[Ws2-jurisdiction] Our work so far, and a way forward

[parminder]

On Monday 17 October 2016 01:35 PM, Nigel Roberts wrote:
> Parminder
>
> Would you not agree that a better formulation would be that in any
> question of public law, the Law and Jurisdiction is, usually, the law
> that is generally the law and jurisdication that applies, generally,
> to the RELEVANT PUBLIC AUTHORITY (sometimes called 'emanation of the
> state')?

Nigel, if you are saying that public law is only such law that applies
to public authorities then I am unable to agree with this definition.
Criminal law is one of most well known examples of public law which of
course is applicable on everyone and not just public authorities.  Sol
is for instance, labour law, all regulatory enforcements, and the such.

Even thisauthoritative looking website
<http://www.allaboutlaw.co.uk/stage/areas-of-law/public-law> from UK
says, "In the UK, public law is made up of constitutional/administrative
law, tax law and criminal law."

It further says, "There are several theories as to why public law is
different to private law. These have evolved over time but it’s widely
regarded that a combination of the subjection theory and subject theory.
The subjection theory suggests that public law governs the relationship
between the person and the state and private law governs relationships
of individuals. The subject theory suggests that if a person find
themselves in membership of a public body, public law applies."

It also confirms my earlier example of how employment could both be
guided by public law (ex., labour law) and private law (contract law).
TO further quote form this UK legal website, " For example, employment
law falls into both – the employment contract is a private law matter,
whereas health and safety in the workplace is a public law issue."

I think these quotations should make the matter clear.


> snip
>
>
>
> However, NONE OF THIS IS ANY LONGER RELEVANT, unless someone here can
> persuade me otherwise.
>
> Since Oct 1st, public law is not a concern for ICANN (except perhaps
> in any question that may arise considering the legality or otherwise
> of actions by individual GAC members under their own domestic law).

Only if you define public law as that applicable to public authorities,
which I am unable to agree with. PL see above quotes from a UK legal
website about UK jurisprudence. 
>
> ICANN is an entirely private law based entity.

Completely untrue. It is subject to every single public law of the US.

>
> It deals in domestic private law (i.e. when it contracts with law
> service providers, in whatever context) and international private law
> (when it deals with registries and registries, LARGELY (but not
> necessarily exclusively) under Californian law and its conflict-of-law
> provisions.

In terms of contract, it deals with private law (which still remains in
the oversight of public law), but every internal - organisational
aspect, as well as external -- governance and policy making part,
remains fully subject to all US public laws. It should be so very
obvious. In fact I am thinking, why are we even talking about it. Do you
really believe that ICANN can make policies and do gTLD delegation in a
manner that expressly is in conflict with US competition, or
anti-discrimination law (say, only men can take up certain gTLD), and
the might of the US state in its obligation to enforce US public law
wont come down heavily on any such thing.... Do you really?

parminder
>
> So why are we even talking about it??
>
>
>
> On 17/10/16 06:13, parminder wrote:
>>
>
>>> /"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"/
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