[Ws2-jurisdiction] Our work so far, and a way forward
Schweighofer Erich
erich.schweighofer at univie.ac.at
Mon Oct 17 05:19:08 UTC 2016
Good clarification.
Please add to „constraints on free choice in private law“: Many countries (e.g. EU legislation, Lugano Convention) restrict choice of law and forum in favour of consumers.
Best, Erich Schweighofer
Von: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounces at icann.org] Im Auftrag von parminder
Gesendet: Montag, 17. Oktober 2016 07:14
An: Kavouss Arasteh
Cc: ws2-jurisdiction at icann.org
Betreff: Re: [Ws2-jurisdiction] Our work so far, and a way forward
On Sunday 16 October 2016 07:08 PM, Kavouss Arasteh wrote:
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
Sure, Kavouss. I agree I could have been clearer.
Public law concerns issues between the society and one or more individuals. The society is legally represented by the state, and so in public law case/ dispute, this one side is fixed and cannot be changed. Any party(one or more) that gets involved in a public law dispute has no choice of jurisdiction, and the jurisdiction where this party (or parties if there is more than one) is located, and is a part of the wider society, will apply.
So, in case of public law, there is no choice of jurisdiction, jurisdiction of the place where a party (or parties) is located/ incorporated will apply.
In case of private law, it is an issue between two or more individuals (or legal entities) and in many cases it is possible that they can preselect a jurisdiction of application if there is a dispute about given matters for which the jurisdiction is preselected. This generally happens in various contracts.
Application of labour law is a good example. Labour law consists of some values and standards that a society decides must apply to every employment. It is a public law. There is *no* choice for a set of employer and employed, or even a trade union on the latter's behalf, to agree *not* to be subject to a society's labour laws. However, one can enter into a contract of service (which may otherwise look quite like employment) whereby the conditions of the contract can be mutual agreed. I dont know how it is different countries, but sometimes in such cases disputes under the contract can be subject to mutually preselected jurisdiction. Private law is in operation here.
IN case of private law, it may be possible to choose the jurisdiction that will be applicable to disputes.
However, public law can always upstage private law application; for instance labour courts can hold that certain contracts of service should really have been cases of regular employment, subject to public labour laws.
Uber for instance makes out private contracts (under private law) with its drivers. You would have heard that many drivers have sued the company that this arrangement should in fact be of regular employment, subject to labour laws (public law).
Hope this clarifies. parminder
2016-10-16 15:19 GMT+02:00 parminder <parminder at itforchange.net<mailto: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> <mailto:jeff.neuman at valideus.com><mailto:jeff.neuman at valideus.com>or
jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com> <mailto: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] *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>
[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> <mailto: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
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