[Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

Arasteh kavouss.arasteh at gmail.com
Tue Nov 1 12:58:13 UTC 2016 

Dear Grec
There is difference between international intergovernmental organisation like UN and some or all of its Specialized Agencies and International organisations .
Kavouss

Sent from my iPhone

> On 1 Nov 2016, at 17:18, Greg Shatan <gregshatanipc at gmail.com> wrote:
> 
> To put this in context, here's a non-exhaustive list of what the US considers to be Public International Organizations:
> 
> Organizational Categories
> 
> United Nations Organizations
> Specialized Agencies of the United Nations and Related Organizations
> International Financial Institutions
> Inter-American Organizations
> Other Regional Organizations
> Other International Organizations
> United Nations (UN Secretariat, Organs and their Subsidiary Bodies and Special Programs)
> 
> United Nations Secretariat (UN)
> UN Capital Development Fund (UNCDF)
> UN Center for Human Settlements (UNCHS)
> UN Children's Fund (UNICEF)
> UN Development Fund for Women (UNIFEM)
> UN Development Program (UNDP)
> UN Environmental Program (UNEP)
> UN High Commissioner for Refugees (UNHCR)
> UN International Training and Research Center (UNITAR)
> UN Office on Drugs and Crime (UNODC)
> UN Population Fund (UNFPA)
> UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA)
> UN University (UNU)
> UN Volunteers (UNV)
> International Court of Justice (ICJ)
> International Civil Service Commission (ICSC)
> International Criminal Tribunal for the Former Yugoslavia (ICTY)
> International Criminal Tribunal for Rwanda (ICTR)
> International Research and Training Institute for the Advancement of Women (INSTRAW)
> Joint UN Program on HIV/AIDS (UNAIDS)
> World Food Program (WFP)
> Note:
> 
> Because the United Nations qualifies as an international organization in which the United States Government participates within the meaning of Public Law 89-554 as amended, organs and special programs of the United Nations usually qualify under the statute as well. The above list, therefore, is meant to be illustrative, not exhaustive. Questions as to whether other organs or special programs of the United Nations not on the above list qualify under the statute should be addressed to the Department of State at the following address:  EmploymentUN at state.gov.
> 
> Specialized Agencies of the United Nations and Related Organizations
> 
> Food and Agriculture Organization (FAO)
> International Agency for Research on Cancer (IARC)
> International Atomic Energy Agency (IAEA)
> International Civil Aviation Organization (ICAO)
> International Fund for Agricultural Development (IFAD)
> International Labor Organization (ILO)
> International Maritime Organization (IMO)
> International Telecommunication Union (ITU)
> UN Educational, Scientific and Cultural Organization (UNESCO)
> Universal Postal Union (UPU)
> World Health Organization (WHO)
> World Intellectual Property Organization (WIPO)
> World Meteorological Organization (WMO)
> International Financial Institutions
> 
> Bank for International Settlements (BIS)
> International Monetary Fund (IMF)
> North American Development Bank (NADB)
> UN Regional Development Banks
> African Development Bank
> Asian Development Bank
> European Bank for Reconstruction and Development (EBRD)
> Inter-American Development Bank (IDB)
> World Bank Group
> International Bank for Reconstruction & Development (IBRD)
> International Center for Settlement of Investment Disputes (ICSID)
> International Finance Corporation (IFC)
> Multilateral Investment Guarantee Agency (MIGA)
> Inter-American Organizations
> 
> Border Environment Cooperation Commission (BECC)
> Inter-American Center of Tax Administrators (CIAT)
> Inter-American Indian Institute (IAII)
> Inter-American Institute for Cooperation in Agriculture (IICA)
> Inter-American Institute for Global Change Research (IAI)
> Inter-American Tropical Tuna Commission (IATTC)
> Organization of American States (OAS)
> Pan American Health Organization (PAHO)
> Pan American Institute of Geography and History (PAIGH)
> Pan American Railway Congress Association (ACPF) (Argentina)
> Postal Union of the Americas, Spain and Portugal (PUASP)
> Other Regional Organizations
> 
> Asia Pacific Energy Research Center (APERC)
> Colombo Plan Council
> Great Lakes Fisheries Commission (GLFC)
> International Energy Agency (IEA)
> North Atlantic Assembly (NAA)
> North Atlantic Treaty Organization (NATO)
> Nuclear Energy Agency (NEA)
> Organization for Economic Cooperation and Development (OECD)
> South Pacific Commission (SPC)
> Other International Organizations
> 
> Center for International Forestry Research (CIFOR)
> Commission for Environmental Cooperation (CEC)
> Commission for Labor Cooperation
> Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR)
> Comprehensive Nuclear-Test-Ban Treaty Organization (CTBTO)
> Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)
