[Ws2-jurisdiction] Multiple Layers of Jurisdiction Document
parminder
parminder at itforchange.net
Tue Nov 1 10:49:09 UTC 2016
On Monday 31 October 2016 10:19 PM, Paul Rosenzweig wrote:
> snip
>
>
>
> I should add, by the way, that you misread the US International
> Organizational Immunites Act which by its terms applies only to public
> international organizations in which the US participates pursuant to a
> treaty. We don’t participate in ICANN pursuant to treaty. And the
> President cannot by decree convert a private organization (ICANN) into
> a public one.
>
Paul
I earlier gave a link to a report by an European jurist, who was
commissioned by ICANN, that shows examples of bodies not formed/
incorporated under international treaties being given immunity under the
mentioned US Act. It specifically gives the example of International
Fertilizer and Development Centre and wonders whether we should be
exploring more about that case. I would simply cut paste from my earlier
email of just a few days back. This text was also inserted by me in the
google doc that this group is working on.
"It is possible to obtain jurisdictional immunity for ICANN without
entering into multilateral treaties/ conventions. This can be done under
United States International Organisations Immunities Act(see
https://archive.icann.org/en/psc/annex9.pdf). There is precedent of such
immunities being given to organisations that, like ICANN, are registered
as an non profit. This study commissioned by ICANN
<https://archive.icann.org/en/psc/corell-24aug06.html>cites the example
of International Fertilizer and Development Center which was designated
as a public, nonprofit, international organisation by US Presidential
Decree, granting it immunities under the mentioned US Act."
(quote ends)
The following is from the wikipedia entry on International Fertilizer
and Development Centre
"The result of Kissinger's urgency became the International
Fertilizer Development Center, a non-profit organization
incorporated under the state laws of Alabama, which began its
service by answering the international calls once fielded to the
NFDC.^[2]
<https://en.wikipedia.org/wiki/International_Fertilizer_Development_Center#cite_note-2>
^[3]
<https://en.wikipedia.org/wiki/International_Fertilizer_Development_Center#cite_note-3>
In March 1977, U.S. President Jimmy Carter
<https://en.wikipedia.org/wiki/Jimmy_Carter> designated IFDC a
public international organization "entitled to enjoy the privileges,
exemptions, and immunities conferred by the International
Organizations Immunities Act."^[4]
<https://en.wikipedia.org/wiki/International_Fertilizer_Development_Center#cite_note-4>
(ends)
The question before us is: why should bot ICANN too obtain such
immunity? Or keeping within what we can or cannot do - why should this
group not recommend that ICANN be granted immunity under this Act.
This brings us to the question whether ICANN's accountability mechanisms
can be protected if such immunity is given to ICANN. I think they can
be, bec, firstly, there could be a carve out in the immunity designation
that allows accountability mechanism related court processes, and
secondly, even if this is not possible, accountability mechanism is an
issue of private law that can choose, say Californian jurisdiction, for
adjudication and enforcement. We can discuss this further.
parminder
PS: In my view, the real solution is international incorporation of
ICANN under a treaty. I am offering the above suggestion only as a
second best solution that the group could perhaps agree to.
>
>
> Paul
>
>
>
> Paul Rosenzweig
>
> paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>
>
> O: +1 (202) 547-0660
>
> M: +1 (202) 329-9650
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> VOIP: +1 (202) 738-1739
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> www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
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>
>
>
> *From:*parminder [mailto:parminder at itforchange.net]
> *Sent:* Sunday, October 30, 2016 5:54 AM
> *To:* Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com>;
> ws2-jurisdiction at icann.org
> *Subject:* Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document
>
>
>
> On Saturday 29 October 2016 07:37 PM, Paul Rosenzweig wrote:
>
> I’m sorry, but that’s just wrong Paraminder. The fact that ICANN
> is a US corproaration has nothing to do with its subject to public
> law in any way different than the fact that it has an office in
> Istabul subjects it to Turkish public law. To the extent ICANN
> operates as a coroporation it is subject to the public law of
> every jurisdiction where it operates. It can be sued for
> anti-competitive behavior in India today, if someone were so
> minded, provided that an allegation of violating Indian law could
> be raised.
