[Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

Sun Oct 30 10:25:26 UTC 2016

Dear Parminder
I tend to agree with your logic and valid arguments.However, some of our
colleagues who very well understand and agree to your reasoning, insist on
their initial thoughts as they have be under the influence of their local
law and have certain difficulties to think otherwise.
On the other hand, I admire your follow up action as you are the only one
continuing to discuss, examine, analyse and trying to get some workable
things out of it..Other CCWG have taken a silent position which is pity  .
For  ease of référence I have made a simple cut and paste the exchanged
views on the matter. It would be good that people go through that to find
out whether every thing said is consistent and coherent

*Mueller, Milton L via
<https://support.google.com/mail/answer/1311182?hl=fr> icann.org
<http://icann.org> *

*28 oct. (Il y a 2 jours)*

*À Jorge.Cancio, ws2-jurisdicti*

*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*

*Schweighofer Erich **via
<https://support.google.com/mail/answer/1311182?hl=fr>** icann.org
<http://icann.org> *

*28 oct. (Il y a 2 jours)*

*À Milton, Jorge.Cancio, ws2-jurisdicti. *

*Thanks for this important comment. BUT: formal procedures decide the
outcome of legal disputes, even if sufficient respect for the applicable
law and autonomy of ICANN is accepted by the Court. It reminds me of the
Cadi case here at the ECJ. Formally, UN law was accepted but for ordre
public reasons not given full effect. Disputes must be settled in a proper
forum and forum shopping must be avoided. *

*Erich Schweighofer*

*Paul Rosenzweig **via
<https://support.google.com/mail/answer/1311182?hl=fr>** icann.org
<http://icann.org> *

*28 oct. (Il y a 2 jours)*

*À Milton, Jorge.Cancio, ws2-jurisdicti. *

*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.  *

* Paul*

*Paul Rosenzweig*

*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 *

*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*

*On Saturday 29 October 2016 07:37 PM, Paul Rosenzweig wrote: *

*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, on the contrary I'd request you, lets talk on facts, and not
fanciful notions. It is plain wrong to say that US public law applies on
ICANN in the same way as Turkish or Indian law does. I dont know why are
you even proposing such a completely unsustainable notion. I am not sure
how to express my strong feelings against such a falsehood but let me try
this: I am fine if this group makes a clear determination that "US public
law applies to ICANN in exactly the same manner as of any other country"
and writes it down as a finding in its report. I will like to see how a
group of such well respected people and experts says such a thing. Of
course, I am saying this bec I know that the group would never formally
enter such a determination. But now since you have made this claim, and I
do remember you have made it a few times earlier, and no one else has
refuted it, Let me make a few points, but very briefly, bec I really do not
consider this a serious proposition at all. I gave many examples of how US
public law can interfere with ICANN's policy operation. Can you provide me
with corresponding ways in which another country's law can interfere in the
same or even similar way.... I do not want to bore the group by re listing
all those examples, which I have done more than once in this discussion. A
US court can change the decision of delegation of any gTLD, wherever the
registry may be based. It can also impose the wisdom of US law over the
domain allocation conditions of a gTLD. This it can do by direct fiat to
ICANN. Other countries can interfere in operation of the DNS within their
jurisdiction. They can direct registries and registrars located within
their jurisdiction to act or not act in certain ways. US, on the other
hand, can directly force the hand of ICANN in terms of its entire global
operation, policy making as well as implementation work, including changes
in the root file. I work in the management of an Indian non profit, which
does multi country research projects. It would be most astonishing for me
to hear that my non profit is equally subject to non Indian jurisdictions
as it is to the Indian law. I am quite painfully aware that this is not a
fact, not even close to it. For instance, when we do multi country project
coordinated and run from India, I fully know how Indian law applies on the
entirety of our actions and therefore of the overall project, whereas the
courts of another country where a research team may do research for/ with
us can interfere within that county for that part of the project. it is so
simple and commonly understood, I wonder why am I even arguing it. Please
lets not trash other people's important concerns in such of hand-ish
manner... US's public law being applied unilaterally on the ICANN is a real
problem with regard to the latter's global governance function. Let us
explore what we can do*

2016-10-30 10:53 GMT+01:00 parminder <parminder at itforchange.net>:

> On Saturday 29 October 2016 07:37 PM, Paul Rosenzweig wrote:
>
> 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, on the contrary I'd request you, lets talk on facts, and not
> fanciful notions.
>
> It is plain wrong to say that US public law applies on ICANN in the same
> way as Turkish or Indian law does. I dont know why are you even proposing
> such a completely unsustainable notion. I am not sure how to express my
> strong feelings against such a falsehood but let me try this: I am fine if
> this group makes a clear determination that "US public law applies to ICANN
> in exactly the same manner as of any other country" and writes it down as a
> finding in its report. I will like to see how a group of such well
> respected people and experts says such a thing. Of course, I am saying this
> bec I know that the group would never formally enter such a determination.
>
> But now since you have made this claim, and I do remember you have made it
> a few times earlier, and no one else has refuted it, Let me make a few
> points, but very briefly, bec I really do not consider this a serious
> proposition at all.
>
> I gave many examples of how US public law can interfere with ICANN's
> policy operation. Can you provide me with corresponding ways in which
> another country's law can interfere in the same or even similar way.... I
> do not want to bore the group by re listing all those examples, which I
> have done more than once in this discussion.
>
> A US court can change the decision of delegation of any gTLD, wherever the
> registry may be based. It can also impose the wisdom of US law over the
> domain allocation conditions of a gTLD. This it can do by direct fiat to
> ICANN.
>
> Other countries can interfere in operation of the DNS within their
> jurisdiction. They can direct registries and registrars located within
> their jurisdiction to act or not act in certain ways. US, on the other
> hand, can directly force the hand of ICANN in terms of its entire global
> operation, policy making as well as implementation work, including changes
> in the root file.
>
> I work in the management of an Indian non profit, which does multi country
> research projects. It would be most astonishing for me to hear that my non
> profit is equally subject to non Indian jurisdictions as it is to the
> Indian law. I am quite painfully aware that this is not a fact, not even
> close to it. For instance, when we do multi country project coordinated and
> run from India, I fully know how Indian law applies on the entirety of our
> actions and therefore of the overall project, whereas the courts of another
> country where a research team may do research for/ with us can interfere
> within that county for that part of the project. it is so simple and
> commonly understood, I wonder why am I even arguing it.
>
> Please lets not trash other people's important concerns in such
> offhand-ish manner... US's public law being applied unilaterally on the
> ICANN is a real problem with regard to the latter's global governance
> function. Let us explore what we can do about it..
>
>
> parminder
>
>
>
>
>
>
> Paul
>
>
>
> Paul Rosenzweig
>
> paul.rosenzweig at redbranchconsulting.com
>
> O: +1 (202) 547-0660
>
> M: +1 (202) 329-9650
>
> VOIP: +1 (202) 738-1739
>
> 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 <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
>
> O: +1 (202) 547-0660
>
> M: +1 (202) 329-9650
>
> VOIP: +1 (202) 738-1739
>
> 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 <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; 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 <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 <ws2-jurisdiction-bounces at icann.org>] *Im Auftrag von *Greg
> Shatan
> *Gesendet:* Donnerstag, 27. Oktober 2016 20:59
> *An:* ws2-jurisdiction at icann.org
> *Betreff:* [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document
>
>
>
>
>
>
>
>
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>
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>
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