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

[Raphaël BEAUREGARD-LACROIX]

Dear all,

I apologise in advance for not being able to make it to tomorrow's call
since I will be held at work until late evening CET.

While there will probably be more discussions of this topic tomorrow, I
have prepared a skeleton draft recommendation as a google doc so that we
can start working towards our final objective, since it does seem at this
point that there is a form of consensus emerging on both the fact that this
is an issue and over solutions.

https://docs.google.com/document/d/1xAyla8FTaL7jZ0D2rYtAzQUr3gEnirTKiAG-kqD0ZSs/edit?usp=sharing


To be very honest I do not know of the formal or even substantive
requirements for recommendations, so I just took some ideas from the OFAC
one.

I guess at this point is just for everyone to jump in and contribute, as
this is far from complete (and maybe even accurate.) I will myself be
adding more materials from our discussions into this during the coming
week.

I remember Greg you said you would prepare some form of wrap-up/forward
looking document, in any case (and especially if yours is more fleshed out)
feel free to incorporate whatever can be incorporated from this one into
yours so that we work in a single document.

Best,

Raphael

2017-09-14 17:37 GMT+02:00 Mueller, Milton L <milton at gatech.edu>:

> As long as registries have the choice, a regional "menu" approach seems ok
> to me.
>
> > -----Original Message-----
> > From: Paul Rosenzweig [mailto:paul.rosenzweig at redbranchconsulting.com]
> > Sent: Wednesday, September 13, 2017 11:25 AM
> > To: Mueller, Milton L <milton at gatech.edu>; ws2-jurisdiction at icann.org
> > Subject: RE: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law
> >
> > We can't avoid inconsistency altogether if there is more than one
> jurisdiction
> > involved.  Almost by definition, with more than one jurisdiction
> available the
> > risk of inconsistency and uncertainty is heightened.
> >
> > At the other end of the spectrum is a world with 190+ jurisdictions.  In
> that
> > context the risk of inconsistency is at its maximum.
> >
> > I personally have no concerns about the use of California law
> exclusively.
> > Others in the community, however, do have those concerns.  A menu option
> > with a few regional choices seems to answer those concerns without a huge
> > increase in the risk of inconsistency -- especially if it is accompanied
> by an
> > urge toward uniformity in areas where uniformity is most essential (like
> > operational issues).
> >
> > It is an imperfect solution -- offered in the spirit of compromise, not
> as a
> > canonically correct exposition of principle.
> >
> > 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=0x9A830097CA06
> > 6684
> >
> > -----Original Message-----
> > From: Mueller, Milton L [mailto:milton at gatech.edu]
> > Sent: Wednesday, September 13, 2017 10:22 AM
> > To: Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com>;
> > ws2-jurisdiction at icann.org
> > Subject: RE: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law
> >
> > Very interesting post Paul. But, are you agreeing or disagreeing with the
> > "menu" being based on regions? If you are agreeing, then how do we avoid
> > this problem:
> >
> > > 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.
> > >
>
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-- 
Raphaël Beauregard-Lacroix
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