[Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

Mon Oct 31 16:49:12 UTC 2016

Paraminder

US public law applies to all corporations that conduct business in the US.
That is true of corporations that are headquartered outside the United
States but which conduct business operations inside the United States - like
Tata or BMW.  Hence the place of incorporation is irrelevant.  The exact
same is true of India and most every other nation in the world.  An easy
example is the antitrust suit currently pending against Google in the EU.
There is nothing in law or policy that would prevent the EU from bringing a
public law action against ICANN if it chose to.  Indeed, India has begun a
similar investigation
(http://www.nytimes.com/2015/09/02/technology/google-antitrust-investigation
s-spread-across-the-globe.html?login=email
<http://www.nytimes.com/2015/09/02/technology/google-antitrust-investigation
s-spread-across-the-globe.html?login=email&_r=1> &_r=1) 

As for your non-profit, I suspect that it does not conduct any business or
operations in the United States and/or the EU.  If it does, you are subject
to suit.

I should add, by the way, that you misread the US International
Organizational Immunites Act which by its terms applies only to public
international organizations in which the US participates pursuant to a
treaty.  We don't participate in ICANN pursuant to treaty.   And the
President cannot by decree convert a private organization (ICANN) into a
public one.

Paul

Paul Rosenzweig

 <mailto:paul.rosenzweig at redbranchconsulting.com>
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From: parminder [mailto:parminder at itforchange.net] 
Sent: Sunday, October 30, 2016 5:54 AM
To: Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com>;
ws2-jurisdiction at icann.org
Subject: Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

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>
[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

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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