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

Tue Aug 22 13:50:10 UTC 2017

Dear Jordan,
Dear All,

Thank you for your email. Thank you for drawing this to our attention.

I also thank Jorge and Kavouss and Par Brumark, who have made most valid points to the effect that the jurisdiction subgroup is entitled to consider such issues and recommendations specifically tackling the subjection of ccTLDs to the exclusive enforcement jurisdiction of US agencies.

Accordingly,

Considering the development by the ccNSO of a PDP on the retirement of country code Top Level Domains (ccTLDs), and on review mechanisms for decisions relating to the delegation, transfer, revocation and retirement of ccTLDs, which is indeed a prerogative of the ccNSO, the subgroup on jurisdiction should not have to recommend, as I partly proposed, that ICANN develops rules and mechanisms to settle disputes involving ccTLDs.

Considering that ICANN's activities relating to the management of ccTLDs already have, or will have, their own accountability mechanisms, according to the policy and rules developed by the ccNSO, the subgroup on jurisdiction, therefore, should only recommend that ICANN obtain immunity from the jurisdiction of US courts, as well as immunity from enforcement measures by US agencies, in respect of such activities relating to the management of ccTLDs of other countries.

The proposal I submitted titled "In rem Jurisdiction over ccTLDs" is accordingly amended.

It should enhance ICANN's accountability as defined in the NETmundial multistakeholder statement, which is expressly relied on in the Charter of W2 to define accountability, by not allowing the organs of the single country with exclusive enforcement jurisdiction over the management of the DNS to single-handedly interfere with ICANN's activities relating to ccTLDs.

Best,

Thiago

________________________________
De: Jorge.Cancio at bakom.admin.ch [Jorge.Cancio at bakom.admin.ch]
Enviado: terça-feira, 22 de agosto de 2017 8:54
Para: jordan at internetnz.net.nz; Thiago Braz Jardim Oliveira; ws2-jurisdiction at icann.org
Assunto: AW: [Ws2-jurisdiction] ISSUE: In rem Jurisdiction over ccTLDs

Dear Jordan and all,

I do not think that the issue proposed and the CCNSO process and safeguards are mutually exclusive.

Kind regards

Jorge

Von: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounces at icann.org] Im Auftrag von Jordan Carter
Gesendet: Dienstag, 22. August 2017 11:59
An: Thiago Braz Jardim Oliveira <thiago.jardim at itamaraty.gov.br>; ws2-jurisdiction <ws2-jurisdiction at icann.org>
Betreff: Re: [Ws2-jurisdiction] ISSUE: In rem Jurisdiction over ccTLDs

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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Jordan Carter | Chief Executive, InternetNZ

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Sent on the run, apologies for brevity
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