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

parminder parminder at itforchange.net
Thu Aug 24 16:36:20 UTC 2017



On Thursday 24 August 2017 09:56 PM, parminder wrote:
>
> Thanks Milton for restating the facts of the case.
>
> It is significant that
>
> (1) the US court exercised its jurisdiction over the relationship
> between a ccTLD and ICANN, and did not refrain from exercising
> jurisdiction. This is a most important point to note.
>
> (2) Even if provisionally, it did proceed as if a ccTLD is sizeable
> property.
>

meant, sieze-able property

> (3) It rightly decided that on the balance a seizure of ccTLD would
> much more adversely affect the interests of ICANN, a US party, even
> when it was at no fault, than it could cause positive benefit to the
> interests of the party which brought the suit. And therefore the court
> dismissed it. However, in another case, the balance could be decided
> by the court to be different, especially if ICANN could also be
> judged, in the wisdom of the court, to have been procedurally or
> substantially deficient, and the nature of the interests of the
> plaintiff that are involved judged to be high importance, such that to
> deny the latter be considered as a miscarriage of justice, while the
> corresponding loss to ICANN, given its partial deficiency, not so
> much. The question is, what happens then? We are trying to provide for
> such cases.
>
> parminder
>
>
>
> On Thursday 24 August 2017 08:30 PM, Mueller, Milton L wrote:
>>
>> Some people have shown a lack of awareness of the nature of the
>> Appeals Court decision regarding the .IR ccTLD Paul is discussing
>> below. So here is our summary of its import:
>>
>>  
>>
>> The latest decision in the ICANN case departed sharply from prior
>> legal precedents. The court looked beyond the narrow issue of whether
>> the .IR ccTLD was attachable property. It assumed, “without
>> deciding,” that “the ccTLDs the plaintiffs seek constitute ‘property’
>> under the Foreign Sovereigns Immunity Act and, further, that the
>> defendant sovereigns have some attachable ownership interest in
>> them.” Thus ICANN’s weak arguments against the property status of
>> TLDs had no impact on the decision. Instead, the court refused to
>> allow the .IR domain to be seized because:
>>
>>  
>>
>> “the court has the “authority” to “prevent appropriately the
>> impairment of an interest held by a person who is not liable
>>
>> in the action giving rise to a judgment” — i.e., we are expressly
>> authorized to protect the interests of ICANN and other entities.
>> Because of the enormous third-party interests at stake—and because
>> there is no way to execute on the plaintiffs’ judgments without
>> impairing those interests—we cannot permit attachment.”
>>
>>  
>>
>> By “requiring ICANN to delegate ‘.ir’ to the plaintiffs,” the court
>> opined, the plaintiffs “would bypass ICANN’s process for ccTLD
>> delegation” and this would have a harmful impact on the global DNS
>> and on ICANN itself.
>>
>>  
>>
>> So, to summarize: TLDs may well be attachable property, but in this
>> case, and in most conceivable ccTLD redelegation cases, the court
>> decided that court-ordered seizure of the ccTLD would impair the
>> interest of ICANN in a globally acceptable delegation process and
>> possible also impair the interest of its registrants.
>>
>>  
>>
>> --MM
>>
>>  
>>
>>  
>>
>> *From:* ws2-jurisdiction-bounces at icann.org
>> [mailto:ws2-jurisdiction-bounces at icann.org] *On Behalf Of *Phil Corwin
>> *Sent:* Wednesday, August 23, 2017 4:04 PM
>> *To:* Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com>
>> *Cc:* ws2-jurisdiction <ws2-jurisdiction at icann.org>
>> *Subject:* Re: [Ws2-jurisdiction] ISSUE: In rem Jurisdiction over ccTLDs
>>
>>  
>>
>> Agree on all 4 points and the conclusion 
>>
>> Philip S. Corwin, Founding Principal
>>
>> Virtualaw LLC
>>
>> 1155 F Street, NW
>>
>> Suite 1050
>>
>> Washington, DC 20004
>>
>> 202-559-8597/Direct
>>
>> 202-559-8750/Fax
>>
>> 202-255-6172/Cell
>>
>>  
>>
>> Twitter: @VLawDC
>>
>>  
>>
>> "Luck is the residue of design" -- Branch Rickey
>>
>>  
>>
>> Sent from my iPad
>>
>>
>> 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 4^th 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
>>
>>     paul.rosenzweig at redbranchconsulting.com
>>     <mailto:paul.rosenzweig at redbranchconsulting.com>
>>
>>     O: +1 (202) 547-0660
>>
>>     M: +1 (202) 329-9650
>>
>>     VOIP: +1 (202) 738-1739
>>
>>     www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
>>
>>     My PGP Key:
>>     https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
>>
>>      
>>
>>     *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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>>              
>>
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>>
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