[Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

parminder parminder at itforchange.net
Sun Oct 30 10:54:35 UTC 2016



On Sunday 30 October 2016 03:55 PM, Kavouss Arasteh wrote:
> 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.

Yes, Kavouss, I fully understand and accept it, all of us take time
coming out of our specific 'locations' into what can become a real
global dialogue oriented to global public interest. But we have time,
and I am sure we will reach there. And thanks for the below cut-pastes,
very useful. parminder



> 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
> <mailto: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
>>     <mailto:paul.rosenzweig at redbranchconsulting.com>
>>
>>     O: +1 (202) 547-0660 <tel:%2B1%20%28202%29%20547-0660>
>>
>>     M: +1 (202) 329-9650 <tel:%2B1%20%28202%29%20329-9650>
>>
>>     VOIP: +1 (202) 738-1739 <tel:%2B1%20%28202%29%20738-1739>
>>
>>     www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
>>
>>     My PGP Key:
>>     http://redbranchconsulting.com/who-we-are/public-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
>>     <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 <mailto: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 <tel:%2B1%20%28202%29%20547-0660>
>>
>>         M: +1 (202) 329-9650 <tel:%2B1%20%28202%29%20329-9650>
>>
>>         VOIP: +1 (202) 738-1739 <tel:%2B1%20%28202%29%20738-1739>
>>
>>         www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
>>
>>         My PGP Key:
>>         http://redbranchconsulting.com/who-we-are/public-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
>>         <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
>>         <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
>>         <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
>>         <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
>>
>>          
>>
>>          
>>
>>
>>
>>
>>         _______________________________________________
>>
>>         Ws2-jurisdiction mailing list
>>
>>         Ws2-jurisdiction at icann.org <mailto:Ws2-jurisdiction at icann.org>
>>
>>         https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>>         <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>
>>
>>      
>>
>     _______________________________________________ Ws2-jurisdiction
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