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

Tue Oct 11 15:44:53 UTC 2016

On Tuesday 11 October 2016 08:49 PM, Jeff Neuman wrote:
>
> 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.
>

Taking the simple descriptions most easily at hand ..

*"Private law* is that part of a civil law
<https://en.wikipedia.org/wiki/Civil_law_%28legal_system%29> legal
system <https://en.wikipedia.org/wiki/Legal_system> which is part of the
/jus commune <https://en.wikipedia.org/wiki/Jus_commune>/ that involves
relationships between individuals, such as the law of contracts
<https://en.wikipedia.org/wiki/Contract> or torts
<https://en.wikipedia.org/wiki/Tort>^[1]
<https://en.wikipedia.org/wiki/Private_law#cite_note-Mattei-1> "

https://en.wikipedia.org/wiki/Private_law

*"Public law* (lat. /ius publicum/) is that part of law
<https://en.wikipedia.org/wiki/Law> which governs relationships between
individuals and the government
<https://en.wikipedia.org/wiki/Government>, and those relationships
between individuals which are of direct concern to society
<https://en.wikipedia.org/wiki/Society>.^[1] "
<https://en.wikipedia.org/wiki/Public_law#cite_note-oxdic-1>
https://en.wikipedia.org/wiki/Public_law

parminder

>  
>
> *Jeffrey J. Neuman*
>
> *Senior Vice President *|*Valideus USA***| *Com Laude USA*
>
> 1751 Pinnacle Drive, Suite 600
>
> Mclean, VA 22102, United States
>
> E: jeff.neuman at valideus.com <mailto:jeff.neuman at valideus.com>or
> jeff.neuman at comlaude.com <mailto:jeff.neuman at comlaude.com>
>
> T: +1.703.635.7514
>
> M: +1.202.549.5079
>
> @Jintlaw
>
>  
>
>  
>
> *From:*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>; 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  
>
>
>
>     _______________________________________________
>
>     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/20161011/09cc6d92/attachment-0001.html>