[Ws2-jurisdiction] Case summary - 2 drafts for your review
Greg Shatan
gregshatanipc at gmail.com
Wed Feb 1 00:59:24 UTC 2017
Kavouss,
Please allow me to add my answers to Paul’s answers. I’ve put my answers
in red, and Paul’s in blue, to distinguish them. (I’ve also taken the
liberty of putting Paul’s answers in “sentence case.”)
I’m not sure why you were not convinced by Paul’s answers, as they seemed
quite accurate to me. In any event, let me see if I can add something
helpful.
Before getting to the questions -- the issue of “choice of law” is neither
unforeseen nor particularly unpredictable. “Choice of Law”, also known as
“Conflict of Law” (or “Conflicts of Laws”), is a standard and
well-developed area of law and jurisprudence, in the US and elsewhere, with
roots going back centuries. It’s taught in every law school I know of. Of
course, the law of Choice of Law is growing and developing and there are
different approaches in different jurisdictions and depending on the type
of case as well.
It’s also not unforeseen in our work. “Choice of law” is one of the
“layers of jurisdiction” we have been referring to since the beginning of
our work.
At the end of this answer, I’ve appended a fairly short summary of US
choice of law rules, which has been at the end of the “Influence of
jurisdiction” Google doc for some months now. To the extent that you find
my explanation, as well as Paul’s, insufficient, I think this summary will
be quite helpful. This was taken from the website of the Proskauer law
firm, a first rate firm (and not one I’ve been associated with).
Kavouss: My Questions are
a. What do you mean by *(the substantive law to apply?)*
Paul: I mean the law that will be used to decide the case. For example, it
may be against the law, in say, India, for ICANN to refuse to publish its
financial data publicly (I am making this example up of course – i don’t
know what Indian law is). If the court or arbitrator hearing the case
decided that Indian law was the applicable substantive law, it would then
have to make a decision about whether or not ICANN was violating the
substantive law. In other words, it would have to decide what Indian law
requires and whether or not ICANN had complied. The Indian law here would
be the substantive law to apply to the case.
Greg: This is one of the “layers of jurisdiction.” When we have referred
to “choice of law”, this is a reference to the choice of which
jurisdiction’s “substantive law” will apply to the case. Another term for
this is the “governing law” of the case.
b. If the parties made a choice of law , say e.g. Swiss Law, should the
case be sent to a Swiss Court or as you said the case still would be
treated by the Court to which it was submitted but the Court merely applies
Swiss Law.
Paul: That very much depends on where the suit is brought and what else the
parties have said. For example, the parties could say “Swiss law applies
but the case will be heard in London arbitration” or “Swiss law applies and
the case should be in Swiss court” for the second of these, if someone
brought a suit in the us courts anyway, the us courts would generally defer
to the language of the contract and dismiss the case with direction to
refile it in Switzerland. I do not know what the law would be if the suit
were in India or Iran or the UK or France though.
The harder question is when the parties say that “Swiss law applies” but
they don’t say anything about where the court case should be. Then the
courts would have to decide – in the US that decision would be based on
questions of convenience (where are the witnesses, for example?) And other
similarly equitable questions. Again, I have no idea how an
Indian/Iranian/UK/French court would answer the question.
Greg: As Paul notes, in a case involving a contract, the parties may have
specified both the “choice of law” (e.g., Swiss law) and the “venue” (e.g.,
ICC arbitration in London or a Swiss Court, or “the Federal and State
courts in Los Angeles County, California”). If the parties do not contest
these choices later, the courts (in the US and elsewhere) will generally
tend to give deference to the parties’ choices.
For the purpose of your question, I would assume that the parties have
specified a choice of law, but not a choice of venue. Thus, the plaintiff
could choose to bring the case anywhere the plaintiff would have standing
and the court would have “personal jurisdiction” over the defendant (i.e.,
they could get and keep the defendant in that court). The defendant could
contest the choice of venue, or the court could *sua sponte (*on its own
initiative) look at whether it was an appropriate forum for the case. As
Paul indicates, this could in either case be a question of
inconvenience (*forum
non conveniens)* (where are the witnesses, where are the documents, what is
the language of the documents?) and/or “minimum contacts.” (How relevant
is this forum to the case?) The court may also look at its own ability to
apply the substantive law of another jurisdiction.
If the court determined it was not an appropriate forum, the court would
typically dismiss the case. There is no system I’m aware of to send a case
from one country to another country. The plaintiff would then have to
refile in a more appropriate venue.
