[Ws2-jurisdiction] Our work so far, and a way forward
parminder
parminder at itforchange.net
Tue Oct 11 16:08:56 UTC 2016
Thanks Greg, I sent my earlier email before I saw this email of yours,
but yes you have rightly picked the key points.
There will always be some grey zones and overlaps in areas of social
sciences, including legal studies and systems. But the distinction is
clear enough to be often spoken of in court judgements and so on. In
case of private law, the state has no interest at all in a situation
unless a private party seeks enforcement. In case of public law, it is
the larger society, or the state on its behalf, which has direct stake
and interest in the issue, and can take up the matter suo motto, or on
it being brought to its notice by an individual.
With regard to our current discussion, the element of 'choice of
jurisdiction' becomes important in showing an important difference
between these two kinds of laws. In case of public law, there is simply
no choice of jurisdiction ever. You attach yourself to a society, you
are subject to its public law. No choices here. But in case of private
law there can be, though not always, the possibility of choice of
jurisdiction, like two parties entering a contract mutually agreeing on
a particular jurisdiction for dispute resolution.
Therefore these two classes of laws have to be discussed separately when
we do the jurisdiction discussion - they admit of entirely different
treatment. Public law application in fully and inextricably linked to
place of incorporation/ HQ location/ substantial physical operations. In
many important cases of private law however there can be a choice, and
how this choice can and should be exercised will be a distinct area of
discussion and recommendation of this group. However, the discussion and
possible recommendation will have to be entirely different is case there
is no choice of jurisdiction involved, which is true for application of
public law.
parmidner
On Tuesday 11 October 2016 09:11 PM, Greg Shatan wrote:
> I echo Jeff's question.
>
> Milton's definition is one possible one, but I'm not sure that is what
> Parminder means. I agree that Milton's tracks my general
> understanding of how those terms might be used in a U.S. common law
> context. All US legislation is considered "Public Law".
>
> However, five minutes of Google searching reveals significantly
> different uses. It appears that in Civil law, stemming from Roman
> law, the terms are used define (i) laws governing the activities of
> the state and the interaction between the state and the individual or
> private entity vs. laws governing the activities of
> individuals/private entities and their interaction with each other.
>
> In International law, "international public law" governs the actions
> of nations (but may in the case of treaties be turned into laws that
> govern the actions of individuals), while "international private law"
> applies directly to the acts of individuals and business entities.
>
> There also appears to be a usage of these two terms based on how the
> laws are enforced -- a public law is one enforced by the state, while
> a private law is enforced by one individual/entity against another.
> However, there are many laws (at least in the US) that offer both
> state and private causes of action (e.g., both Department of Justice
> or a private plaintiff can bring a claim under the Americans with
> Disabilities Act). While criminal laws can only be enforced by the
> State (on behalf of the People), many criminal laws have civil law
> counterparts (e.g., murder/manslaughter vs. wrongful death, theft vs.
> conversion, etc. Broadly, Tort law is a series of private causes of
> action that are roughly equivalent with criminal causes of action); of
> course, imprisonment is exclusively a criminal law remedy (at least in
> the US). There are also concepts (such as Qui Tam and Article 78
> proceedings) where state action can either be started or challenged by
> private actors under certain circumstances; these further blur the
> public/private distinction in this system of classification..
>
> Finally, looking at various items found in the search, it appears that
> there are some countries (both civil and common law jurisdictions)
> where this classification is actively used, and others where it is
> not. So it is neither universal, nor understood the same way when it
> is used.
>
> *Parminder, Can you clarify what you mean by "public law" and "private
> law"? Without a better understanding, it would be premature to answer
> your question. Alternatively, you could rephrase this without
> reliance on a public law/private law dichotomy. Thanks!*
> *
> *
> Greg
>
> On Tue, Oct 11, 2016 at 11:21 AM, Mueller, Milton L <milton at gatech.edu
> <mailto:milton at gatech.edu>> wrote:
>
> Public law is legislation/court precedent, private law is contract.
>
>
>
>
>
> *From:*Jeff Neuman [mailto:jeff.neuman at comlaude.com
> <mailto:jeff.neuman at comlaude.com>]
> *Sent:* Tuesday, October 11, 2016 11:20 AM
> *To:* Mueller, Milton L <milton at gatech.edu
> <mailto:milton at gatech.edu>>; 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
>
>
>
> 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*
>
> *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 <tel:%2B1.703.635.7514>
>
> M: +1.202.549.5079 <tel:%2B1.202.549.5079>
>
> @Jintlaw
>
>
>
>
>
> *From:*ws2-jurisdiction-bounces at icann.org
> <mailto: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
> <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
> <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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