[Ws2-jurisdiction] Our work so far, and a way forward
Kavouss Arasteh
kavouss.arasteh at gmail.com
Sun Oct 16 13:38:19 UTC 2016
Dear Parminder
Thank you very much for the message.
You said for public law
*"in the application of public law there is no choice of jurisdiction
available to the parties, and they are subject the jurisdiction of the
state where they are located"*
*What do you mean by " they" who are they ? both parties, one party ?*
You also said
*"in the application of private law, often though not always a choice of
jurisdiction is available to the parties, especially as and if previously
agreed to." *
It is not clear what you were to say, your statement is unfortunately
vagueas
May you put it differently
Kavouss
2016-10-16 15:19 GMT+02:00 parminder <parminder at itforchange.net>:
> As I mentioned, the distinction between public law and private law is for
> instance spoken of in many judgements of the highest courts in India, and
> is in general understood and public law being that involving the interests
> of the state/ society in an issue and private law as only of specific
> individual parties. Anyway, since we need to focus on our task at hand, I
> will point to what should most matter to us with regard to this
> distinction. We are taking about the jurisdiction issue, and what may need
> to be and can be done in this regard about the jurisdiction over ICANN. In
> this regard it is most salient that
>
> in the application of public law there is no choice of jurisdiction
> available to the parties, and they are subject the jurisdiction of the
> state where they are located
>
> in the application of private law, often though not always a choice of
> jurisdiction is available to the parties, especially as and if previously
> agreed to.
>
> anyway, as Milton says, it is more important to address the kind of
> scenarios that I have listed.
>
> thanks, parminder
>
> On Tuesday 11 October 2016 10:53 PM, Nigel Roberts wrote:
>
> I do not know if the US has a different definition, but in the UK 'public
> law' means law that applies to actions of the Government.
>
> So an action in judicial review to overturn an adverse decision by an
> executive branch decision-maker is an action in public law.
>
>
>
> On 11/10/16 16:19, 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.
>
>
>
> *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>
> <jeff.neuman at valideus.com>or
> jeff.neuman at comlaude.com <mailto:jeff.neuman at comlaude.com>
> <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>
> [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 <mailto:ws2-jurisdiction at icann.org>
> <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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