[Ws2-jurisdiction] ISSUE: In rem Jurisdiction over ccTLDs
parminder
parminder at itforchange.net
Thu Aug 24 16:26:14 UTC 2017
Thanks Milton for restating the facts of the case.
It is significant that
(1) the US court exercised its jurisdiction over the relationship
between a ccTLD and ICANN, and did not refrain from exercising
jurisdiction. This is a most important point to note.
(2) Even if provisionally, it did proceed as if a ccTLD is sizeable
property.
(3) It rightly decided that on the balance a seizure of ccTLD would much
more adversely affect the interests of ICANN, a US party, even when it
was at no fault, than it could cause positive benefit to the interests
of the party which brought the suit. And therefore the court dismissed
it. However, in another case, the balance could be decided by the court
to be different, especially if ICANN could also be judged, in the wisdom
of the court, to have been procedurally or substantially deficient, and
the nature of the interests of the plaintiff that are involved judged to
be high importance, such that to deny the latter be considered as a
miscarriage of justice, while the corresponding loss to ICANN, given its
partial deficiency, not so much. The question is, what happens then? We
are trying to provide for such cases.
parminder
On Thursday 24 August 2017 08:30 PM, Mueller, Milton L wrote:
>
> Some people have shown a lack of awareness of the nature of the
> Appeals Court decision regarding the .IR ccTLD Paul is discussing
> below. So here is our summary of its import:
>
>
>
> The latest decision in the ICANN case departed sharply from prior
> legal precedents. The court looked beyond the narrow issue of whether
> the .IR ccTLD was attachable property. It assumed, “without deciding,”
> that “the ccTLDs the plaintiffs seek constitute ‘property’ under the
> Foreign Sovereigns Immunity Act and, further, that the defendant
> sovereigns have some attachable ownership interest in them.” Thus
> ICANN’s weak arguments against the property status of TLDs had no
> impact on the decision. Instead, the court refused to allow the .IR
> domain to be seized because:
>
>
>
> “the court has the “authority” to “prevent appropriately the
> impairment of an interest held by a person who is not liable
>
> in the action giving rise to a judgment” — i.e., we are expressly
> authorized to protect the interests of ICANN and other entities.
> Because of the enormous third-party interests at stake—and because
> there is no way to execute on the plaintiffs’ judgments without
> impairing those interests—we cannot permit attachment.”
>
>
>
> By “requiring ICANN to delegate ‘.ir’ to the plaintiffs,” the court
> opined, the plaintiffs “would bypass ICANN’s process for ccTLD
> delegation” and this would have a harmful impact on the global DNS and
> on ICANN itself.
>
>
>
> So, to summarize: TLDs may well be attachable property, but in this
> case, and in most conceivable ccTLD redelegation cases, the court
> decided that court-ordered seizure of the ccTLD would impair the
> interest of ICANN in a globally acceptable delegation process and
> possible also impair the interest of its registrants.
>
>
>
> --MM
>
>
>
>
>
> *From:* ws2-jurisdiction-bounces at icann.org
> [mailto:ws2-jurisdiction-bounces at icann.org] *On Behalf Of *Phil Corwin
> *Sent:* Wednesday, August 23, 2017 4:04 PM
> *To:* Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com>
> *Cc:* ws2-jurisdiction <ws2-jurisdiction at icann.org>
> *Subject:* Re: [Ws2-jurisdiction] ISSUE: In rem Jurisdiction over ccTLDs
>
>
>
> Agree on all 4 points and the conclusion
>
> Philip S. Corwin, Founding Principal
>
> Virtualaw LLC
>
> 1155 F Street, NW
>
> Suite 1050
>
> Washington, DC 20004
>
> 202-559-8597/Direct
>
> 202-559-8750/Fax
>
> 202-255-6172/Cell
>
>
>
> Twitter: @VLawDC
>
>
>
> "Luck is the residue of design" -- Branch Rickey
>
>
>
> Sent from my iPad
>
>
> On Aug 23, 2017, at 1:06 PM, Paul Rosenzweig
> <paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>> wrote:
>
> Dear Farzaneh
>
>
>
> Regarding the question of precedent – it depends what you mean
> 😊. The US court system is mostly geographically based. As a
> result the only court that can bind the entire court system of the
> nation is the US Supreme Court. As a matter of pure law, the
> decision in the .IR case, which was handed down by a court of
> appeals in the District of Columbia (i.e. the US capitol –
> Washington) is binding, mandatory precedent ONLY here in
> Washington DC. That having been said:
>
>
>
> 1. Since the US government is here in Washington, many important
> and precedent setting cases (like this one) are decided in
> Washington and then the rest of the country’s courts tend to
> follow the lead of the DC court – not because they are legally
> required to do so, but because in our system it is rare (not
> unheard of, but rare) for courts outside Washington to
> purposefully set up a conflict with the DC court.
> 2. This is especially so because the court in Washington is
> considered by most to be the second most important and
> influential court in the country, after the US Supreme Court.
> So much so that 3 of the current Justices (there are 9 total)
> were first judges in the DC court.
> 3. It is also likely to be followed outside of DC because it is
> actually the “right” decision (to the extent anything in law
> is ever “right”). There was no disagreement in DC – 3 judges
> all voted the same way (and affirmed a 4^th lower court judge
> who came to the same answer through a different argument).
> 4. Finally, note that in cases like this, the lawyers only get
> paid if they win. Having lost the .IR case so decisively, it
> is unlikely that many lawyers will want to waste time and
> money trying again.
>
>
>
> I think ICANN won a significant victory in the .IR case that will
> be very, very likely to hold up in the long run. At least that is
> what I would advise a client if they asked me.
>
>
>
> Cheers
>
> 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
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>
> My PGP Key:
> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
>
>
>
> *From:* ws2-jurisdiction-bounces at icann.org
> <mailto:ws2-jurisdiction-bounces at icann.org>
> [mailto:ws2-jurisdiction-bounces at icann.org] *On Behalf Of
> *farzaneh badii
> *Sent:* Wednesday, August 23, 2017 8:07 AM
> *To:* Nigel Roberts <nigel at channelisles.net
> <mailto:nigel at channelisles.net>>
> *Cc:* ws2-jurisdiction <ws2-jurisdiction at icann.org
> <mailto:ws2-jurisdiction at icann.org>>
> *Subject:* Re: [Ws2-jurisdiction] ISSUE: In rem Jurisdiction over
> ccTLDs
>
>
>
> 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).
>
>
>
> 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.
>
>
>
>
>
>
> 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
>
> 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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