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

[parminder]

On Monday 17 October 2016 09:47 PM, Greg Shatan wrote:
> I would like to clarify one statement that I made earlier, since it
> seems to have been misunderstood.
snip
>  *It appears that in Civil law, stemming from Roman law, the terms
> ​"public law" and "private law" ​
> are used
> ​to ​distinguish and 
> define
> ​, respectively​
> (i) laws
> ​ created by the state​
> governing the activities of the state and the interaction between the
> state and the individual or private entity vs. laws
> ​created by the state ​
> governing the activities of individuals/private entities and their
> interaction with each other.
> ​  Thus, in Civil Law, public law and private law together make up the
> entire body of state-created law.  By contrast, in Common Law usage​,
> at least in the U.S., "public law" refers to the entire body of
> state-created law.
> *
> *
> *
> *​*(As a side note, judge-made precedent generally does not have the
> binding effect in Civil Law that it does in Common Law, but that's not
> really relevant here.) *​*
>
> *
> *
> ​Moving on, ​
> ​I think ​
> ​the distinction between "private law" and "public law" creates
> confusion rather than clarity in this discussion.​  Perhaps it would
> be better to distinguish between "state actions" (i.e., disputes
> initiated by the state against a private party) and "private actions"
> (i.e., disputes initiated by one private party against another).

There are many cases where either state or a private party could
initiate action under the same law.....

IMHO, the real distinction that we may be interested in about whether
(1) choice of jurisdiction is available or (2) not . We as a group are
looking at what we/ ICANN can "do" about the jurisdiction issue, and
therefore the degrees of freedom available is the key element to
consider here.

In cases where choice of jurisdiction may be available, as in writing
contracts, we have a set of issues and recs to determine, for instance,
if a contract is regarding activities that are largely going to take
place in one particular country, it may be prudent to put that choice of
jurisdiction in the contract. This WG can perhaps give a set of recs
like this one.

In cases where no choice of jurisdiction is available, the key issue to
determine is (1) whether this situation is sufferable, and the problems
it creates are not too acute and/ or can be contained in other ways,
and/or (2) whether any possibility of immunisation from US jurisdiction
is available, and workable.

parminder




>
>
> Greg
>
> *
> *
> *
> *
> *
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