[Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

[parminder]

On Friday 28 October 2016 06:33 AM, Mueller, Milton L wrote:
>
> One thing to keep in mind about these court cases. The litigation
> concerns such things as whether ICANN was in breach of contract,
> whether it committed fraud, and whether it needs to be ordered to
> follow the IRP decision.
>

Milton, not sure what you mean by the plural "these court cases". Other
cases in US courts like .xxx and .ir are/ were of a very different
quality and clearly involved issues very different from 'breach of
contract'. Further, even the .africa case involves public law issues of
unfair competition and fraud (yes you mention it, but this does not fall
in private law category as breach of contract does), which are 
determined not as per what the contract between the two private parties
was but what is the law of the US state. which applies to everyone in
the US, without any choice.

> It does _/not/_ put an American court in the position of deciding
> which of two applicants for the .AFRICA domain are the more worthy.
>

In fact if you see the initial judgements, not only the public law
issues of fraud and unfair competition are considered, the court
explicitly applies the 'public interest' test. I would think that means
it is ready to see which side's contentions are 'more worthy'. Further,
I, as a non US citizen would not be ready to go by a US court's
judgement of what is in public interest, especially if one of the
parties be a US entity and other not.

> In other words, the U.S. court in this case is not the policy maker,
>

It is US policies that concretise US public interest, which is not only
put into law but, as shown above, US courts are ready to freely use the
'public interest' criterion (as all courts do).... Now, the whole point
of democracy is to establish just and equitable institutions to
establish 'the public interest' and put it into policies and law. It is
not for other countries' courts - a part of that country's democratic
set up -- to determine 'the public interest'.

The basic issue here for me is democracy, but I have the feeling that,
this often taken for granted right of all people, is not an issue that
concerns much of the discussion here. This thing is being treated more
like we were in a purely commercial arena, just determining mutual
rights of contracting parties alone. That is not true, nor appropriate.

parminder



> it is a settler of legal disputes among contracting or would-be
> contracting parties.
>
>  
>
> --MM
>
>  
>
>  
>
> *From:*ws2-jurisdiction-bounces at icann.org
> [mailto:ws2-jurisdiction-bounces at icann.org] *On Behalf Of
> *Jorge.Cancio at bakom.admin.ch
> *Sent:* Thursday, October 27, 2016 4:00 PM
> *To:* gregshatanipc at gmail.com; ws2-jurisdiction at icann.org
> *Subject:* Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document
>
>  
>
> Hi, here’s the website about the „.africa“ issue I mentioned in the
> chat: http://www.africainonespace.org/litigation.php
>
> Cheers
>
> Jorge
>
>  
>
> *Von:*ws2-jurisdiction-bounces at icann.org
> <mailto:ws2-jurisdiction-bounces at icann.org>
> [mailto:ws2-jurisdiction-bounces at icann.org] *Im Auftrag von *Greg Shatan
> *Gesendet:* Donnerstag, 27. Oktober 2016 20:59
> *An:* ws2-jurisdiction at icann.org <mailto:ws2-jurisdiction at icann.org>
> *Betreff:* [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document
>
>  
>
>  
>
>
>
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