[Ws2-jurisdiction] Issue: US's courts' judicial writ over all aspects of ICANN

[Paul Rosenzweig]

Again, this statement is false on its face.  US courts are generally courts of limited jurisdiction and it is simply not the case that “almost any US court” can take up judicial consideration of ICANN’s work.  Minimum requirements include: a plaintiff, with injury in fact, and standing, and subject matter jurisdiction over the issue at suit.  

 

Paul

 

Paul Rosenzweig

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From: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of parminder
Sent: Sunday, August 27, 2017 10:31 PM
To: ws2-jurisdiction at icann.org
Subject: [Ws2-jurisdiction] Issue: US's courts' judicial writ over all aspects of ICANN

 

Issue

As a US based entity, ICANN is subject to full range of US laws. Almost any US court can take up for its judicial consideration whether ICANN works within each of such applicable law or not. This brings up a high likelihood that any time in the future ICANN will have to change under US courts' directions its actions taken in pursuance of its global governance function of developing global DNS related policies and implementing them. This is obviously undemocratic and inappropriate that one country's law and its court decide what a global governance body like ICANN will or will not do.

Further, it is not only a matter of a court actually finding legal fault with an ICANN action and forcing to change it. Knowing that ICANN is subject to the full range of US public law, ICANN would always take care to keep its actions with them (as it has no doubt done till now). This is what is called as the "chilling effect <https://en.wikipedia.org/wiki/Chilling_effect> ". This phenomenon which is already in existence with ICANN's actions, since its inception, is undemocratic and illegitimate from the point of view of the non US people, since they did not participate in making the US laws, and the laws they may have actually developed may even be in contradiction to US law on a particular subject. This phenomenon therefore leads to denial of democratic rights to non US citizens. 

Solution:

Any given court would not heed to any pleadings about ICANN being special as a global governance organisation, and should be treated as such. Neither is the court legally supposed to do, under the US constitution and laws. The only solution there is a general immunity under the US International Organisations Immunities Act, with proper customisation and exceptions for ICANN to enable to be able to perform its organisational activities from within the US. The chief exception I understand would be the application of California non profit law.  

 

 

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