[Ws2-jurisdiction] [EXTERNAL] issues on applicable law
Greg Shatan
gregshatanipc at gmail.com
Mon Sep 11 21:13:19 UTC 2017
It would be really helpful if some of the* registrars and gTLD registry
operators *in this group could provide their perspective on the issue of
choice of governing law and venue in ICANN contracts! If need be, I will
send the request to the CCWG Plenary and/or the RrSG and RySG, but it makes
sense to start within the Subgroup. I look forward to responses.
Greg
On Mon, Sep 11, 2017 at 4:59 PM, Mike Rodenbaugh <mike at rodenbaugh.com>
wrote:
> Note that ICANN already has assumed potential contractual liability in --
> at least -- every country of any Registry Operator, since no Registry
> Agreement requires any forum for dispute, nor choice of law. So far, there
> has been no chaos, and afaik only two lawsuits by Registry Operators (both
> in the US - .Africa and Donuts).
>
> So, maybe it is best to leave it open in ICANN's contracts, allowing them
> to be sued (at least) in both the US and/or the RO's country.
>
>
> Mike Rodenbaugh
> RODENBAUGH LAW
> tel/fax: +1.415.738.8087 <(415)%20738-8087>
> http://rodenbaugh.com
>
> On Mon, Sep 11, 2017 at 1:52 PM, Phil Corwin <psc at vlaw-dc.com> wrote:
>
>> Well put -- especially " ambiguity and uncertainty are the enemy of
>> accountability".
>>
>> 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
>>
>>
>> -----Original Message-----
>> From: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounc
>> es at icann.org] On Behalf Of Paul Rosenzweig
>> Sent: Monday, September 11, 2017 2:51 PM
>> To: 'Nigel Roberts'; ws2-jurisdiction at icann.org
>> Subject: Re: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law
>>
>> All
>>
>> This is a fascinating discussion at any number of levels.
>>
>> I begin with the proposition that in general the parties to a contract
>> are free to choose the manner and forum within which to resolve any
>> disputes that might arise. They may choose arbitration or litigation.
>> They may specify a venue and they may specify a choice of law. I have even
>> seen cases in which they pre-specify the arbitrator by name. We might say
>> that ICANN's choice not to choose (and the RAs agreement to that) is just
>> the nature of contracts.
>>
>> That, however, would be incomplete since, in this instance, ICANN
>> operates as a monopoly (technically a monopsony, but that's not really
>> relevant) and thus, RAs have essentially no negotiating power. We may
>> infer from ICANNs choice that it views the current ambiguous state of
>> affairs as to its benefit. But ambiguity and uncertainty are the enemy of
>> accountability and thus, I support the idea, generally, of pushing ICANN to
>> specify how and under what law disputes with it will be resolved.
>>
>> That then leads us to the hard question -- which law? We cannot
>> reasonably ask ICANN to assume potential liability under 190+ different
>> legal systems for contractual disputes. And we cannot, from an
>> accountability perspective, want a world in which there are inconsistent
>> results and how a contract provision is enforced depends on whether the
>> suit is brought in Europe or in Asia. That type of uncertainty is also the
>> enemy of accountability. Thus, I disagree with the submission that the
>> presumption should be that the law of the registry apply to the agreement.
>> That way lies chaos.
>>
>> But we also cannot expect, at least not in this forum, to agree on which
>> law should apply. It strikes me that the reasonable compromise answer is
>> for this subgroup and CCWG to recommend that ICANN develop a menu of
>> options for choice of law and choice of arbiter. With a broad enough group
>> (of say 4-6) we might minimize divergence while allowing registries some
>> choice in how their contracts will be judged.
>>
>> Paul
>>
>> Paul Rosenzweig
>> paul.rosenzweig at redbranchconsulting.com
>> O: +1 (202) 547-0660
>> M: +1 (202) 329-9650
>> VOIP: +1 (202) 738-1739
>> www.redbranchconsulting.com
>> My PGP Key:
>> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
>>
>> -----Original Message-----
>> From: ws2-jurisdiction-bounces at icann.org
>> [mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of Nigel Roberts
>> Sent: Monday, September 11, 2017 6:19 AM
>> To: ws2-jurisdiction at icann.org
>> Subject: Re: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law
>>
>> I see no reason whatsoever to limit the forum. Admiralty/maritime cases
>> have a shopping list of jurisdictions that are well-versed in marine cases
>> which are (I think)
>>
>> New York
>> London
>> Cairo
>>
>> and maybe a couple of others.
>>
>> And the parties can choose.
>>
>> As ICANN is better placed to handle other fora, the other party should
>> have a free choice.
>>
>>
>> On 11/09/17 09:46, Raphaël BEAUREGARD-LACROIX wrote:
>> > Kavouss,
>> >
>> > I believe that was Becky was suggesting was an adaptation of
>> > applicable law according to pre-defined regions in the worldYou
>> >
>> > For example, all registries in Europe could enter into a RA whose
>> > governing law would be Dutch law while North American registries would
>> > have US law as governing law, and then the community could provide
>> > input on which governing law they would want to have on a regional
>> basis.
>> >
>> > The same could go with courts, as I and Eric mentioned as well.
