[Ws2-jurisdiction] ISSUE: "US jurisdiction over ICANN's policy development and policy implementation activities performed in the global public interest"

[Thiago Braz Jardim Oliveira]

Dear all,

For your consideration:

Issue 1: "Jurisdiction over ICANN's policy development and policy implementation activities which ICANN performs in the global public interest"

Description: The courts and enforcement agencies of the US are in a unique position to both exercise jurisdiction and enforce rules (i.e. jurisdiction to prescribe, to adjudicate and, most importantly, to enforce) against policy-related activities ICANN performs in the global public interest. They are activities relating to the management of the Domain Name System and, currently, are subject to the exclusive enforcement jurisdiction of the territorial State. But according to the principle of equal participation of all stakeholders in their respective roles and responsibilities, no single country should be able to single-handedly impact on the activities ICANN performs in the global public interest, notably ICANN's policy development and policy implementation activities relating to the management of the Domain Name System.

Proposed solution: ICANN shall establish a compulsory dispute settlement mechanism, or commit to have recourse to international arbitration, for all such disputes relating to ICANN's activities performed in the global public interest. Once a compulsory dispute settlement mechanism has been agreed to for such disputes, ICANN shall seek jurisdictional immunities from the local courts in their respect. In addition, ICANN should include in its agreements an exclusive choice of forum clause, whereby disputes relating to such activities shall be settled exclusively through recourse to the agreed and compulsory dispute settlement mechanism referred to above. Finally, ICANN shall seek immunity from enforcement measures that affect the activities it performs in the global public interest, notably ICANN's policy development and policy implementation activities relating to the management of the Domain Name System.

Looking forward to more substantive discussion on this, further to the exchanges we've already had today.

Best regards,

Thiago
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