[CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT Session #18 31 March

Mon Apr 6 21:55:23 UTC 2015

All,

Please permit me a few thoughts *On 'Jurisdiction'*.

In my opinion, discussions of "jurisdiction" can only be useful and
worthwhile if the following criteria are present:

A. *Use the Word "Jurisdiction" Accurately*.  The participants must be
clear and consistent in the meaning and use of the term "jurisdiction."
 Too often, they are not. As Bruce Tonkin (among others) has pointed out,
"jurisdiction" has several meanings, which are essentially separate from
each other.  To paraphrase Bruce's list (I may be leaving something out,
for which I apologize):

1.  *Legal Establishment*:  The country (and in a federal system the
state/province/etc.) in which an entity is legally incorporated or
established.
2.  *Physical Domicile and/or Location*: The country (or countries) (and in
a federal system the states/provinces/etc.) in which an entity is (a)
physically headquartered/"domiciled" and/or (b) located.
3.  *Legal Recourse/Venue (Ability to Sue or Be Sued)*: The country (or
countries) (etc.) (or other forums, such as international courts and
tribunals) where an entity can (a) sue and/or (b) be sued.  May be
specified in contracts, but also a matter for legal determination.
4.  *Choice of Law*:  The country (etc.) whose laws will govern a
contract.  Often specified in contracts, but may also be a matter for legal
determination.

As an example (and as Avri and David pointed out), discussions that start
out with concerns or claims about the location of Legal Establishment or
Physical Domicile, can turn out to be about Legal Recourse.  I am tempted
to suggest that the word "jurisdiction" be retired from our conversations,
and that one of these more discrete terms be used instead.  That way we
would know what we are talking about when we talk about "jurisdiction."

As another example, it is quite possible (and quite common) to have an
entity incorporated in Delaware, headquartered in New York, with locations
in 50+ countries (some of which could be subsidiaries incorporated in those
countries).  This entity could then enter into a contract under French law
requiring that cases arising under the contract be litigated in the U.K.  A
third party, affected by the contract sues in Morocco, where the entity has
a physical location.  What is the jurisdiction of the entity?

B. *Identify the Problem to be Solved*.  Discussions of "jurisdiction"
really need a *clear* and *accurate* statement of the problem to be
resolved. Too often, these conversations start out with general concerns
about "jurisdiction," (often, but not always, asserting that U.S. or
"Californian" "jurisdiction" is problematic or undesirable), but don't
clearly state what the problem is.  Or, if they do, it tends to be
inaccurate, speculation or FUD.  Overblown and highly speculative claims
and extrapolation from facts (or "facts") to extreme consequences are also
a common problem.  If we don't know what the specific problem or concern
is, the conversation will tend to deteriorate or dissolve.  In contrast, a
clear, accurate statement of a problem should provide the basis for useful
discussion.  Focusing on a particular problem or closely related problem
set also helps.

C. *Use Accurate Statements of Facts*.  This problem begins with inaccurate
and overblown problem statements, but it is compounded when the responses
(pro and con), also misstate facts (intentionally or not) and extrapolate
from their own "facts" or those on the other side.  Let's stick to the
facts, even if it makes it harder to shoot from the hip. (Conversely, let's
be tolerant of minor, unintentional inaccuracies.)  Intentionally claiming
something to be a fact when it is not is particularly counterproductive;
although it is an interesting rhetorical tactic, it impedes the search for
truth and for common ground.

D. *Say Something about the Solution*.  To set the discussion on the right
track, it's really important that the originator tries to make a *clear*
and *factually-grounded* statement of what a solution needs to accomplish.
This is not merely a corollary of (B). Since this is primarily a practical
discussion, not a philosophical one, solutions are critical.  Throwing
problems at the group with no hint of a what a solution should include and
achieve doesn't really help.  It leaves the others "grasping at straws,"
rather than solving the problem. There doesn't need to be a ton of detail
-- just enough to get people going in the right direction.  However, it's
important that the solution be concrete and grounded in fact -- it's almost
as unhelpful to throw out a broad principle or concept which may or may not
exist or practically be available (e.g., "international jurisdiction") or
to claim that there's a better "jurisdiction" (place of legal
establishment) without being specific about which potential jurisdictions
to consider or why they are "better."

