[Ws2-jurisdiction] ISSUE: US Jurisdiction over ICANN's activities that comply with GAC advice or that are otherwise based on powers or prerogatives recognised onto Governments under ICANN's multistakeholder governance model

[Thiago Braz Jardim Oliveira]

Dear All,

For your consideration:

Issue 2: Jurisdiction over ICANN's activities that comply with GAC advice or that are otherwise based on powers or prerogatives recognised onto Governments under ICANN's multistakeholder governance model

Description: The courts of ICANN's place of incorporation are in a unique position to both exercise jurisdiction and enforce judgments (i.e. jurisdiction to prescribe and, more importantly, exclusive enforcement jurisdiction) over disputes in respect of the management of domain names opposing ICANN to some allegedly aggrieved party (for example, a dispute over ICANN's rejection of an application for new gTLDs), based on the "localisation" of the "act complained of" and the "act to be enforced" (i.e. all relating to the management of the root zone by ICANN, which has been said to take place in the territory of the country of incorporation and is subject to the exclusive territorial jurisdiction of that country). These disputes, however, may relate to ICANN's activities that have been the subject of GAC advice or are otherwise based on powers recognised onto Governments according to ICANN's laws (for example, the disputed act may have been prompted by ICANN's decision to follow GAC advice). Activities that have been the subject of GAC advice or of Governmental authority as recognized under ICANN's laws involve public policy issues that are for Governments to act upon on an equal footing. Their settlement should be through agreed dispute settlement mechanisms according to agreed rules, and they should not be subject to the courts of any country nor, for that matter, to the courts of the country of incorporation. Independent accountability mechanisms for review of ICANN's actions will remain in place, and there shall be provision for arbitration in substitution for local courts.

Proposed solution: ICANN shall establish a compulsory dispute settlement mechanism, or commit to have recourse to international arbitration, for disputes relating to ICANN's activities that have been the subject of GAC advice or are otherwise subject to Governmental authority as recognized under ICANN's laws. Once a compulsory dispute settlement mechanism has been agreed for such disputes, ICANN shall seek jurisdictional immunities from the local courts in their respect. In addition, ICANN should include in its agreements an exclusive choice of forum clause, whereby disputes relating to ICANN's activities that have been the subject of GAC advice or that are otherwise subject to Governmental authority as recognized under ICANN's laws shall be settled exclusively through recourse to arbitration. With respect to arbitration in such cases, ICANN shall commit to exercise its party's right to appoint arbitrators in consultation with the GAC or the Governments concerned. Dispute as to whether the GAC or Governments are entitled to exercise powers recognized under ICANN's laws in respect to a given subject, shall be settled through the agreed and compulsory dispute settlement mechanism referred to above, and it should involve the interested parties and the GAC or the Governments concerned.

Best regards,

Thiago
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