[Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

Sat Oct 29 14:07:16 UTC 2016

I'm sorry, but that's just wrong Paraminder.  The fact that ICANN is a US
corproaration has nothing to do with its subject to public law in any way
different than the fact that it has an office in Istabul subjects it to
Turkish public law.  To the extent ICANN operates as a coroporation it is
subject to the public law of every jurisdiction where it operates.  It can
be sued for anti-competitive behavior in India today, if someone were so
minded, provided that an allegation of violating Indian law could be raised.

Paul

Paul Rosenzweig

 <mailto:paul.rosenzweig at redbranchconsulting.com>
paul.rosenzweig at redbranchconsulting.com

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From: ws2-jurisdiction-bounces at icann.org
[mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of parminder
Sent: Saturday, October 29, 2016 5:30 AM
To: ws2-jurisdiction at icann.org
Subject: Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

On Friday 28 October 2016 07:39 PM, Paul Rosenzweig wrote:

To which one needs to add that the principal reason the case is in
California is that California is specified as the venue (and also as the
substantive decisional law) in ICANN's contracts.  As a general matter ICANN
is free to specify that the next such dispute be determined by an arbital
panel in London (as an example) if it wishes, or using Swiss (another
example) concepts of procedural due process.  

This may be true for issues of breach of contract, but not for issues of
public law, like anti competitive practices, or fraud. In the latter set,
there is no choice of law available. ICANN as US not profit is subject to US
law and can be sued under it, or the state may take suo moto action.

As from tis discussion, It has been clear during the working of this group
that, in terms of the mandate of this group to give recs on the jurisdiction
issue, there are two very different set of issues that come up for
consideration which will require very different kind of recs.

One set is of such issues where a choice of jurisdiction is available. With
regard to these issues, this subgroup has to determine how this available
choice should be exercised.

The second set is of such issues where no choice of application of law is
available, and the law of the place of incorporation and HQ applies. This is
the trickly part, and we have to determine (1) what kind of problems may
faced in the future, (2) how serious they are, their ramifications etc, (3)
what, if anything at all, can be done with regard to this issue (4) what are
the benefits and drawbacks of different possible options, (5) considering
all these elements, is it worth recommending one or more options. 

It will be most useful is our work is organised in line with the kind of
recommendations that we may make, which I see is as above. I do not see why
our current documents keep these two different kinds of issues mixed, which
admit of very different 'jurisdictional' treatment. Neither can I understand
the logic of trying to eliminate right away some possible options that come
much later in the discussion, instead of leading a structured discussion
towards them. 

parminder 

Paul

Paul Rosenzweig

paul.rosenzweig at redbranchconsulting.com
<mailto:paul.rosenzweig at redbranchconsulting.com> 

O: +1 (202) 547-0660

M: +1 (202) 329-9650

VOIP: +1 (202) 738-1739

www.redbranchconsulting.com <http://www.redbranchconsulting.com/> 

My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ 

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: Thursday, October 27, 2016 9:04 PM
To: Jorge.Cancio at bakom.admin.ch <mailto:Jorge.Cancio at bakom.admin.ch> ;
ws2-jurisdiction at icann.org <mailto:ws2-jurisdiction at icann.org> 
Subject: Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

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. 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 other words, the
U.S. court in this case is not the policy maker, 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>
[mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of
Jorge.Cancio at bakom.admin.ch <mailto:Jorge.Cancio at bakom.admin.ch> 
Sent: Thursday, October 27, 2016 4:00 PM
To: gregshatanipc at gmail.com <mailto:gregshatanipc at gmail.com> ;
ws2-jurisdiction at icann.org <mailto: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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