Assuming the parties do not contest the choice of venue, and the court does
not determine that it is an inappropriate forum, the case would likely stay
in the original court, and the court would apply Swiss law in this
example. It is not at all uncommon (in the US or elsewhere) for a court to
apply the substantive law of another jurisdiction. Indeed, this is one of
the reasons that “choice of law” (also known as “conflict of law”) rules
exist.
Kavouss: In the latter case, to what extent the Court could claim that it
is fully familiar to all details of Swiss Law? Take the extreme case that
there would agreements for 20, 30 ... choice of Law for 20, 30 different
cases. Do you believe that the Court in question would be familiar with the
details of all 20, 30 Laws ? I find it very difficult that ,e.g. a State
Court in any country would have such vast knowledge of all laws that
mentioned above
Paul: If a court kept a case but had to apply Swiss law, the court would
have to be educated in the law. That might be by the parties or the court
might ask an expert. In the US we also have a process (not used that
often) where the US court could certify the question to a Swiss court and
ask it for the answer. The difficulty in learning the law is another one
of the equitable factors that might make a us court transfer the case to
Switzerland if the parties have not specified that in contract to stay in
the us.
Greg: The Court would not claim it is already familiar with all the
details of another jurisdiction’s law. That is not the assumption that
underlies the concept of a court applying the law of another jurisdiction.
Rather, as Paul notes, the parties would be required to provide information
necessary for the court to apply the law. This may include hiring an
expert in the law of the jurisdiction. This would almost certainly be
required for each party when preparing their papers. The expert may also
be called on to testify on the law. Each party may have their own expert
in that law. The court may also bring in its own expert, instead of or in
addition to hearing from the parties’ experts.
Situations can arise where the laws of different jurisdictions might apply
to different aspects of the case. In this situation, a court has little
choice but to deal with the law of another jurisdiction (or jurisdictions)
in addition to its own law.
In any event, the court would not need to have or gain a wide knowledge of
the law of the other jurisdiction; it would only need to deal with the laws
that are implicated in the case.
c. If case that there is no previously agreed for a choice of Law, why it
would not be possible that the parties be asked for the choice of Law
before the Court in question starts discussing the case.
An extreme situation of that was the case of "Y" that the defendant had no
information that at a given date a plaintiff would submit a case to any
Court thus there was possibility to choose a given Law. Then wouldn't it
be logical that both parties be given the opportunity to choose a given Law?
Paul: Usually, parties make the choice of law beforehand when they enter a
contract. If they don’t then it is unlikely that they will agree when the
law suit starts – after all, they are now fighting in court and I assume
that one of the parties will look at it and say “I win under Swiss law” and
the other will say to itself “since we may lose under Swiss law, let’s ask
for Indian law.” If the parties were in agreement as to applicable law, a
US court would probably honor that agreement – but it is much more likely
that they would disagree.
Greg: In any court case, it’s ultimately up to the court what law will
apply. As noted before, if the parties have made a choice in a contract,
the court will typically defer to that choice, but the court retains the
right to determine that the chosen law is not appropriate.
If the parties have not agreed on a choice of law, the court will make that
determination. If it’s obvious (e.g., the parties are resident in the same
jurisdiction, all relevant activity took place in that jurisdiction, etc.),
it’s likely that little attention will be paid to the issue (because it’s a
non-issue). Where there is a real question as to what law applies, one or
both parties are likely to seize on this and try to convince the court
which law to apply, based on well-settled choice of law rules. The court
could also ask both parties to brief the issue, even if the parties did not
raise it, if there was a genuine issue, and the answer under choice of law
rules was not obvious.
Of course, if the parties can agree that a particular law applies, and it
is reasonable and consistent with choice of law principles, they are very
likely that the judge will agree as well.
Best regards,
Greg
*Annex I*
Summary of US choice of law rules (from
http://www.proskauerguide.com/litigation/7/IV)
A. There are several distinct choice of law regimes that have emerged,
with states falling into one or more in their choice of law analysis. The
principal regimes are discussed below.
B. *The “traditional” test: the First Restatement*
1. Under the traditional test of the First Restatement, followed fully
in some jurisdictions today (such as Maryland, Virginia, New Mexico, South
Carolina, Georgia, Alabama, Wyoming and Kansas), the law that applies
depends on the cause of action and on single points of contact.
a. Torts and Fraud: Torts are governed in nearly all issues by the law
of the place of wrong, “the state where the last event necessary to make an
actor liable for an alleged tort takes place.” Restatement (First) of
Conflict of Laws § 377. In most cases the last event is the event causing
injury and so the place of the wrong is effectively the place of injury.
