<html>
<head>
<meta content="text/html; charset=windows-1252"
http-equiv="Content-Type">
</head>
<body bgcolor="#FFFFFF" text="#000000">
<p><font face="Verdana">As I mentioned, the distinction between
public law and private law is for instance spoken of in many
judgements of the highest courts in India, and is in general
understood and public law being that involving the interests of
the state/ society in an issue and private law as only of
specific individual parties. Anyway, since we need to focus on
our task at hand, I will point to what should most matter to us
with regard to this distinction. We are taking about the
jurisdiction issue, and what may need to be and can be done in
this regard about the jurisdiction over ICANN. In this regard
it is most salient that</font></p>
<p><font face="Verdana"> in the application of public law there is
no choice of jurisdiction available to the parties, and they are
subject the jurisdiction of the state where they are located</font></p>
<p><font face="Verdana">in the application of private law, often
though not always a choice of jurisdiction is available to the
parties, especially as and if previously agreed to. <br>
</font></p>
<p><font face="Verdana">anyway, as Milton says, it is more important
to address the kind of scenarios that I have listed.</font></p>
<p><font face="Verdana">thanks, parminder </font><br>
</p>
<br>
<div class="moz-cite-prefix">On Tuesday 11 October 2016 10:53 PM,
Nigel Roberts wrote:<br>
</div>
<blockquote
cite="mid:7d7a53b7-a4ef-16e8-415e-bfe709129ebe@channelisles.net"
type="cite">I do not know if the US has a different definition,
but in the UK 'public law' means law that applies to actions of
the Government.
<br>
<br>
So an action in judicial review to overturn an adverse decision by
an executive branch decision-maker is an action in public law.
<br>
<br>
<br>
<br>
On 11/10/16 16:19, Jeff Neuman wrote:
<br>
<blockquote type="cite">Although I am a properly licensed attorney
in the United States, I am
<br>
not clear on what the definition is of “public law” vs. private
law.
<br>
That is not a concept that I am familiar with. Are talking
about
<br>
statutory law vs. common law, or are we talking about private
causes of
<br>
action vs. government causes of action.
<br>
<br>
<br>
<br>
Sorry, but just trying to wrap my head around this and why it
matters.
<br>
<br>
<br>
<br>
*Jeffrey J. Neuman*
<br>
<br>
*Senior Vice President *|*Valideus USA***| *Com Laude USA*
<br>
<br>
1751 Pinnacle Drive, Suite 600
<br>
<br>
Mclean, VA 22102, United States
<br>
<br>
E: <a class="moz-txt-link-abbreviated" href="mailto:jeff.neuman@valideus.com">jeff.neuman@valideus.com</a>
<a class="moz-txt-link-rfc2396E" href="mailto:jeff.neuman@valideus.com"><mailto:jeff.neuman@valideus.com></a>or
<br>
<a class="moz-txt-link-abbreviated" href="mailto:jeff.neuman@comlaude.com">jeff.neuman@comlaude.com</a> <a class="moz-txt-link-rfc2396E" href="mailto:jeff.neuman@comlaude.com"><mailto:jeff.neuman@comlaude.com></a>
<br>
<br>
T: +1.703.635.7514
<br>
<br>
M: +1.202.549.5079
<br>
<br>
@Jintlaw
<br>
<br>
<br>
<br>
<br>
<br>
*From:*ws2-jurisdiction-bounces@icann.org
<br>
[<a class="moz-txt-link-freetext" href="mailto:ws2-jurisdiction-bounces@icann.org">mailto:ws2-jurisdiction-bounces@icann.org</a>] *On Behalf Of
*Mueller, Milton L
<br>
*Sent:* Tuesday, October 11, 2016 10:51 AM
<br>
*To:* parminder <a class="moz-txt-link-rfc2396E" href="mailto:parminder@itforchange.net"><parminder@itforchange.net></a>;
<a class="moz-txt-link-abbreviated" href="mailto:ws2-jurisdiction@icann.org">ws2-jurisdiction@icann.org</a>
<br>
*Subject:* Re: [Ws2-jurisdiction] Our work so far, and a way
forward
<br>
<br>
<br>
<br>
I don’t think the question of public law is out of
consideration. There
<br>
is much talk of “applicable [public] law” when we consider
dispute
<br>
resolution/choice of law, for example. However, it is not clear
how
<br>
those issues fit into the “jurisdiction layer” model that seems
to be
<br>
clarifying and driving our agenda. So I hope Greg and Vinay can
weigh in
<br>
on that issue for us.