> COPAS-SARSAT (Search and Rescue Satellite System)
> Global Biodiversity Information Facility (GBIF)
> The Global Fund (to Fight AIDS, Tuberculosis and Malaria) (TGF)
> The Hague Conference on Private International Law (HCOPIL)
> International Agreement on the Maintenance of Certain Lights in the Red Sea
> International Bureau for the Permanent Court of Arbitration (PCA)
> International Bureau for the Protection of Industrial Property
> International Bureau for the Publication of Customs Tariffs
> International Bureau of Weights and Measures (BIPM)
> International Center for Agricultural Research in the Dry Areas (ICARDA)
> International Center for the Study of the Preservation and Restoration of Cultural Property (ICCROM)
> International Coffee Organization (ICO)
> International Committee of the Red Cross (ICRC)
> International Cotton Advisory Committee (ICAC)
> International Council for the Exploration of the Sea (ICES)
> International Criminal Police Organization (INTERPOL)
> International Crops Research Institute for the Semi-Arid Tropics (ICRISAT)
> International Development Law Organization (IDLO)
> International Energy Forum Secretariat (IEFS)
> International Fertilizer Development Center (IFDC)
> International Grains Council (IGC)
> International Human Frontier Science Program Organization (HFSP)
> International Hydrographic Organization (IHO)
> International Institute for Cotton
> International Institute for the Unification of Private Law (UNIDROIT)
> International Mobile Satellite Organization (IMSO)
> International Organization for Legal Metrology (OIML)
> International Organization for Migration (IOM)
> International Organization of Supreme Audit Institutions (INTOSAI)
> International Plant Genetics Resources Institute (IPGRI)
> International Rubber Study Group (IRSG)
> International Science and Technology Center (ISTC)
> International Seed Testing Association (ISTA)
> International Service for National Agriculture Research (ISNAR)
> International Tropical Timber Organization (ITTO)
> International Union of Credit and Investment Insurers (Berne Union)
> International Whaling Commission (IWC)
> Inter-Parliamentary Union (IPU)
> Iran-United States Claims Tribunal
> Korean Peninsula Energy Development Organization (KEDO)
> Multinational Force and Observers (MFO)
> North American Commission for Environmental Cooperation (CEC)
> North Pacific Anadromous Fish Commission (NPAFC)
> Organization for the Prohibition of Chemical Weapons (OPCW)
> Organization for Security and Cooperation in Europe (OSCE)
> Pacific Aviation Safety Office (PASO)
> Permanent International Association of Navigation Congresses (PIANC)
> Regional Environmental Center for Central and Eastern Europe (REC)
> Science and Technology Center in Ukraine (STCU)
> Sierra Leone Special Court
> World Customs Organization (WCO)
> The World Heritage Fund
> World Organization for Animal Health (OIE)
> World Trade Organization (WTO)
> http://www.state.gov/p/io/empl/126305.htm
> 
>> On Tue, Nov 1, 2016 at 6:49 AM, parminder <parminder at itforchange.net> wrote:
>> 
>>> 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 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][3] In March 1977, U.S. President Jimmy Carter designated IFDC a public       international organization "entitled to enjoy the privileges,       exemptions, and immunities conferred by the International Organizations Immunities Act."[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
>>> 
>>> O: +1 (202) 547-0660
>>> 
>>> M: +1 (202) 329-9650
>>> 
>>> VOIP: +1 (202) 738-1739
>>> 
>>> www.redbranchconsulting.com
>>> 
>>> My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/
>>> 
>>>  
>>> 
>>> 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
>>> 
>>> O: +1 (202) 547-0660
>>> 
>>> M: +1 (202) 329-9650
>>> 
>>> VOIP: +1 (202) 738-1739
>>> 
>>> 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] On Behalf Of parminder
>>> Sent: Saturday, October 29, 2016 5:30 AM
>>> To: 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
>>> 
>>> O: +1 (202) 547-0660
>>> 
>>> M: +1 (202) 329-9650
>>> 
>>> VOIP: +1 (202) 738-1739
>>> 
>>> 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] On Behalf Of Mueller, Milton L
>>> Sent: Thursday, October 27, 2016 9:04 PM
>>> To: Jorge.Cancio at bakom.admin.ch; 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] On Behalf Of Jorge.Cancio at bakom.admin.ch
>>> Sent: Thursday, October 27, 2016 4:00 PM
>>> To: gregshatanipc at gmail.com; 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] Im Auftrag von Greg Shatan
>>> Gesendet: Donnerstag, 27. Oktober 2016 20:59
>>> An: ws2-jurisdiction at icann.org
>>> Betreff: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document
>>> 
>>>  
>>> 
>>>  
>>> 
>>> 
>>> 
>>> 
>>> 
>>> 
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>>>  
>>> 
>>>  
>>> 
>> 
>> 
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