[Ws2-jurisdiction] Case summary - 2 drafts for your review
Mathieu Weill
mathieu.weill at afnic.fr
Sat Jan 28 00:34:10 UTC 2017
This seems sensible to me as far as this question on Governing Law / Choice
of Law is concerned, thanks !
De : Paul Rosenzweig [mailto:paul.rosenzweig at redbranchconsulting.com]
Envoyé : vendredi 27 janvier 2017 20:44
À : 'Greg Shatan'
Cc : 'Mathieu Weill'; 'ws2-jurisdiction'
Objet : RE: [Ws2-jurisdiction] Case summary - 2 drafts for your review
That certainly seems sensible to me – especially since the word we are using
for the overarching discussion “jurisdiction” means both types of legal
control … substantive and procedural
P
Paul Rosenzweig
<mailto:paul.rosenzweig at redbranchconsulting.com>
paul.rosenzweig at redbranchconsulting.com
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<http://www.redbranchconsulting.com/> www.redbranchconsulting.com
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From: Greg Shatan [mailto:gregshatanipc at gmail.com]
Sent: Friday, January 27, 2017 2:09 PM
To: Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com>
Cc: Mathieu Weill <mathieu.weill at afnic.fr>; ws2-jurisdiction
<ws2-jurisdiction at icann.org>
Subject: Re: [Ws2-jurisdiction] Case summary - 2 drafts for your review
For the Choice of Law/Governing Law field, the primary answer I intended to
put there was what law was actually applied to the case. Secondarily, I
intended the answer to indicate if a Choice of Law provision had been
invoked.
The issue of whether a conflict of laws analysis was done by the court (and
under what law), and whether a contractual choice of law provision was
involved, are related but distinct issues.
On this basis, the expected answer would have been: "California" (assuming
the case was decided under California law). Secondarily, the answer could
have indicated that California law was applied because there was a
contractual Choice of Law provision agreed by the parties.
Perhaps we need to tweak this question and break it into two questions, so
we can be clear in the answers:
Governing Law applied: [Here, put the law actually applied in the case]
Conflicts of Law analysis/Choice of Law provision?: [Here, indicate if the
documents show that governing law was determined through a conflicts of law
analysis, and whether a Choice of Law provision was present.]
Thoughts?
Greg
On Thu, Jan 26, 2017 at 1:44 PM, Paul Rosenzweig
<paul.rosenzweig at redbranchconsulting.com> wrote:
Mathieu
Thanks for this. I think your detail level is appropriate. Reading what
you have done leads me to two questions about the form generally that might
be of value in considering:
1. One section of the form refers to “Choice of Law/Governing Law” – I think
that in filling this out we risk conflating two distinct legal issues – what
law governs the dispute (the substantive law to apply) and what law controls
choosing the governing law (i.e. procedurally, what choice of law rules
govern choosing the applicable law). For example, a law suit in California
state will often apply California state law in deciding what law to choose
to govern the dispute – but that California law may often result in
identifying the governing law as the law of some other jurisdiction. A
perfect example is a contract dispute that says “this contract is governed
by the laws of France.” California law on choosing law says “the choice of
the parties in a contract should be given effect” and so a law suit between
two parties in California would result in the California court using French
law to resolve the dispute. In your two cases this made a difference in the
Verisign case where California law applied to choose law, but the choice was
Federal antitrust. I think we should distinguish between them
2. In the “Effect on our Work” section I wonder at how you handled it. For
me, the answer in the Arizona case would be “none” since the suit was
dismissed early. To be sure you write of its potential effect – which had
it succceded would have been significant. But that gives too much credit to
the filing of a suit doesn’t it? Shouldn’t our inquiry be whether or not
the exisiting legal system adequately protects our work from non-meritorious
interference. And so, shouldn’t the Arizona case be a good sign that, at
least in this case, the court reached a result that had no impact?
Paul
Paul Rosenzweig
<mailto:paul.rosenzweig at redbranchconsulting.com>
paul.rosenzweig at redbranchconsulting.com
O: +1 (202) 547-0660 <tel:(202)%20547-0660>
M: +1 (202) 329-9650 <tel:(202)%20329-9650>
VOIP: +1 (202) 738-1739 <tel:(202)%20738-1739>
<http://www.redbranchconsulting.com/> www.redbranchconsulting.com
My PGP Key:
<https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684>
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From: ws2-jurisdiction-bounces at icann.org
[mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of Mathieu Weill
Sent: Wednesday, January 25, 2017 6:35 PM
To: ws2-jurisdiction at icann.org
Subject: [Ws2-jurisdiction] Case summary - 2 drafts for your review
Dear Colleagues,
During a long flight today, I tried to apply our case summary form to two of
the past ICANN litigations. Both forms are attached for :
* The State of Arizona vs NTIA case in Sep 2016 (I guess many of us are
familiar with this case)
* The 2004-2006 Verisign vs ICANN case
I’d appreciate feedbacks from the group regarding whether the detail level
is appropriate, and whether the information is relevant to the various
questions. Thank you for your understanding if there are any confusions due
to my lack of legal skills.
Best,
--
*****************************
Mathieu WEILL
AFNIC - directeur général
Tél: +33 1 39 30 83 06 <tel:+33%201%2039%2030%2083%2006>
mathieu.weill at afnic.fr
Twitter : @mathieuweill
*****************************
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