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

Wed Aug 23 20:03:47 UTC 2017

Agree on all 4 points and the conclusion

Philip S. Corwin, Founding Principal
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On Aug 23, 2017, at 1:06 PM, Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com<mailto:paul.rosenzweig at redbranchconsulting.com>> wrote:

Dear Farzaneh

Regarding the question of precedent – it depends what  you mean 😊.  The US court system is mostly geographically based.  As a result the only court that can bind the entire court system of the nation is the US Supreme Court.  As a matter of pure law, the decision in the .IR case, which was handed down by a court of appeals in the District of Columbia (i.e. the US capitol – Washington) is binding, mandatory precedent ONLY here in Washington DC.  That having been said:

  1.  Since the US government is here in Washington, many important and precedent setting cases (like this one) are decided in Washington and then the rest of the country’s courts tend to follow the lead of the DC court – not because they are legally required to do so, but because in our system it is rare (not unheard of, but rare) for courts outside Washington to purposefully set up a conflict with the DC court.
  2.  This is especially so because the court in Washington is considered by most to be the second most important and influential court in the country, after the US Supreme Court.  So much so that 3 of the current Justices (there are 9 total) were first judges in the DC court.
  3.  It is also likely to be followed outside of DC because it is actually the “right” decision (to the extent anything in law is ever “right”).  There was no disagreement in DC – 3 judges all voted the same way (and affirmed a 4th lower court judge who came to the same answer through a different argument).
  4.  Finally, note that in cases like this, the lawyers only get paid if they win.  Having lost the .IR case so decisively, it is unlikely that many lawyers will want to waste time and money trying again.

I think ICANN won a significant victory in the .IR case that will be very, very likely to hold up in the long run.  At least that is what I would advise a client if they asked me.

Cheers
Paul

Paul Rosenzweig
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From: ws2-jurisdiction-bounces at icann.org<mailto:ws2-jurisdiction-bounces at icann.org> [mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of farzaneh badii
Sent: Wednesday, August 23, 2017 8:07 AM
To: Nigel Roberts <nigel at channelisles.net<mailto:nigel at channelisles.net>>
Cc: ws2-jurisdiction <ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>>
Subject: Re: [Ws2-jurisdiction] ISSUE: In rem Jurisdiction over ccTLDs

In the .IR case, the court did not decide on whether ccTLD is a property or not. Anyhow, I do not think we should go into that discussion. I think the important thing to find out is whether the court case in .IR is precedential.

I don't think the second part of your solution would work Thiago, if jurisdictional immunity is not granted to ccTLDs ( I don't know how we can get such jurisdictional immunity and don't forget that some ccTLD managers are totally private and not government run).

The below might not be enforceable:

"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."

First of all not many ccTLDs have contracts with ICANN. Secondly, in third party claims or disputes, for example in case of initiating attachment of a ccTLD as an enforcement of a monetary compensation, this clause might be challenged and might very well be ineffective.

Farzaneh

On Wed, Aug 23, 2017 at 7:05 AM, Nigel Roberts <nigel at channelisles.net<mailto:nigel at channelisles.net>> wrote:
You can make such assertions all you like, but it doesn't make it necessarily so.

The best I can offer by way of certainty in the matter is "we don't really know, but we can take some guesses".

The difference between the DNS and spectrum is that spectrum exists per se. The DNS only exists becuase it was designed and constructed.

I could start a different DNS tomorrow. It would not get wide use, but it would not differ in any way from the existing DNS.

Furthermore possible new technologies can outdate the current DNS (I'm thinking of blockchain) just like SMTP outdated and made X.400 useless.

On 23/08/17 11:52, Arasteh wrote:
Dear All
ccTLD at any level shall not be considered as property or attachment at all.
gTLD including ccTLD are resources like orbital /spectrum which are not at possession of any entity but could be used under certains rules and procedure established for such use
Any action by any court to consider it as attachment is illegal
and illegitimate as DNS shall not be used as a political vector or means against any people covered under that DNS.
Being located in a particular country does I no way grant / provide any legal or administrative or judicial right to that country . DNS is a universal resources belong to the public for use under certains rules and procedure and shall in no way be used asa vehicle for political purposes.
We need to address this issue very closely and separate political motivation from technical use.
Regards
Kavouss
Sent from my iPhone
On 23 Aug 2017, at 08:52, <Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch>> <Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch>> wrote:

Dear all,

please excuse my ignorance, but have domain names not be seized as "assets" or "property" in the US under the application of domestic law?

Wikipedia info is here: https://en.wikipedia.org/wiki/Operation_In_Our_Sites

If a second level domain is subject to potential seizure, why not a TLD?

Regards

Jorge

-----Ursprüngliche Nachricht-----
Von: ws2-jurisdiction-bounces at icann.org<mailto:ws2-jurisdiction-bounces at icann.org> [mailto:ws2-jurisdiction-bounces at icann.org<mailto:ws2-jurisdiction-bounces at icann.org>] Im Auftrag von Nigel Roberts
Gesendet: Mittwoch, 23. August 2017 08:44
An: ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>
Betreff: Re: [Ws2-jurisdiction] ISSUE: In rem Jurisdiction over ccTLDs

Milto

There is no authority at all for this Claim, in law, as I suspect you know.

As I suspect you also know very well, the nearest evidence that might support such a Claim is that one of the contentions in /Weinstein/ was that a ccTLD (three of them, if I remember correctly) could be garnished under the "state law" of DC. (I know technically, DC is not a state of the Union, but I don't know the US correct term-of-art for 'state or capital region')

Unfortunately or fortunately (depending on one's point of view) it was not necessary for the Court to decide on this claim by the Judgment Debtor. This means that the idea that US courts might either have either or both of :-

(a) legal jurisdiction over the ownership of the rights represented by a ccTLD delegation

(b) the desire to exercise such (lack of desire to address a particular contention usually leads judges in common-law systems to be able conveniently to find a creative ratio that finds other reasons that the case can be decided

remains a completely open question.

It seems to me that additional hints for future litigants (as you know, common-law judges do that too) appear to have been given in the Weinstein judgment as to whether the rights in law enjoyed by a ccTLD manager (whatever they might be) MIGHT constitute property or not, but this remarks don't even amount to /obiter dictum/ - they are just hints at a possible road of future judicial travel and any court seised of a future Claim is entirely free to ignore them.

And, even so, those hints don't address the question of /in rem/ at all.

As you can see, I (along with some others in the ccTLD community) havefollowed, and analysed this case carefully and in some detail.

We are aware of no other possible legal authority that addresses whether ccTLDs are property (let alone whether that property, if it is property, is subject to /in rem/ jurisidiction).

Unless others have additional information?

Nigel Roberts

PS: I would also commend others to read Farzaneh and Milton's ccTLD paper.

On 22/08/17 22:31, Mueller, Milton L wrote:

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

What is the evidence for this claim?

--MM

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