[CCWG-ACCT] premature jurisdiction debates

Wed Jul 13 08:10:44 UTC 2016

I completely agree with the following:"jurisdiction is the application of political-legal power/ authority over ICANN's work. it is not an internal issue for the so called ICANN community. it is most certainly something that fully involves the larger global public. The manner in which this topic is dealt by WG2 will be watched closely as a judgement on ICANN's processes in the eyes of the global public.And I think, that this is the core issue, as well as, the main pillar that should support interests in a multi stakeholder system, as long as there is no global legislation to deal with such legal conflicts.SincerelyMona 

From: jolufuye at kontemporary.net
To: parminder at itforchange.net; psc at vlaw-dc.com; wolfgang.kleinwaechter at medienkomm.uni-halle.de; asoto at ibero-americano.org; paul.rosenzweig at redbranchconsulting.com; accountability-cross-community at icann.org
Date: Tue, 12 Jul 2016 06:13:32 -0700
Subject: Re: [CCWG-ACCT] premature jurisdiction debates

Hi Parminder et al,
As a small business owner in a developing country, I'm very much interested in the predictability and stability of my operating environment wherein I can get justice and in a timely manner. 
Having followed the discussions so far, it is important to know that at this point in time, the existing jurisdiction of ICANN for the nature of my business is quite suitable. In fact, it compares favorably with my primary jurisdiction of business (Nigeria). If the jurisdiction of ICANN shifts to Nigeria, I don't mind. However, the option you suggested is no doubt innovative but unworkable at this moment for an SME like mine. At the same time, I do not object to interested individual/s or group focusing on the International option you canvassed but at this present time the current jurisdiction serves business interest.
With respect to the scenarios you mentioned, I think what is key is getting justice at the end of the day and in the jurisdiction under discourse, justice can be obtained if pursued and it is predictable to a large extent.
Cheers,
JO

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-------- Original Message --------

Subject: Re: [CCWG-ACCT] premature jurisdiction debates

From: parminder <parminder at itforchange.net>

Date: Mon, July 04, 2016 6:32 am

To: Phil Corwin <psc at vlaw-dc.com>,        Kleinwächter,_Wolfgang

<wolfgang.kleinwaechter at medienkomm.uni-halle.de>,        Alberto Soto

<asoto at ibero-americano.org>,        Paul Rosenzweig

<paul.rosenzweig at redbranchconsulting.com>,       

"accountability-cross-community at icann.org"

<accountability-cross-community at icann.org>

 On Wednesday 29 June 2016 04:35 PM, Phil Corwin wrote:
     With all respect, the reason that many of us regard this discussion as nonproductive is that no compelling case has been made for embarking on the path proposed, and no proper recognition has been made by the proponent of the costs and difficulties involved.   
 As for "making a compelling case", Phil, you could not have failed to notice that I have, repeatedly, provided some scenarios whereby ICANN will "have to" change its DNS policies bec of US interference. These scenarios have also been shown to be extremely likely. I asked for responses to the scenarios I presented - "are they unlikely, if so why and how?", and if true "do you accept ICANN changing its DNS policy / practice under such jurisdictional interference as being fine and acceptable?". None have responded. I have even suggested referral of these scenarios to official legal advisers to this process. Again no response. In the circumstances, I find your summary judgement of "no compelling case is made"  as hasty, arbitrary, and with no substance.

 Then, about "recognition...of the costs and difficulties" involved: The process of arriving at the "institutional architecture" that I propose may need no more time nor more resources than the period we have already spent in the current transition process. As for the costs of the maintaining such an "institutional architecture", again it would need to be no more that the current expenditure, especially if we account for the costs of the most expensive legal system in the world (the US) and innumerable court cases expected with the 100s of new gTLDs, and more coming soon. So, again, your summary judgement is hasty, arbitrary, and without substance, which is to be expected because it hurries to conclusions without getting into a good discussion, with fair consideration of the other view.  (And you and others want to pay no attention to the "cost and difficulties" of running a global governance system that submits to the authority of one nation's jurisdiction.)

