[Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

Wed Nov 2 13:43:20 UTC 2016

Sigh . The author of the study doesn't even know that the United States does
not have Presidential Decrees.  Here is a link to the Executive Order
(https://issuu.com/ifdcinfo/docs/exec_order_11977_-_presidential_decree_pio_
status_) which reveals that the organization is established as a public
international organization by virtue of its affiliation with an
international organization (the Consultative Group on International
Agricultural Research) which was itself established by nation state
agreement (i.e. not by US fiat).  That took me roughly 10 minutes of
research to find.

If you want to spend time arguing that the nation states should establish an
international agreement that makes ICANN a public international
organization, by all means, go ahead.  IF they did, then the US might wind
up recognizing it and granting ICANN immunity (assuming the other nations of
the world did as well).

Paul Rosenzweig

 <mailto:paul.rosenzweig at redbranchconsulting.com>
paul.rosenzweig at redbranchconsulting.com

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From: parminder [mailto:parminder at itforchange.net] 
Sent: Tuesday, November 1, 2016 6:49 AM
To: Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com>;
ws2-jurisdiction at icann.org
Subject: Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

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>
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.  <https://archive.icann.org/en/psc/corell-24aug06.html> 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]
<https://en.wikipedia.org/wiki/International_Fertilizer_Development_Center#c
ite_note-2> [3]
<https://en.wikipedia.org/wiki/International_Fertilizer_Development_Center#c
ite_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#c
ite_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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From: parminder [mailto:parminder at itforchange.net] 
Sent: Sunday, October 30, 2016 5:54 AM
To: Paul Rosenzweig  <mailto:paul.rosenzweig at redbranchconsulting.com>
<paul.rosenzweig at redbranchconsulting.com>; ws2-jurisdiction at icann.org
<mailto: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/> 

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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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