>
>
> Paul, on the contrary I'd request you, lets talk on facts, and not
> fanciful notions.
>
> It is plain wrong to say that US public law applies on ICANN in the
> same way as Turkish or Indian law does. I dont know why are you even
> proposing such a completely unsustainable notion. I am not sure how to
> express my strong feelings against such a falsehood but let me try
> this: I am fine if this group makes a clear determination that "US
> public law applies to ICANN in exactly the same manner as of any other
> country" and writes it down as a finding in its report. I will like to
> see how a group of such well respected people and experts says such a
> thing. Of course, I am saying this bec I know that the group would
> never formally enter such a determination.
>
> But now since you have made this claim, and I do remember you have
> made it a few times earlier, and no one else has refuted it, Let me
> make a few points, but very briefly, bec I really do not consider this
> a serious proposition at all.
>
> I gave many examples of how US public law can interfere with ICANN's
> policy operation. Can you provide me with corresponding ways in which
> another country's law can interfere in the same or even similar
> way.... I do not want to bore the group by re listing all those
> examples, which I have done more than once in this discussion.
>
> A US court can change the decision of delegation of any gTLD, wherever
> the registry may be based. It can also impose the wisdom of US law
> over the domain allocation conditions of a gTLD. This it can do by
> direct fiat to ICANN.
>
> Other countries can interfere in operation of the DNS within their
> jurisdiction. They can direct registries and registrars located within
> their jurisdiction to act or not act in certain ways. US, on the other
> hand, can directly force the hand of ICANN in terms of its entire
> global operation, policy making as well as implementation work,
> including changes in the root file.
>
> I work in the management of an Indian non profit, which does multi
> country research projects. It would be most astonishing for me to hear
> that my non profit is equally subject to non Indian jurisdictions as
> it is to the Indian law. I am quite painfully aware that this is not a
> fact, not even close to it. For instance, when we do multi country
> project coordinated and run from India, I fully know how Indian law
> applies on the entirety of our actions and therefore of the overall
> project, whereas the courts of another country where a research team
> may do research for/ with us can interfere within that county for that
> part of the project. it is so simple and commonly understood, I wonder
> why am I even arguing it.
>
> Please lets not trash other people's important concerns in such
> offhand-ish manner... US's public law being applied unilaterally on
> the ICANN is a real problem with regard to the latter's global
> governance function. Let us explore what we can do about it..
>
> parminder
>
>
>
>
>
>
>
> Paul
>
>
>
> Paul Rosenzweig
>
> paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>
>
> O: +1 (202) 547-0660
>
> M: +1 (202) 329-9650
>
> VOIP: +1 (202) 738-1739
>
> www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
>
> My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/
>
>
>
> *From:*ws2-jurisdiction-bounces at icann.org
> <mailto:ws2-jurisdiction-bounces at icann.org>
> [mailto:ws2-jurisdiction-bounces at icann.org] *On Behalf Of *parminder
> *Sent:* Saturday, October 29, 2016 5:30 AM
> *To:* ws2-jurisdiction at icann.org <mailto:ws2-jurisdiction at icann.org>
> *Subject:* Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction
> Document
>
>
>
>
>
>
>
> On Friday 28 October 2016 07:39 PM, Paul Rosenzweig wrote:
>
> To which one needs to add that the principal reason the case
> is in California is that California is specified as the venue
> (and also as the substantive decisional law) in ICANN’s
> contracts. As a general matter ICANN is free to specify that
> the next such dispute be determined by an arbital panel in
> London (as an example) if it wishes, or using Swiss (another
> example) concepts of procedural due process.
>
>
> This may be true for issues of breach of contract, but not for
> issues of public law, like anti competitive practices, or fraud.
> In the latter set, there is no choice of law available. ICANN as
> US not profit is subject to US law and can be sued under it, or
> the state may take suo moto action.