 The issue as I see it at this stage has gone beyond what jurisdiction for ICANN is best. The main issue now is about the way the discussion on this subject is being conducted. It is clear that all views are welcome, as long as they stick to the ICANN jurisdictional status quo (what they used to say about the color of Ford cars!). Any view not conforming to this base condition will be summarily and energetically thrown off, with repeated, impatient, accusations of it being irrelevant, wasteful, unproductive, and so on..... 

 If the only productive argument in this discussion can be such that proceeds from accepting the current jurisdictional status quo, and makes no case to the contrary, one is unable to understand what exactly is the 'jurisdictional' discussion in WG 2 supposed to be about?

 I will request those responsible for holding this process together, the Chairs, and others, to clarify this issue.

 Such early and strong impatience with any views that go beyond jurisdictional status quo, plus the manner in which the key aspects of the issue disappeared from the note on WG 2 that got circulated recently, and from what I hear about various pronouncements of key people at Helsinki, puts one in great doubt about the nature and purpose of the so called 'jurisdictional issue' as an item of discussion for WG 2. 

 People here must remember, jurisdiction is the application of political-legal power/ authority over ICANN's work. it is not an internal issue for the so called ICANN community. it is most certainly something that fully involves the larger global public. The manner in which this topic is dealt by WG2 will be watched closely as a judgement on ICANN's processes in the eyes of the global public.

 parminder 

  For example: "There is accordingly no reason why we cannot have international law that protects individual and business rights vis a vis a international body (that ICANN should become under international law).  To repeat, there is absolutely no problem with developing an international treaty that writes international law, which will make ICANN an international body, but with exactly the same governance and other processes (multistakeholder) as exist at present, and also provide means to ensure that individuals/ businesses interests and rights vis a vis ICANN are protected through a special court system that is set up by the same treaty. 
  So you are proposing, just for this one ICANN organization and its very limited remit, spending an enormous amount of time and money (for legal expertise, plus the value of the time of all those involved stakeholders) to hammer out a new international treaty to implemented, as well as the development of "international law" that is relevant to all concerns that may arise for disputes within and involving ICANN. Contract law, employment law, competition/antitrust law, etc., ad infinitum. How long will all this take? Years, I would submit. And from what more important issues will the ICANN community be distracted while embarking on this herculean effort? 
  And what would that law be? For example, for competition/antitrust as it relates to domain industry pricing within the framework of ICANN policies and contractual practices, shall it be the US approach, the EU's, some other nation's, or some amalgamation of them? And how long and at what expense shall that effort take? And from what source is the authority of the authors of these "laws" derived; in democratic nations legislators derive their authority by gathering majority support of voters, but ICANN is not a nation-state.  
  And, oh yes, we are also supposed to create "a special court system that is set up by the same treaty" to decide disputes under this new body of law created just for ICANN. How many jurists? What substantive requirements, and evidentiary standards, and procedural rules? What mechanism of appeal and to what body? 
  I would submit that this whole proposed project is quite absurd, especially given the lack of any convincing rationale to so many of us that such a project is even required to address any foreseeable dispute. 

    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   "Luck is the residue of design" -- Branch Rickey       From: accountability-cross-community-bounces at icann.org [accountability-cross-community-bounces at icann.org] on behalf of parminder [parminder at itforchange.net]
 Sent: Wednesday, June 29, 2016 6:21 AM
 To: Kleinwächter, Wolfgang; Alberto Soto; Paul Rosenzweig; accountability-cross-community at icann.org
 Subject: Re: [CCWG-ACCT] premature jurisdiction debates

  Hi Wolfgang

 I did not respond to your email earlier because I would not normally respond to an email that begins by calling a discussion unnecessarily repetitive, and ends by describing it as useless. However, since your post has earned so many enthusiastic +1s, I fear it may seem to some as a conclusive, unchallenged, argument against the case that I presented about ICANN's jurisdiction. For that reason I need to respond to it, as below. 

 On Sunday 26 June 2016 02:54 PM, "Kleinwächter, Wolfgang" wrote:
   P:
There is something called international law..... Like we are an international community working on an international issue, there is also international law.

W:
I am always perplexed that we have the same discussion again and again. The subject of international law is the state, represented by its government.   
 If we are to work on solutions to the problems that we face, we need to look towards directions of innovations where such solutions could lie, not look to where they do not. I have been describing Investor State Dispute Settlement systems being incorporated in most trade treaties - which are inter/pluri-lateral instruments and law. The subject here is the investor being afforded protection from state policies. These are supposed to protect investor's rights, who are legal persons and not states. There is accordingly no reason why we cannot have international law that protects individual and business rights vis a vis a international body (that ICANN should become under international law). 

