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

Tue Oct 11 15:55:54 UTC 2016

Parminder,

Your public law Wikipedia article cites only constitutional law,
administrative law, criminal law (and perhaps tax law and procedural law)
as being part of public law.  Is that what you mean?  I also note that this
describes civil law as follows; "This differs from civil law in that civil
actions are disputes between two parties that are not of significant public
concern."  This is clearly not true in common law countries, where civil
law cases form precedent that can have significant public impacts.

Your private law wikipedia quote only refers to a civil law legal system.
The article (really, a stub) goes on to say "The concept of private law in
common law countries is a little more broad, in that it also encompasses
private relationships between governments and private individuals or other
entities. That is, relationships between governments and individuals based
on the law of contract or torts are governed by private law, and are not
considered to be within the scope of public law."

I'm still not sure how this dichotomy applies here.

On Tue, Oct 11, 2016 at 11:44 AM, parminder <parminder at itforchange.net>
wrote:

>
> 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 or 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 <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> <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 <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
>
>
>
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