<br>
<br>
<br>
<br>
If I understand you correctly, public law issues are analogous
to a
<br>
“stress test;” there is no major issue with it now, but we need
to
<br>
explore how the new ICANN regime will react if something
happens. E.g.,
<br>
the European Commission opens an antitrust investigation into
ICANN, or
<br>
a (unlikely) Trump administration pushes a bill through Congress
<br>
re-regulating ICANN
<br>
<br>
<br>
<br>
<br>
<br>
*From:*ws2-jurisdiction-bounces@icann.org
<br>
<a class="moz-txt-link-rfc2396E" href="mailto:ws2-jurisdiction-bounces@icann.org"><mailto:ws2-jurisdiction-bounces@icann.org></a>
<br>
[<a class="moz-txt-link-freetext" href="mailto:ws2-jurisdiction-bounces@icann.org">mailto:ws2-jurisdiction-bounces@icann.org</a>] *On Behalf Of
*parminder
<br>
*Sent:* Tuesday, October 11, 2016 3:59 AM
<br>
*To:* <a class="moz-txt-link-abbreviated" href="mailto:ws2-jurisdiction@icann.org">ws2-jurisdiction@icann.org</a>
<a class="moz-txt-link-rfc2396E" href="mailto:ws2-jurisdiction@icann.org"><mailto:ws2-jurisdiction@icann.org></a>
<br>
*Subject:* Re: [Ws2-jurisdiction] Our work so far, and a way
forward
<br>
<br>
<br>
<br>
<br>
<br>
<br>
<br>
On Monday 10 October 2016 10:28 AM, Greg Shatan wrote:
<br>
<br>
All,
<br>
<br>
<br>
<br>
In order to move forward, and based on the discussions so
far, I
<br>
suggest the following approach.
<br>
<br>
<br>
<br>
First, we should continue the current approach of defining
and
<br>
refining the various layers of jurisdiction, and I encourage
you all
<br>
to go to the Google doc and add your views.
<br>
<a class="moz-txt-link-freetext" href="https://docs.google.com/document/d/1oE9xDIAJhr4Nx7vNO_mWotSXuUtTgJMRs6U92yTgOH4/edit?usp=sharing">https://docs.google.com/document/d/1oE9xDIAJhr4Nx7vNO_mWotSXuUtTgJMRs6U92yTgOH4/edit?usp=sharing</a><br>
<br>
<br>
<br>
Second, we won't investigate changing ICANN's headquarters
or
<br>
incorporation jurisdiction at this time. However, it's not
off the
<br>
table -- if we identify an issue during our work and we
can't find a
<br>
less drastic way to deal with that issue, we will revisit
this point
<br>
at that time. We can then revisit the concerns that people
have
<br>
raised regarding such a recommendation in the context of a
<br>
particular issue.
<br>
<br>
<br>
While I can always insert this in the Google doc, I prefer to
first
<br>
discuss this here. (And yes I am repeating it.) The jurisdiction
issue
<br>
is best divided as (1) application of public law, (2)
application of
<br>
private law, (3) the rest of sundry stuff - like about different
global
<br>
offices and interaction with respective domestic jurisdiction
(these are
<br>
of relatively minor significance, and there may not be much to
'decide'
<br>
about them in advance)
<br>
<br>
Place of incorporation and location of HQ (which is almost
always the
<br>
same) may be the proxy for 'application of public law' but they
do not
<br>
necessarily conflate. US government by decree has given
jurisdictional
<br>
immunities even to such bodies that are *not* created under
<br>
international law and simply registered as private bodies, in
the US or
<br>
elsewhere. This certainly is an important possibility to look
into for
<br>
ICANN, which insulates it from application of US public law - in
terms
<br>
of its key organisational activities -- without moving the
headquarters
<br>
or even jurisdiction of incorporation.
<br>
<br>
I will repeat the question I put to the chairs in my last email:
"are we
<br>
considering this issue of application of US public law to ICANN,
and the
<br>
problems that it may cause with respect to its policy processes,
and
<br>
being able to appropriately carry out its global governance
role? "
<br>
<br>
The concerns around application of public law are very different
than
<br>
those of application of private law -- and often different
actors have
<br>
these two different kinds of concerns. Public law also have
application
<br>
over private law cases.
<br>
<br>
If this group does not intend to get into the 'application of
public
<br>
law' question and stick to issues of private law, then let it
decide and
<br>
state as much in clear terms. Such actors whose interest in the
<br>
jurisdiction question comes primarily from the public law aspect
can
<br>
then disengage from spending further time in this process - as
for
<br>
instance I will like to do.
<br>
<br>
Third, we should put aside "confirming and assessing the gap
<br>
analysis" for the moment. There is still a diversity of
views on
<br>
what this "gap analysis" was and what we need to do to
confirm and
<br>
assess it. As a result, our time has been spent discussing
the
<br>
parameters of the assignment, rather than working on the
assignment
<br>
itself. I believe that we will be better able to define the
scope
<br>
of this item and move to substance, if we spend some time
looking at
<br>
the substance of an issue that is clearly within our scope.
<br>
<br>
<br>
<br>
After we finish clarifying the multiple layers of
jurisdiction, we
<br>
should move to an issue that is clearly within our scope --
<br>
something we have to do. That way we can move to the
substance of
<br>
the issue and not spend a lot of time on "scope."
