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

Tue Oct 11 15:21:40 UTC 2016

Public law is legislation/court precedent, private law is contract.

From: Jeff Neuman [mailto:jeff.neuman at comlaude.com]
Sent: Tuesday, October 11, 2016 11:20 AM
To: Mueller, Milton L <milton at gatech.edu>; parminder <parminder at itforchange.net>; ws2-jurisdiction at icann.org
Subject: RE: [Ws2-jurisdiction] Our work so far, and a way forward

Although I am a properly licensed attorney in the United States, I am not clear on what the definition is of "public law" vs. private law.  That  is not a concept that I am familiar with.  Are talking about statutory law vs. common law, or are we talking about private causes of action vs. government causes of action.

Sorry, but just trying to wrap my head around this and why it matters.

Jeffrey J. Neuman
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@Jintlaw

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: Tuesday, October 11, 2016 10:51 AM
To: parminder <parminder at itforchange.net<mailto:parminder at itforchange.net>>; ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>
Subject: Re: [Ws2-jurisdiction] Our work so far, and a way forward

I don't think the question of public law is out of consideration. There is much talk of "applicable [public] law" when we consider dispute resolution/choice of law, for example. However, it is not clear how  those issues fit into the "jurisdiction layer" model that seems to be clarifying and driving our agenda. So I hope Greg and Vinay can weigh in on that issue for us.

If I understand you correctly, public law issues are analogous to a "stress test;" there is no major issue with it now, but we need to explore how the new ICANN regime will react if something happens. E.g., the European Commission opens an antitrust investigation into ICANN, or a (unlikely) Trump administration pushes a bill through Congress re-regulating ICANN

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: Tuesday, October 11, 2016 3:59 AM
To: ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>
Subject: Re: [Ws2-jurisdiction] Our work so far, and a way forward

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

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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