>
> As from tis discussion, It has been clear during the working of
> this group that, in terms of the mandate of this group to give
> recs on the jurisdiction issue, there are two very different set
> of issues that come up for consideration which will require very
> different kind of recs.
>
> One set is of such issues where a choice of jurisdiction is
> available. With regard to these issues, this subgroup has to
> determine how this available choice should be exercised.
>
> The second set is of such issues where no choice of application of
> law is available, and the law of the place of incorporation and HQ
> applies. This is the trickly part, and we have to determine (1)
> what kind of problems may faced in the future, (2) how serious
> they are, their ramifications etc, (3) what, if anything at all,
> can be done with regard to this issue (4) what are the benefits
> and drawbacks of different possible options, (5) considering all
> these elements, is it worth recommending one or more options.
>
> It will be most useful is our work is organised in line with the
> kind of recommendations that we may make, which I see is as above.
> I do not see why our current documents keep these two different
> kinds of issues mixed, which admit of very different
> 'jurisdictional' treatment. Neither can I understand the logic of
> trying to eliminate right away some possible options that come
> much later in the discussion, instead of leading a structured
> discussion towards them.
>
> parminder
>
>
>
>
>
>
>
>
> Paul
>
>
>
> Paul Rosenzweig
>
> paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>
>
> O: +1 (202) 547-0660
>
> M: +1 (202) 329-9650
>
> VOIP: +1 (202) 738-1739
>
> www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
>
> My PGP Key:
> http://redbranchconsulting.com/who-we-are/public-pgp-key/
>
>
>
> *From:*ws2-jurisdiction-bounces at icann.org
> <mailto:ws2-jurisdiction-bounces at icann.org>
> [mailto:ws2-jurisdiction-bounces at icann.org] *On Behalf Of
> *Mueller, Milton L
> *Sent:* Thursday, October 27, 2016 9:04 PM
> *To:* Jorge.Cancio at bakom.admin.ch
> <mailto:Jorge.Cancio at bakom.admin.ch>;
> ws2-jurisdiction at icann.org <mailto:ws2-jurisdiction at icann.org>
> *Subject:* Re: [Ws2-jurisdiction] Multiple Layers of
> Jurisdiction Document
>
>
>
> One thing to keep in mind about these court cases. The
> litigation concerns such things as whether ICANN was in breach
> of contract, whether it committed fraud, and whether it needs
> to be ordered to follow the IRP decision. It does _/not/_ put
> an American court in the position of deciding which of two
> applicants for the .AFRICA domain are the more worthy. In
> other words, the U.S. court in this case is not the policy
> maker, it is a settler of legal disputes among contracting or
> would-be contracting parties.
>
>
>
> --MM
>
>
>
>
>
> *From:*ws2-jurisdiction-bounces at icann.org
> <mailto: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>
> *Sent:* Thursday, October 27, 2016 4:00 PM
> *To:* gregshatanipc at gmail.com
> <mailto:gregshatanipc at gmail.com>; ws2-jurisdiction at icann.org
> <mailto:ws2-jurisdiction at icann.org>
> *Subject:* Re: [Ws2-jurisdiction] Multiple Layers of
> Jurisdiction Document
>
>
>
> Hi, here’s the website about the „.africa“ issue I mentioned
> in the chat: http://www.africainonespace.org/litigation.php
>
> Cheers
>
> Jorge
>
>
>
> *Von:*ws2-jurisdiction-bounces at icann.org
> <mailto:ws2-jurisdiction-bounces at icann.org>
> [mailto:ws2-jurisdiction-bounces at icann.org] *Im Auftrag von
> *Greg Shatan
> *Gesendet:* Donnerstag, 27. Oktober 2016 20:59
> *An:* ws2-jurisdiction at icann.org
> <mailto:ws2-jurisdiction at icann.org>
> *Betreff:* [Ws2-jurisdiction] Multiple Layers of Jurisdiction
> Document
>
>
>
>
>
>
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>
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