[Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

Wed Nov 2 15:40:32 UTC 2016

Dear all,
Paul, Kavouss, Parminder,

I may confirm a fact as an international lawyer: States have been willing and are still willing to grant privileges and immunities to private International Organisations if they consider it appropriate. The formal status does not change but – in practice- they are International Organisations. The best example are the International Committee of the Red Cross or the Organisation for Security and Co-operation in Europe.

Thus, ICANN can get immunities if a State agrees to it. However, it creates another problem, a big one for accountability.
California law gives the ICANN Community powers to enforce accountability. If ICANN is immunity granted in a headquarters agreement, then this option is gone.
Rebuilding it in a new form of an international treaty is possible but very contrary to any practice so far by states with many headquarters of International Organisations (e.g. Switzerland, Austria but also U.S.A.) It is worth considering it … as an academic paper (I am working on it) but difficult to move on now. Too many legal problems arise and solving them is tricky and requires huge legal resources. It is worth considering it but not a real option for this stream.

Best regards,
Erich Schweighofer

Von: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounces at icann.org] Im Auftrag von Paul McGrady
Gesendet: Mittwoch, 02. November 2016 14:57
An: 'Arasteh'; 'parminder'
Cc: ws2-jurisdiction at icann.org
Betreff: Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

ICANN should not be granted immunity and even if there was a working group set up to discuss it, it would not be the accountability working group.  Immunity is the opposite of accountability.  We should not waste time and resources discussing how to make ICANN unaccountable.  We have way too much real work to do in a very short timeframe.  Let’s see if we can rid ourselves of this bad idea while together in Hyderabad.

Regards,
Paul

From: ws2-jurisdiction-bounces at icann.org<mailto:ws2-jurisdiction-bounces at icann.org> [mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of Arasteh
Sent: Tuesday, November 1, 2016 7:49 AM
To: parminder <parminder at itforchange.net<mailto:parminder at itforchange.net>>
Cc: ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>
Subject: Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

Dear All
Still I am not sure why ICANN must be granted immunity?
The question is that immunity is suggested vis a vis which entity and for what purpose?
I am also doubtful that should such immunity is  granted how accountability provisions would be ensured.
Moreover, how ICANN could be entitled to be an international organization compared with other international organization
Tks
Kavouss

Sent from my iPhone

On 1 Nov 2016, at 16:19, parminder <parminder at itforchange.net<mailto: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<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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From: parminder [mailto:parminder at itforchange.net]
Sent: Sunday, October 30, 2016 5:54 AM
To: Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com><mailto: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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