[Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

Sun Oct 30 11:17:15 UTC 2016

Parmainder,

I do not understand your argument.

   1.

   what are the objectives to provide immunity to ICANN
   2.

   What we mean by ICANN; Its 20 Board’s members or its 16 elected Board’s
   or the entire ICANN including all staff?
   3.

   You said , quote

“I am sure that jurisdictional immunity can be structured in a manner that
it does not affect 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).”

Unquote

May you kindly provide a valid legal argument that it does not affect th
required judicial processes around accountability enforcement?
What are the precedence in this regard?

Kavouss

2016-10-30 11:54 GMT+01:00 parminder <parminder at itforchange.net>:

>
>
> 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>:
>
>> 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 <%2B1%20%28202%29%20547-0660>
>>
>> M: +1 (202) 329-9650 <%2B1%20%28202%29%20329-9650>
>>
>> VOIP: +1 (202) 738-1739 <%2B1%20%28202%29%20738-1739>
>>
>> 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-bounc
>> es 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 <%2B1%20%28202%29%20547-0660>
>>
>> M: +1 (202) 329-9650 <%2B1%20%28202%29%20329-9650>
>>
>> VOIP: +1 (202) 738-1739 <%2B1%20%28202%29%20738-1739>
>>
>> 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-bounc
>> es 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-bounc
>> es 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-bounc
>> es 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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>>
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>>
>>
>>
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