 To repeat, there is absolutely no problem with developing an international treaty that writes international law, which will make ICANN an international body, but with exactly the same governance and other processes (multistakeholder) as exist at present, and also provide means to ensure that individuals/ businesses interests and rights vis a vis ICANN are protected through a special court system that is set up by the same treaty. (As the EU is proposing a new international court system for Investor State Dispute Settlement). 

 I am ready for a full-fledged discussion on this issue, on how such an international law can indeed be created, or alternatively, why and how it cannot be. 

 Please tell me where you find gaps, and I will respond accordingly. (the system would have space to incorporate international private law, and if required ICANN and registries given choice for national jurisdiction for contract related disputes - preferably it should be the country of incorporation of the registry. However, there would be complete immunity from any enforcement of public laws of the country - US - where it is headquartered - other than the trivial routine stuff which all host country agreements allow.)

  Governments negotiate treaties. The primary source of international law is the Charter of the United Nations. The seven principles there - including sovereign equality of states - are seen as jus cogens. The rules for treaties are laid down in the the Vienna Convention on the Law of Treaties. Governments can delegate some rights - via an international treaty - to an intergovernmental organisation, as UNESCO, ITU and others.Such organizations become a subject sui generis under international law and can negotiate treaties with their host countries. Governments can also create international courts - as the International court of justice in The Hague or the Rome Statute. But in case of a conflict, the conflicting parties are governments, not private legal or natural persons.    
 As mentioned, in the case of Investor State Disputes Settlement bodies/ courts, one of the conflicting party is a legal person. We need to look at where innovation is happening not at deep history alone. 
  This is rather different from what we have with ICANN. ICANN is a non-for profit private corporations which operates n the public interest. In its Articles of Incorporation ICANN makes clear that in operates within the framework of international law. That means ICANN respect the national sovereignty of states, does not interfere into internal affairs of other countries etc. But ICANN is not a subject under international law. Governments participate in ICANN in an advisory role. The role is specified in the bylaws.    
 ICANN is fully subject to US laws, and executive action. I had posed two scenarios, pl respond to them. Can you say that the scenarios are false, or ICANN will actually refuse to comply with US court or legitimate executive order, or whether it would comply and change its DNS policy/ action accordingly? It has to be one of these options. Which one? Why no one commits on it?

  If Parminder proposes an intergovernmental organizations for the governance of the Internet (or an intergovernmental framework convention for the domain name system) he should say so.  
 What I propose I have said clearly . No, it is *not* an intergov management of the DNS and other ICANN functions; it is keeping exactly the same function and governance processes (multi-stakeholder) of ICANN as now, but under international law and not US law. 
   Theoretically this is an option. Governments are free to negotiate anything as long as they find negotiation partners. It took 25 years to negotiate the 3rd Law of th Sea Convention. It took more than 20 years to negotiate the Rome Treaty. An the negotiations for a treaty on climate change started in the early 1990s. At this stage I do not see any intention of governments to enter into a new intergovernmental codification conference to negotiate an Internet treaty.    
 These processes were trying to bring into being a new institutional system. In the present case, we already have one, we just want to change its covering/ incorporating law from US to international - without changing the rest of institutional design. Should not take long. And unlike what you say, non US gov do not agree with the current US jurisdiction on ICANN. They did not during WSIS ten years ago, they still do not. 

BTW, individuals can start a case against private corporations if those corporations violate their rights they have in the country where they live.  They can start it, but with no effect whatsoever. ICANN would not even appear as a respondent. Just try it. Facebook case below is different. Unlike ICANN, FB has to maintained big business presence in France, as in every big country, and thus a ruling over it can be enforced. ICANN has no such constrains, and would not subject itself to any such foreign court cases.

 parminder 

  The case Schrems vs. Facebook is a good example. Facebook is incorporated in the US but does business in Europe. The European Court of Justice decided that Facebook has to respect  the rights of privacy of Mr. Schrems, a citizen of Austria. 

Hope this helps to end this useless debate. 

Wolfgang

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