[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
>>
>>
>>
>>
>>
>>
>>
>>
>> _______________________________________________
>>
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>>
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>>
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>>
>>
>>
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