[Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

Wed Nov 2 16:02:31 UTC 2016

Dear Paul
I 100% agree with you unless there is different scope of immunity other
than discussed
Kavouss

2016-11-02 16:40 GMT+01:00 Schweighofer Erich <
erich.schweighofer at univie.ac.at>:

> 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 <ws2-jurisdiction-bounces at icann.org>] *On Behalf Of *
> Arasteh
> *Sent:* Tuesday, November 1, 2016 7:49 AM
> *To:* parminder <parminder at itforchange.net>
> *Cc:* 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> 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
>
> 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
> <parminder at itforchange.net>]
> *Sent:* Sunday, October 30, 2016 5:54 AM
> *To:* Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com>
> <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 <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 <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 <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 <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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