[Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

parminder parminder at itforchange.net
Sun Oct 30 10:33:44 UTC 2016 

In the google doc on 'multiple layers of jurisdiction' I see the comment
made by Greg that (1) any jurisdictional immunity for ICANN will require
multilateral treaty, and (2) could block accountability enforcement
mechanism.

I think these are the key issues to discuss.

Reg 1 above, it is not true. I just now added the following in the
google doc.

"It is possible to obtain jurisdictional immunity for ICANN without
entering into multilateral treaties/ conventions. This can be done under
United States International Organisations Immunities Act(see
https://archive.icann.org/en/psc/annex9.pdf). There is precedent of such
immunities being given to organisations that, like ICANN, are registered
as an non profit. This study commissioned by ICANN
<https://archive.icann.org/en/psc/corell-24aug06.html>cites the example
of International Fertilizer and Development Center which was designated
as a public, nonprofit, international organisation by US Presidential
Decree, granting it immunities under the mentioned US Act."


As for 2 above, one, I am sure that jurisdictional immunity can be
structured in a manner that it does not effect th required judicial
processes around accountability enforcement, and two, accountability
enforcement processes are in any case private law issues and a
jurisdiction can be specifically chosen for its enforcement (preferably
US jurisdiction).

I will like to hear arguments why we should not recommend that ICANN be
granted jurisdictional immunity by using the above mentioned US Act. Is
there at all any case against it?

I will like this issue brought up at the f2f meeting in Hyderabad.

parminder 


On Sunday 30 October 2016 03:23 PM, parminder wrote:
> 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
>> <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] *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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>>
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>>
>>  
>>
>
>
>
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