[Ws2-jurisdiction] Domain names 'located' within the US

[Nigel Roberts]

Parminder

I feel this continued flagellation of deceased members of the genus 
Equus is getting somewhat repetitive.

But I'll give this another shot, for the sheer fun of it.

The courts of ANY other country in which ICANN would or should be 
iincorporated would have exactly the same superior and exclusive rights 
in theory.

It may be so (that just as an example) Swiss law, and jurisdiction might 
have been more acceptable as ICANN's seat to many countries which are 
antipathetic to the United States.  I fact I argued for Switzerland 
during the IFWP, so you can be assured I have been conscious of this 
issue for over 20 years.

But complaining that ICANN is subject to US courts is just a "two legs 
bad, four legs good" comparison.

The essential factors are a mature jurisdiction in a country that runs 
on the Rule of Law.

As you know, we are where we are because of a number of historical 
factors, including where Saint Jon lived and worked, and (in my mildly 
cynical view) clever manoeuvres by certain key players back in 1998. (Hi 
Becky!).

But ICANN would have to have been incorporated SOMEWHERE.

There is no way round this, unless you set your face (as I get the 
impression you may have done) against the whole concept of 
multistakeholder management of internet names and numbers, and propose 
that ICANN should exist as a multilateral organisation, such as the
United Nations.

Those of use who have spent several decades advocating for 
multistakeholderism would, respectfully, hold a different view.



Nigel



> Thiago's email describes cases which clearly show that US public
> policies, law and courts have a superior and somewhat exclusive right to
> direct ICANN's actions, over that or any other jurisdiction
> (representing the corresponding country's sovereign will). This goes to
> the heart of the jurisdiction question that is the mandate of this
> group. This is unjust, and not acceptable, and therefore this group must
> look at options that are more just to everyone.
>