[Ws2-jurisdiction] ISSUE: In rem Jurisdiction over ccTLDs
parminder
parminder at itforchange.net
Thu Aug 24 16:36:20 UTC 2017
On Thursday 24 August 2017 09:56 PM, parminder wrote:
>
> 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.
>
meant, sieze-able 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
>>
>> www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
>>
>> 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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