[Ws2-jurisdiction] Our work so far, and a way forward
parminder
parminder at itforchange.net
Tue Oct 11 15:37:03 UTC 2016
On Tuesday 11 October 2016 08:20 PM, Mueller, Milton L wrote:
>
> 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.
>
That would be eminently useful. Meanwhile I have tried to insert the
issue in the google doc on jurisdictional layers.
>
>
>
> 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.
>
Yes and no. It depends on whether you considered the issue of setting up
of outer 'accountability mechanisms' - as were set up earlier in the
process - as analogous to a "stress test". Even there one could say,
there is really no actual issue right now, but one needs to be prepared
for what would happen as some - very likely - issues come up. Same with
the "application of public law" issue - it concerns matters that are
almost structurally imminent, sooner or later, as could have been said
about outer accountability attracting matters. In fact, one can say even
more imminent in case of "public law application" than attracting the
need for activating the outer accountability mechanism . We know that
.xxx and .africa cases are already in the court, and many more would
come as thousands of gTLDs are taken up
> E.g., the European Commission opens an antitrust investigation into
> ICANN, or a (unlikely) Trump administration pushes a bill through
> Congress re-regulating ICANN
>
Other polities claiming jurisdiction over ICANN - like in your EU
example, is one class of problems. These can only be avoided if all
jurisdictions give a prior undertaking that they would not do any such
thing, which generally comes as part of a treaty. But right now I am
less interested in this class of problems, and more in those which are
likely to arise from within the US.
I am not even beginning to think of what a Trump administration may do
-- though in fact the rest of the world should be thinking of it. Core
Internet infrastructure is too important not to get into these kinds of
thoughts. It could be Trump, or another like him in future (allow me to
make a political comment -- the race has been so close that one can
easily say that an equally vicious but a little less stupid Trump could
have quite likely made it to the White House :) ).
I am still only thinking of things that are imminent under any US
administration. You or anyone else hasnt replied to some questions I
have repeatedly raised:
1. What happens if the concerned US court holds .xxx to be against US's
competition law? Describe the steps that will follow, and how can ICANN
avoid bending its policy making process and authority to the will of the
US state.
2. Same about .africa.
3. With 100s of new gTLDs getting operational, many of them private
closed ones with generic names (but that is hardly the only issue, there
could be many others), is it not obvious that we will be seeing many
court cases around them... What would ICANN do the moment an adverse
judgement comes?
4. What if OFAC doesn’t give licence to ICANN for dealing with a
particular country due to great deterioration of relationships with the US.
5. What if the FCC revises its decision of forbearance about its
authority over Internet addressing system (as it did on the issue of
whether Internet was title one or title two)?
6. There are almost as many US agencies that can exercise mandate over
ICANN's domain name policies as there are sectors that the Internet and
thus its naming system impacts. (ICANN allowed some 'regulatory
policies' to buyers of .pharmacy, and going forward as it also does this
with many other sectoral domain names, all of these can be challenged,
in the courts, as well as with sectoral regulatory bodies). What then?
If you even begin trying to deal with these questions, you will realise
what a volcanic earth we are sitting upon, in refusing to see the public
law jurisdiction issue.
thanks
parminder
>
>
> *From:*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
> *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
>
>
>
>
> _______________________________________________
>
> Ws2-jurisdiction mailing list
>
> Ws2-jurisdiction at icann.org <mailto:Ws2-jurisdiction at icann.org>
>
> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/ws2-jurisdiction/attachments/20161011/3e110956/attachment-0001.html>
More information about the Ws2-jurisdiction
mailing list