[Ws2-jurisdiction] [EXTERNAL] issues on applicable law

Mon Sep 11 05:12:38 UTC 2017

Dear Beckie
Thanks for your views to which I totally disagree as a) thgere is no
regional jurisdiction and b) there is no agreed definition of region. It is
Strange that such a competent person like you taking about Something which
does  not  exist t and can not exist as region is a term totally
subjdective and can in no way be used for jurisdiction
Kavouss

On Thu, Sep 7, 2017 at 1:55 PM, Burr, Becky via Ws2-jurisdiction <
ws2-jurisdiction at icann.org> wrote:

> FWIW, punitive damages are not usually permitted in contract disputes – I
> wonder why ICANN includes them at all.
>
> Also, rather than requiring ICANN to agree to submit to the jurisdiction
> of every country where it has a relationship with a registry or registrar,
> is it worth considering regional jurisdiction?  Contracts with European
> registries and registrars could specify Swiss or Dutch or some other law,
> etc.?
>
> *J. Beckwith Burr*
> *Neustar, Inc.* / Deputy General Counsel & Chief Privacy Officer
> 1775 Pennsylvania Avenue NW DC 20006
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>
>
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> From: <ws2-jurisdiction-bounces at icann.org> on behalf of "
> Jorge.Cancio at bakom.admin.ch" <Jorge.Cancio at bakom.admin.ch>
> Date: Wednesday, September 6, 2017 at 4:19 PM
> To: "ws2-jurisdiction at icann.org" <ws2-jurisdiction at icann.org>
> Subject: [EXTERNAL] [Ws2-jurisdiction] issues on applicable law
>
> Dear all,
>
>
>
> Here are, for your convenience, the two issues I have tried to briefly
> explain during today’s conference call, for your consideration.
>
>
>
> As said, the main thought is to reduce uncertainty, and clarify that the
> parties to the registry agreements have an effective freedom to choose the
> applicable law and to apply a principle of subsidiarity that may reduce
> potential conflicts with the national laws where they are based.
>
>
>
> ==
>
>
>
> 1.    *Issue: *The law applicable to the Registry Agreement has been
> identified as being the main issue:
>
>
>
> The Registry Agreement contains no provision relative to the choice of
> jurisdiction, the applicable law consequently not being defined by the
> Agreement.
>
> This creates great legal uncertainty and a potential issue as regards the
> jurisdiction given that it would be the prerogative of the arbitrators or
> the judges having jurisdiction -who could come from a US Court- to
> determine what law governs the relationship between ICANN and the registry.
>
> Pursuant to the current business practice, the applicable law is that of
> the party that provides the service in question, i.e. ICANN, a priori. A
> registry should therefore expect the potentially applicable law to be the
> law of the State of California.
>
> The applicable law further determines the faculty of ICANN to claim
> punitive or exemplary damages (i.e. under US law, damages highly surpassing
> the damage actually suffered, in order to punish a behavior), in the event
> the registry were to breach the contract in a deliberate and repeated
> manner (section 5.2 of the Registry Agreement.) This well-established
> institution of Common Law is non-existent under Swiss law, which follows
> the principle of compensation (damages are used to repair the damage but
> cannot enrich the claimant,) and should be considered to be contrary to
> public order. Were the Swiss law to apply to the Agreement, such damages
> would not be granted. Following the principles of the institutions typical
> to the Common Law provided for in the Registry Agreement poses issues of
> compatibility with other legal orders and suggests that Californian law
> would -a priori- apply to the Registry Agreement.
>
>
>
> *Possible solutions:*
>
>
>
> The applicable law should be determined on the basis of the legitimate
> expectations which the parties may have in terms of applicable law. It is
> understandable and appropriate that the fundamental provisions or duties
> contained in the Registry Agreement should apply equally to all registries
> around the world and be therefore interpreted in a uniform way.
>
>
>
> Beyond a few provisions and duties which are absolutely fundamental, it
> would be judicious and consistent with a legitimate expectation that the
> contractual relationship between ICANN and a registry be subject to the
> national law of the latter. The foregoing is all the more reasonable given
> that the manager of a generic domain (TLD) is delegated broad powers, as it
> is within its scope to establish the purpose of the domain, the
> eligibility, or the terms of the assignment of domain names, not to mention
> that it has great freedom as to the way in which a domain is actually
> managed.
>
>
>
> There already exist special provisions for registries that are
> IGO/Governmental entities (section 7.16 registry agreement): if
> international law is at stake, there is a procedure (mediation and
> arbitration ex 5.2.) to resolve disputes between the registry and ICANN –
> this special provision could be extended:
>
> -           To other registries that are not IGOs/Public authorities
>
> -           To cover not only “international law obligations” but also
> national law obligations
>
>
>
>
>
> 2.    *Issue: **arbitration clause*
>
>
>
> With regard to territorial jurisdiction, the arbitration clause (section
> 5.2 of the Registry Agreement entitled "Arbitration text for
> intergovernmental organizations or governmental entities") has allowed the
> ".swiss" registry to submit itself to the arbitration of the International
> Court of Arbitration of the International Chamber of Commerce in Geneva,
> Switzerland. This provision also provides for some flexibilities restricted
> to IGOs or governmental entities as regards the competent court.
>
>
>
> However these flexibilities are not open to all registry operators.
>
>
>
> *Possible solutions:*
>
>
>
> It would be wise in our opinion:
>
> - to also allow private registries to decide on the choice of their
> arbitration/competent court;
>
> - to broaden the possibilities of choice for all registries (by principle,
> to choose an arbitration recognized in each country.)
>
>
>
>
>
> ==
>
>
>
> Hope this may be considered.
>
>
>
> Regards
>
>
>
> Jorge
>
>
>
>
>
>
>
>
>
> *Jorge Cancio *
>
>
>
> International Relations
>
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>
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