Even if discussions of "jurisdiction" meet all these criteria, there is
plenty of room for discussion, disagreement and development -- but at least
it is more likely to be productive and not a waste of time.  Where one or
more of these criteria is absent, the discussion tends to get mired down in
misunderstandings and attempts to clarify what flavor of "jurisdiction" is
being discussed, in debunking of each other's "facts," in nebulous
philosophical concerns, and in unsupported assertions that the "grass is
greener" somewhere else.  Ultimately, the discussion might get back on
track, but the amount of time and effort necessary to work out what the
problem is, what kind of "jurisdiction" it relates to, and how the problem
might be solved -- in other words, to get the discussion to the "starting
line" -- is just a huge waste of resources.

Unfortunately, I think this current thread is in danger of failing on all
four criteria.  Efforts are being made to rehabilitate it, and I may join
them.  In any event, I would urge the participants in this and other
"jurisdiction" discussions to give some consideration to my thoughts here,
and to make efforts to adopt these criteria when "jurisdiction" is being
discussed.

Thank you for indulging me if you have read this far.

Greg Shataqn

On Mon, Apr 6, 2015 at 1:37 PM, Paul Rosenzweig <
paul.rosenzweig at redbranchconsulting.com> wrote:

> +1.  For accountability purposes, the key is making sure the IRP has
> adequate remit to address all issues of concern and adequate enforceability
> of its judgments.  I doubt that we will ever have enforceability against
> sovereign nations except to the extent they agree to be bound -- but all
> other parties ought to be bindable as a condition of participation,
> including ICANN ...
>
> Paul
>
> Paul Rosenzweig
> paul.rosenzweig at redbranchconsulting.com
> O: +1 (202) 547-0660
> M: +1 (202) 329-9650
> VOIP: +1 (202) 738-1739
> Skype: paul.rosenzweig1066
>
>
> -----Original Message-----
> From: McAuley, David [mailto:dmcauley at verisign.com]
> Sent: Monday, April 6, 2015 11:10 AM
> To: accountability-cross-community at icann.org
> Subject: Re: [CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT
> Session #18 31 March
>
> Speaking here of my personal opinion, I agree with Bruce that jurisdiction
> (in terms of where states, IGOs, and other stakeholders might be able to
> take issues to a "jurisdictionally appropriate" court) is less about where
> ICANN is physically located/incorporated and more about the ability of
> affected parties to use courts that are appropriate for them.
>
> Sidley/Austin, the lawyers advising the CWG (and the CCWG in conjunction
> with the Adler firm), noted during the CWG meeting in Istanbul that
> canvassing the laws of all possible countries in this respect can get very
> costly very quickly and add to that that it would be very time-consuming.
>
> I would argue that the outcome of any such research may not be that clear
> in
> any event - concepts of jurisdiction for waging lawsuits are changing as
> the
> world economy becomes more and more digital.  ICANN is probably already
> subject to jurisdiction for litigation in a whole lot of places around the
> globe (the answer won't become absolutely clear vis-a-vis any particular
> country until litigation on the issue occurs there and jurisdiction is
> addressed by the court).
>
> And so my answer to Bruce's suggestion that the CCWG could perhaps get
> legal
> advice on how to ensure access to appropriate courts would be to instead
> ensure that IRP has scope to consider issues of substance and that a way be
> found to have IRP rulings enforced. It seems to me that that would be
> better
> than canvassing endless and possibly opaque laws from around the world.
>
> David McAuley
>
> -----Original Message-----
> From: accountability-cross-community-bounces at icann.org
> [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of
> Bruce
> Tonkin
> Sent: Sunday, April 05, 2015 7:09 PM
> To: accountability-cross-community at icann.org
> Subject: Re: [CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT
> Session #18 31 March
>
> Hello Avri
>
>
> >> On Jurisdiction:
>
> I agree that this is a basic topic that still needs to be covered.  I
> believe it is about making sure that any of the stakeholders has a chance
> to
> argue their case in a jurisdictionally appropriate venue. For States and
> IGOs, that is not generally the US court system. A solution for this does
> seem to be a necessary part of any accountability solution.
>
> I think you have stated the problem well here.   It might be an area where
> the CCWG can get some legal advice on how to ensure the above can be
> achieved.   Ie it is less about where ICNAN is physically located or
> incorporated - and more about the ability of affected parties to use courts
> that are appropriate for them.
>
> Regards
> Bruce Tonkin
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-- 

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