[Ws2-jurisdiction] ISSUE: In rem Jurisdiction over ccTLDs
parminder
parminder at itforchange.net
Wed Aug 23 12:31:00 UTC 2017
On Wednesday 23 August 2017 05:37 PM, farzaneh badii wrote:
> In the .IR case, the court did not decide on whether ccTLD is a
> property or not. Anyhow, I do not think we should go into that
> discussion. I think the important thing to find out is whether the
> court case in .IR is precedential.
>
> I don't think the second part of your solution would work Thiago, if
> jurisdictional immunity is not granted to ccTLDs ( I don't know how we
> can get such jurisdictional immunity and don't forget that some ccTLD
> managers are totally private and not government run).
Jurisdictional immunity, in my understanding, is to be given to ICANN,
including in terms of its ccTLD related actions, and not to ccTLDs or
its managers
>
> The below might not be enforceable:
>
> "ICANN Bylaws an exclusive choice of forum provision, whereby disputes
> relating to the management of any given ccTLD by ICANN shall be
> settled exclusively in the courts of the country to which the ccTLD in
> question refer."
>
> First of all not many ccTLDs have contracts with ICANN. Secondly, in
> third party claims or disputes, for example in case of initiating
> attachment of a ccTLD as an enforcement of a monetary compensation,
> this clause might be challenged and might very well be ineffective.
Agree, choice of law provisions only apply to adjudicating on terms of a
given private contract (private law) and not on public law related
proceedings .
>
>
>
> Farzaneh
>
> On Wed, Aug 23, 2017 at 7:05 AM, Nigel Roberts <nigel at channelisles.net
> <mailto:nigel at channelisles.net>> wrote:
>
> You can make such assertions all you like, but it doesn't make it
> necessarily so.
>
> The best I can offer by way of certainty in the matter is "we
> don't really know, but we can take some guesses".
>
> The difference between the DNS and spectrum is that spectrum
> exists per se. The DNS only exists becuase it was designed and
> constructed.
>
> I could start a different DNS tomorrow. It would not get wide use,
> but it would not differ in any way from the existing DNS.
>
> Furthermore possible new technologies can outdate the current DNS
> (I'm thinking of blockchain) just like SMTP outdated and made
> X.400 useless.
>
>
>
>
> On 23/08/17 11:52, Arasteh wrote:
>
> Dear All
> ccTLD at any level shall not be considered as property or
> attachment at all.
> gTLD including ccTLD are resources like orbital /spectrum
> which are not at possession of any entity but could be used
> under certains rules and procedure established for such use
> Any action by any court to consider it as attachment is illegal
> and illegitimate as DNS shall not be used as a political
> vector or means against any people covered under that DNS.
> Being located in a particular country does I no way grant /
> provide any legal or administrative or judicial right to that
> country . DNS is a universal resources belong to the public
> for use under certains rules and procedure and shall in no way
> be used asa vehicle for political purposes.
> We need to address this issue very closely and separate
> political motivation from technical use.
> Regards
> Kavouss
> Sent from my iPhone
>
> On 23 Aug 2017, at 08:52, <Jorge.Cancio at bakom.admin.ch
> <mailto:Jorge.Cancio at bakom.admin.ch>>
> <Jorge.Cancio at bakom.admin.ch
> <mailto:Jorge.Cancio at bakom.admin.ch>> wrote:
>
> Dear all,
>
> please excuse my ignorance, but have domain names not be
> seized as "assets" or "property" in the US under the
> application of domestic law?
>
> Wikipedia info is here:
> https://en.wikipedia.org/wiki/Operation_In_Our_Sites
> <https://en.wikipedia.org/wiki/Operation_In_Our_Sites>
>
> If a second level domain is subject to potential seizure,
> why not a TLD?
>
> Regards
>
> Jorge
>
> -----Ursprüngliche Nachricht-----
> 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 Nigel Roberts
> Gesendet: Mittwoch, 23. August 2017 08:44
> An: ws2-jurisdiction at icann.org
> <mailto:ws2-jurisdiction at icann.org>
> Betreff: Re: [Ws2-jurisdiction] ISSUE: In rem Jurisdiction
> over ccTLDs
>
> Milto
>
> There is no authority at all for this Claim, in law, as I
> suspect you know.
>
> As I suspect you also know very well, the nearest evidence
> that might support such a Claim is that one of the
> contentions in /Weinstein/ was that a ccTLD (three of
> them, if I remember correctly) could be garnished under
> the "state law" of DC. (I know technically, DC is not a
> state of the Union, but I don't know the US correct
> term-of-art for 'state or capital region')
>
> Unfortunately or fortunately (depending on one's point of
> view) it was not necessary for the Court to decide on this
> claim by the Judgment Debtor. This means that the idea
> that US courts might either have either or both of :-
>
> (a) legal jurisdiction over the ownership of the rights
> represented by a ccTLD delegation
>
> (b) the desire to exercise such (lack of desire to address
> a particular contention usually leads judges in common-law
> systems to be able conveniently to find a creative ratio
> that finds other reasons that the case can be decided
>
> remains a completely open question.
>
> It seems to me that additional hints for future litigants
> (as you know, common-law judges do that too) appear to
> have been given in the Weinstein judgment as to whether
> the rights in law enjoyed by a ccTLD manager (whatever
> they might be) MIGHT constitute property or not, but this
> remarks don't even amount to /obiter dictum/ - they are
> just hints at a possible road of future judicial travel
> and any court seised of a future Claim is entirely free to
> ignore them.
>
> And, even so, those hints don't address the question of
> /in rem/ at all.
>
>
> As you can see, I (along with some others in the ccTLD
> community) havefollowed, and analysed this case carefully
> and in some detail.
>
> We are aware of no other possible legal authority that
> addresses whether ccTLDs are property (let alone whether
> that property, if it is property, is subject to /in rem/
> jurisidiction).
>
> Unless others have additional information?
>
>
>
>
> Nigel Roberts
>
> PS: I would also commend others to read Farzaneh and
> Milton's ccTLD paper.
>
>
> On 22/08/17 22:31, Mueller, Milton L wrote:
>
>
>
>
> Issue 3: In rem Jurisdiction over ccTLDs
>
>
>
> Description: US courts have in rem jurisdiction over
> domain names as a
> result of ICANN's place of incorporation
>
>
>
> What is the evidence for this claim?
>
> --MM
>
>
>
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