<br>
<br>
<br>
<br>
An issue that is clearly within our scope relates to ICANN's
<br>
jurisdictions for settlement of disputes (i.e., venue and
choice of
<br>
law).
<br>
<br>
<br>
One way is to look at this is as concerning the application of
private
<br>
law on iCANN matters. But then, like in the case of .xxx, what
if the
<br>
dispute invokes a public law (US competition law in this
instance) --
<br>
which one can be assured that every disputant will do as long as
it can
<br>
find a favourable US public law which seems to side with the way
the
<br>
disputant wants things to go. As we explore the issue of
'settlement of
<br>
disputes' are we going to look only to private law part and not
public
<br>
law? That IMHO would be quite inappropriate. But then if we are
going to
<br>
look into both private law and public law elements, the
discussion gets
<br>
messy because private law can involve choice of jurisdiction but
not
<br>
public law. This is why I think it is best if we divide our work
and
<br>
discussions as I suggested above, separately about issues of
public law
<br>
and those of private law.
<br>
<br>
But, as I said before, issues of public law are simply out, let
us then
<br>
be clear about it. I request a clarification by the chairs.
<br>
<br>
There should not be any question that this is within the
scope of
<br>
our group (Annex 12 refers to this as the "focus" for our
group).
<br>
Based on Annex 12, this involves looking at: "The influence
that
<br>
ICANN’s existing jurisdiction" relating to resolution of
disputes
<br>
"may have on the actual operation of policies
<br>
<br>
<br>
Application of US public law on ICANN has enormous influence on
'actual
<br>
operation of (ICANN) policies'. And so we are very much within
our
<br>
mandate in discussing issues arising from 'public law' aspect.
<br>
<br>
and accountability mechanisms." I suggest that we examine
this
<br>
"influence" and determine what this "influence" is. Our
work
<br>
looking at venue and choice of law in the "multiple layers
of
<br>
jurisdiction" will help us in this task.
<br>
<br>
<br>
I gave a few instances in my last email of influence of US
public law on
<br>
operation of ICANN policies. Would these examples qualify to be
<br>
considered under this or not?
<br>
<br>
<br>
<br>
A note on process -- it is very important that we focus on
creating
<br>
written material. In our calls, we should be working on and
working
<br>
from these written materials. Ultimately, these writings
will feed
<br>
into our deliverable. Put another way, you should focus
your
<br>
contributions on adding to the drafts (currently, the
"layers of
<br>
jurisdiction" document), rather than on relying solely on
oral
<br>
interventions in our calls -- after all we have 168 hours in
a week,
<br>
and only 1 hour for our call.
<br>
<br>
<br>
I agree. Calls can only help confirm or resolve some outstanding
issues,
<br>
and lay further directions. What we can accomplish in writing we
should
<br>
do. In that regard, I also think that to th extent issues can be
<br>
addressed and resolved in email exchanges here they best be done
so...
<br>
<br>
Thanks, parminder
<br>
<br>
<br>
<br>
I look forward to our upcoming call.
<br>
<br>
<br>
Best regards,
<br>
<br>
<br>
<br>
Greg
<br>
<br>
<br>
<br>
_______________________________________________
<br>
<br>
Ws2-jurisdiction mailing list
<br>
<br>
<a class="moz-txt-link-abbreviated" href="mailto:Ws2-jurisdiction@icann.org">Ws2-jurisdiction@icann.org</a>
<a class="moz-txt-link-rfc2396E" href="mailto:Ws2-jurisdiction@icann.org"><mailto:Ws2-jurisdiction@icann.org></a>
<br>
<br>
<a class="moz-txt-link-freetext" href="https://mm.icann.org/mailman/listinfo/ws2-jurisdiction">https://mm.icann.org/mailman/listinfo/ws2-jurisdiction</a>
<br>
<br>
<br>
<br>
<br>
<br>
_______________________________________________
<br>
Ws2-jurisdiction mailing list
<br>
<a class="moz-txt-link-abbreviated" href="mailto:Ws2-jurisdiction@icann.org">Ws2-jurisdiction@icann.org</a>
<br>
<a class="moz-txt-link-freetext" href="https://mm.icann.org/mailman/listinfo/ws2-jurisdiction">https://mm.icann.org/mailman/listinfo/ws2-jurisdiction</a>
<br>
<br>
</blockquote>
_______________________________________________
<br>
Ws2-jurisdiction mailing list
<br>
<a class="moz-txt-link-abbreviated" href="mailto:Ws2-jurisdiction@icann.org">Ws2-jurisdiction@icann.org</a>
<br>
<a class="moz-txt-link-freetext" href="https://mm.icann.org/mailman/listinfo/ws2-jurisdiction">https://mm.icann.org/mailman/listinfo/ws2-jurisdiction</a>
<br>
<br>
</blockquote>
<br>
</body>
</html>