[Ws2-jurisdiction] Our work so far, and a way forward

Tue Oct 11 07:59:28 UTC 2016

On Monday 10 October 2016 10:28 AM, Greg Shatan wrote:
> All,
>
> In order to move forward, and based on the discussions so far, I
> suggest the following approach.
>
> First, we should continue the current approach of defining and
> refining the various layers of jurisdiction, and I encourage you all
> to go to the Google doc and add your views.
>  https://docs.google.com/document/d/1oE9xDIAJhr4Nx7vNO_mWotSXuUtTgJMRs6U92yTgOH4/edit?usp=sharing
> <https://docs.google.com/document/d/1oE9xDIAJhr4Nx7vNO_mWotSXuUtTgJMRs6U92yTgOH4/edit?usp=sharing>
>
> Second, we won't investigate changing ICANN's headquarters or
> incorporation jurisdiction at this time.  However, it's not off the
> table -- if we identify an issue during our work and we can't find a
> less drastic way to deal with that issue, we will revisit this point
> at that time.  We can then revisit the concerns that people have
> raised regarding such a recommendation in the context of a particular
> issue.

While I can always insert this in the Google doc, I prefer to first
discuss this here. (And yes I am repeating it.) The jurisdiction issue
is best divided as (1) application of public law, (2) application of
private law, (3) the rest of sundry stuff - like about different global
offices and interaction with respective domestic jurisdiction (these are
of relatively minor significance, and there may not be much to 'decide'
about them in advance)

Place of incorporation and location of HQ (which is almost always the
same) may be the proxy for 'application of public law' but they do not
necessarily conflate. US government by decree has given jurisdictional
immunities  even to such bodies that are *not* created under
international law and simply registered as private bodies, in the US or
elsewhere. This certainly is an important possibility to look into for
ICANN, which insulates it from application of US public law - in terms
of its key organisational activities -- without moving the headquarters
or even jurisdiction of incorporation.

I will repeat the question I put to the chairs in my last email: "are we
considering this issue of application of US public law to ICANN, and the
problems that it may cause with respect to its policy processes, and
being able to appropriately carry out its global governance role? "

The concerns around application of public law are very different than
those of application of private law -- and often different actors have
these two different kinds of concerns. Public law also have application
over private law cases.

If this group does not intend to get into the 'application of public
law' question and stick to issues of private law, then let it decide and
state as much in clear terms. Such actors whose interest in the
jurisdiction question comes primarily from the public law aspect can
then disengage from spending further time in this process - as for
instance I will like to do.

> Third, we should put aside "confirming and assessing the gap analysis"
> for the moment.  There is still a diversity of views on what this "gap
> analysis" was and what we need to do to confirm and assess it.  As a
> result, our time has been spent discussing the parameters of the
> assignment, rather than working on the assignment itself.  I believe
> that we will be better able to define the scope of this item and move
> to substance, if we spend some time looking at the substance of an
> issue that is clearly within our scope.
>
> After we finish clarifying the multiple layers of jurisdiction, we
> should move to an issue that is clearly within our scope -- something
> we have to do.  That way we can move to the substance of the issue and
> not spend a lot of time on "scope."
>
> An issue that is clearly within our scope relates to ICANN's
> jurisdictions for settlement of disputes (i.e., venue and choice of law).

One way is to look at this is as concerning the application of private
law on iCANN matters.  But then, like in the case of .xxx, what if the
dispute invokes a public law (US competition law in this instance) --
which one can be assured that every disputant will do as long as it can
find a favourable US public law which seems to side with the way the
disputant wants things to go. As we explore the issue of 'settlement of
disputes' are we going to look only to private law part and not public
law? That IMHO would be quite inappropriate. But then if we are going to
look into  both private law and public law elements, the discussion gets
messy because private law can involve choice of jurisdiction but not
public law. This is why I think it is best if we divide our work and
discussions as I suggested above, separately about issues of public law
and those of private law.

But, as I said before, issues of public law are simply out, let us then
be clear about it. I request a clarification by the chairs.

> There should not be any question that this is within the scope of our
> group (Annex 12 refers to this as the "focus" for our group).  Based
> on Annex 12, this involves looking at: "The influence that ICANN’s
> existing jurisdiction" relating to resolution of disputes "may have on
> the actual operation of policies

Application of US public law on ICANN has enormous influence on 'actual
operation of (ICANN) policies'. And so we are very much within our
mandate in discussing issues arising from 'public law' aspect.

> and accountability mechanisms." I suggest that we examine this
> "influence" and determine what this "influence" is.  Our work looking
> at venue and choice of law in the "multiple layers of jurisdiction"
> will help us in this task.

I gave a few instances in my last email of influence of US public law on
operation of ICANN policies. Would these examples qualify to be
considered under this or not?

>
> A note on process -- it is very important that we focus on creating
> written material. In our calls, we should be working on and working
> from these written materials. Ultimately, these writings will feed
> into our deliverable.  Put another way, you should focus your
> contributions on adding to the drafts (currently, the "layers of
> jurisdiction" document), rather than on relying solely on oral
> interventions in our calls -- after all we have 168 hours in a week,
> and only 1 hour for our call.

I agree. Calls can only help confirm or resolve some outstanding issues,
and lay further directions. What we can accomplish in writing we should
do. In that regard, I also think that to th extent issues can be
addressed and resolved in email exchanges here they best be done so...

Thanks, parminder

>
> I look forward to our upcoming call.
>
> Best regards,
>
> Greg  
>
>
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