[Ws2-jurisdiction] Our work so far, and a way forward
parminder
parminder at itforchange.net
Mon Oct 17 05:47:01 UTC 2016
On Monday 17 October 2016 10:49 AM, Schweighofer Erich wrote:
>
> 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
>
Yes, so also in most other countries... Therefore not only is it of
prime importance in our discussions on jurisdiction to distinguish
between public law - where no choice of jurisdiction is available -- and
private law -- where such choice 'may' in certain cases be available, it
is also important to understand and highlight that public law can
trounce private law. And so while ICANN and a contracting party may
choose a certain jurisdiction of application on matters of contract
between them, US public law (where ICANN is located and incorporated)
may still come in and decide that certain matters of the contract
attract public law application, and intervene accordingly.
parminder
>
>
> *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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