>> >
>> > Obviously defining regions is somewhat arbitrary, but the community
>> > could also provide input on that.
>> >
>> > I still think that the RAs are drafted accoding to an American style
>> > and would be better served by California law governing, while there
>> > could be more flexibility on the choice of forum.
>> >
>> > Best,
>> >
>> > 2017-09-11 7:19 GMT+02:00 Schweighofer Erich
>> > <erich.schweighofer at univie.ac.at
>> <mailto:erich.schweighofer at univie.ac.at>>:
>> >
>> > Dear all,
>> >
>> > __ __
>> >
>> > I would support Beck Burr. It makes good sense to recommand regional
>> > arbitration courts that know the ICANN system and are established in
>> > jurisdictions with only necessary interference in arbitation (e.g.
>> > due process, transparency, rule of law).
>> >
>> > __ __
>> >
>> > Best,
>> >
>> > Erich
>> >
>> > __ __
>> >
>> > *Von: *Kavouss Arasteh <mailto:kavouss.arasteh at gmail.com>
>> > *Gesendet: *Montag, 11. September 2017 07:12
>> > *An: *Burr, Becky <mailto:Becky.Burr at team.neustar>;
>> ws2-jurisdiction
>> > <mailto:ws2-jurisdiction at icann.org>
>> > *Betreff: *Re: [Ws2-jurisdiction] [EXTERNAL] issues on applicable
>> > law
>> >
>> > __ __
>> >
>> > 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 <mailto: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
>> > *Office:***+1.202.533.2932 *Mobile:***+1.202.352.6367____
>> >
>> >
>> > *Follow Neustar:*LinkedIn*/* Twitter
>> > Reduceyour environmental footprint. Print only if necessary.
>> > ____
>> >
>> >
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>> >
>> >
>> > From: <ws2-jurisdiction-bounces at icann.org
>> > <mailto:ws2-jurisdiction-bounces at icann.org>> on behalf of
>> > "Jorge.Cancio at bakom.admin.ch
>> > <mailto:Jorge.Cancio at bakom.admin.ch>"
>> > <Jorge.Cancio at bakom.admin.ch <mailto:Jorge.Cancio at bakom.adm
>> in.ch>>
>> > Date: Wednesday, September 6, 2017 at 4:19 PM
>> > To: "ws2-jurisdiction at icann.org
>> > <mailto:ws2-jurisdiction at icann.org>" <
>> ws2-jurisdiction at icann.org
>> > <mailto: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____
>> >
>> > Federal Department of the Environment,
>> > Transport, Energy and Communications DETEC ____
>> >
>> > Federal Office of Communications OFCOM____
>> >
>> > Zukunftstrasse 44, CH 2501 Biel ____
>> >
>> > Tel. +41 58 460 54 58 <+41%2058%20460%2054%2058> (direct) ____
>> >
>> > Tel. +41 32 327 55 11 <+41%2032%20327%2055%2011> (office) ____
>> >
>> > Fax +41 58 460 54 66 <+41%2058%20460%2054%2066> ____
>> >
>> > mailto: jorge.cancio at bakom.admin.ch
>> > <mailto:mailto:%20jorge.cancio at bakom.admin.ch>____
>> >
>> > www.bakom.admin.ch
>> >
>> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.
>> bakom.admin.ch_&d=D
>> wMFAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmr
>> xdYahOP8WDDkMr4k
>> &m=WCjv7z0Nza1tNJQJiHnGUpHMklTqTn52IfIOcBKzBtw&s=3nEqt43-
>> 48p3-o5fgYdwVLwTOmy
>> BSWh5nAGRz6Iegyo&e=
>> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.bakom.admin.ch_&d=DwMFAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=WCjv7z0Nza1tNJQJiHnGUpHMklTqTn52IfIOcBKzBtw&s=3nEqt43-48p3-o5fgYdwVLwTOmyBSWh5nAGRz6Iegyo&e=>
>> >____
>> >
>> > __ __
>> >
>> > cid:image001.png at 01D2F585.7A604270____
>> >
>> > __ __
>> >
>> > Igf2017.swiss
>> >
>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__
>> igf2017.swiss_&d=DwMFA
>> g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYa
>> hOP8WDDkMr4k&m=W
>> Cjv7z0Nza1tNJQJiHnGUpHMklTqTn52IfIOcBKzBtw&s=0es-R80LxKqpCDN
>> cQ2Rk6O0ALSAJloN
>> eMjjkepYX-Qk&e=
>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__igf2017.swiss_&d=DwMFAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=WCjv7z0Nza1tNJQJiHnGUpHMklTqTn52IfIOcBKzBtw&s=0es-R80LxKqpCDNcQ2Rk6O0ALSAJloNeMjjkepYX-Qk&e=>
>> >____
>> >
>> > info at igf2017.swiss <mailto:info at igf2017.swiss>____
>> >
>> > __ __
>> >
>> >
>> > _______________________________________________
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>> >
>> >
>> >
>> > --
>> > Raphaël Beauregard-Lacroix
>> > LinkedIn
>> > <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/
>> > >-
>> > @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
>> >
>> >
>> >
>> >
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