[Ws2-jurisdiction] Our work so far, and a way forward
parminder
parminder at itforchange.net
Tue Oct 11 16:18:30 UTC 2016
On Tuesday 11 October 2016 09:25 PM, Greg Shatan wrote:
> 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 have no problem with this broader conception of private law, to
include private relationships between govs and individuals and other
entities.
>
> I'm still not sure how this dichotomy applies here.
I have done my best to present it, and I fully clear myself both about
the nature of distinction and its central salience to the mandate of
this group. Rest is up to the chairs and the group. But if disputes
about concepts are best dealt by going to 'particulars' you or others
could perhaps try and address the specific case scenarios that I
presented in my email (what gets described as 'stress test' around
here). That may perhaps clarify better.
Thanks
parminder
>
> On Tue, Oct 11, 2016 at 11:44 AM, parminder <parminder at itforchange.net
> <mailto: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
> <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
> <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 <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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>>
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