freedom to
> choose for the parties.]“ and “I guess that under “venue” we would need to
> consider the IRP and other internal redress mechanisms and how well they
> address the needs of a global stakeholder community, in terms of their
> composition, the language of proceedings, the venue(s), the providers,
> etc.].”
>
>
>
> I may have missed other important points made before, but I’m sure
> Secretariat could help in collating all our essential inputs.
>
>
>
> Kind regards
>
>
>
> Jorge
>
>
>
>
>
> *Von:* ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-
> bounces at icann.org] *Im Auftrag von *Greg Shatan
> *Gesendet:* Samstag, 12. August 2017 01:13
> *An:* ws2-jurisdiction <ws2-jurisdiction at icann.org>
> *Cc:* Thomas Rickert <thomas at rickert.net>
> *Betreff:* [Ws2-jurisdiction] Jurisdiction Subgroup: The Path Forward
>
>
>
> Jurisdiction Subgroup Members,
>
>
>
> As explained by Staff at our last meeting on 9 August, we have until *11
> October* to submit a draft set of recommendations to the Plenary for
> consideration as a first reading if any such recommendations are to be
> accepted by the Plenary, published for Public Consultation and included in
> the Final WS2 Report.
>
>
>
> In other words, we have about *8 weeks* to develop a draft set of
> recommendations and come to consensus on these.
>
>
>
> Obviously, given this time-frame, we have to accept that we will not be
> able to address all issues. In fact, the only realistic approach, if we
> want to deliver any recommendations, is to pick a handful of issues (2 to
> 4) on which we can all agree and for which we believe we can propose
> recommendations that will achieve consensus.
>
>
>
> I remain optimistic that we can do this if we can agree, meaning everyone
> will have to compromise, to select this limited number of issues over the
> next very few weeks and work diligently at meetings and on the list to
> develop recommendations for these.
>
>
>
> To reach this objective I would propose the following approach:
>
>
>
>    - *Each participant should pick one issue which they believe is in
>    scope for us and post that issue to the list prior to our meeting of 23
>    August. More specifically:*
>
>
>    - *Issues should be very specific -- avoid open-ended, abstract or
>       omnibus issues*
>       - *Issue description should be succinct -- 12 standard lines
>       maximum*
>       - *Proposed solutions – if you have a possible solution or
>       recommendation which should be considered, please include it (again, being
>       succinct).*
>       - *Put your issue in a new email (not a reply), with the subject
>       ISSUE: [name of issue]*
>       - *The sooner, the better*
>
> I look forward to discussing this proposal at our next meeting of *16
> August* and I would encourage participants to comment on this proposal in
> response to this email prior to that meeting.
>
>
>
> Greg
>
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>
>
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