[Ws2-jurisdiction] ISSUE: In rem Jurisdiction over ccTLDs

[Nigel Roberts]

I fully support Jordan's intervention here.

Neither this group nor the ICANN Board can legislate for ccTLDs - the 
strong respecting of the principle of subsidiarity by ICANN is 
fundamental to the relationship tween the ccTLD community and ICANN, 
enabling the 2003 Montreal Agreement which rescued the multistakeholder 
model, reversing the previous year's formal rejection and abandonment of 
the ICANN system by ccTLDs.



On 22/08/17 10:58, Jordan Carter wrote:
> Dear Thiago, dear all,
>
> Dispute resolution regarding ccTLD matters is currently the subject of a
> PDP in the ccNSO.
>
> This isn't the perfect link but does give some info:
>
> https://www.icann.org/public-comments/ccnso-pdp-retirement-review-2017-05-24-en
>
> While the existence of the PDP does not prevent this sub-group of the
> CCWG discussing this matter, my understanding of ICANN's bylaws is that
> the Board would not be able to accept any WS2 recommendation on this
> subject.  That is a hard won protection of our ccTLD independence that
> has been a feature of the ICANN system since the ccNSO was formed.
>
> As such, the Jurisdiction group may prefer to focus its effort and
> energy on matters where implementable recommendations can be made by the
> CCWG.
>
> Hope this helps,
>
> Jordan
>
>
> On Tue, 22 Aug 2017 at 1:32 PM, Thiago Braz Jardim Oliveira
> <thiago.jardim at itamaraty.gov.br <mailto:thiago.jardim at itamaraty.gov.br>>
> wrote:
>
>     Dear All,
>
>     For your consideration:
>
>     Issue 3: In rem Jurisdiction over ccTLDs
>
>     Description: US courts have in rem jurisdiction over domain names as
>     a result of ICANN's place of incorporation, and US courts and US
>     enforcement agencies could possibly exercise its exclusive
>     enforcement jurisdiction over ICANN to compel it to re-delegate
>     ccTLDs. This is contrary, in particular, to paragraph 63 of the
>     Tunis Agenda: "Countries should not be involved in decisions
>     regarding another country's country-code Top-Level Domain (ccTLD).
>     Their legitimate interests, as expressed and defined by each
>     country, in diverse ways, regarding decisions affecting their
>     ccTLDs, need to be respected, upheld and addressed via a flexible
>     and improved framework and mechanisms." It is to be noted that while
>     paragraph 63 may not state that States have sovereignty over ccTLDs,
>     it does establish that States should not interfere with ccTLDs.
>     Further, an obligation on States not to interfere with certain
>     matters, as ccTLDs, need not be based on the principle of
>     sovereignty to exist, nor does it suppose that the matter is one
>     subject to the sovereignty of States. For States can simply agree to
>     limit their ability to interfere with ccTLDs delegated to other
>     countries, and this is the principle embodied in Paragraph 63 of the
>     Tunis Agenda.
>
>     Proposed solution: ICANN should seek jurisdictional immunities in
>     respect of ICANN's activities relating to the management of ccTLDs.
>     In addition, it should be included in ICANN Bylaws an exclusive
>     choice of forum provision, whereby disputes relating to the
>     management of any given ccTLD by ICANN shall be settled exclusively
>     in the courts of the country to which the ccTLD in question refer. A
>     similar exclusive choice of forum clause shall be included in those
>     contracts ICANN may have with ccTLD managers, where such a contract
>     exists.
>
>     Best regards,
>
>     Thiago
>     _______________________________________________
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>     Ws2-jurisdiction at icann.org <mailto:Ws2-jurisdiction at icann.org>
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>
> --
> Jordan Carter | Chief Executive, InternetNZ
>
> +64-21-442-649 | jordan at internetnz.net.nz <mailto:jordan at internetnz.net.nz>
>
> Sent on the run, apologies for brevity
>
>
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