Frauds are similarly governed by the place of the wrong, which is where the
loss is sustained, not where the fraudulent misrepresentation is made. *Id*.,
illus. 4.
b. Contracts: In contracts, claims regarding the validity (capacity,
formalities, consideration and defenses) are governed by the place where
the contract was made, where “the principal event necessary to make a
contract occurs.” *Id*. §§ 311 cmt. d, 332 (1934).
c. Property: Questions concerning interests in land are governed
generally by the law of the *situs*. In the case of movables, the law of
the place where the movable was located at the time of the transaction
generally applies.
C. *The “significant relationship” test: the Second Restatement*
1. The Second Restatement contains certain sections governing specific
causes of action as well as an umbrella “significant relationship” test in
Section 6(2). The specific sections governing torts, fraud and contract
each refer back to the principles and overriding “significant relationship”
test. Some version of the Second Restatement is followed by the majority of
States (for example, New York, Delaware, Colorado, Connecticut, Alaska,
Arizona, California (contracts only), Idaho, Illinois, Iowa, Maine,
Mississippi, Missouri, Montana, Nebraska, South Dakota, Ohio, Texas, Utah,
Vermont, and Washington). *See* Symeon C. Symeonides, *Choice of Law in the
American Courts in 2006: Twentieth Annual Survey*, 54 Am. J. Comp. Law 697,
712 (2006).
2. The Section 6(2) “Significant relationship” test: Section 6(2)
provides that, subject to constitutional limitations, courts must follow
the statutory directives of their own state on choice of law. In the
absence of any, the factors relevant to the analysis of the applicable law
include:
a. the needs of the interstate and international systems,
b. the relevant policies of the forum,
c. the relevant policies of other interested states and the relative
interests of those states in the determination of the particular issue,
d. the protection of justified expectations,
e. the basic policies underlying the particular field of law,
f. certainty, predictability and uniformity of result, and
g. ease in the determination and application of the law to be applied.
3. The Second Restatement provides choice of law rules for each cause
of action separately, with the analysis reverting to the ”significant
relationship” test.
a. Torts: The rights and liabilities with respect to issues in torts
are determined by the local law of the state which, with respect to that
issue, has the most significant relationship under the principles stated in
Section 6. Second Restatement § 145. Contacts to be taken into account in
applying the Section 6 principles are:
i. the place
where the injury occurred,
ii. the place
where the conduct causing the injury occurred,
iii. the
domicile, residence, nationality, place of incorporation and place of
business of the parties, and
iv. the place
where the relationship, if any, between the parties is centered.
b. Fraud: Where the plaintiff’s actions in reliance on the
misrepresentation took place in the same state as that in which the
misrepresentations were made, that state’s laws will govern *unless* another
state has a more significant relationship under Section 6. Second
Restatement § 148.
c. Where the plaintiff’s actions in reliance took place in whole or in
part in a state other than that where the misrepresentations were made, the
following contacts will be considered in determining which state has the
most significant relationship:
i. the place
where the plaintiff acted in reliance upon the representations,
ii. the place
where the plaintiff received the representations,
iii. the place
where the defendant made the representations,
iv. the
domicile, residence, nationality, place of incorporation and place of
business of the parties,
v. the place
where a tangible thing which is the subject of the transaction between the
parties was situated at the time, and
vi. the place
where the plaintiff is to render performance under a contract which he has
been induced to enter by the false representations of the defendant.
d. Contract: In the first instance, the courts must give effect to the
law chosen by the parties. In the absence of any such agreement, the courts
are directed to the “significant relationship” test of Section 6.
Restatement (Second) of Conflict of Laws § 188. The contacts to take into
account in determining those principles are:
i. the place
of contracting,
ii. the place
of negotiation of the contract,
iii. the place
of performance,
iv. the location
of the subject matter of the contract, and
v. the
domicile, residence, nationality, place of incorporation and place of
business of the parties.
e. If the place of negotiating the contract and the place of
performance are in the same state, the law of that state will usually
apply, except as provided in the sections regarding specific kinds of
contracts (e.g. contracts relating to the transfer of interests in land or
chattel, life, fire, surety or casualty insurance, contracts of suretyship,
repayment of loans, services, or transportation). In those sections, the
Restatement directs application of a specific state’s law subject to the
“significant relationship” test of Section 6.
4. New York courts employ, relatively consistently, a version of the
“significant relationship” test, applying the law of the state with the
greatest concern for the specific issue. *Babcock v. Jackson*, 12 N.Y.2d
473 (1963).
D. *The “governmental interest analysis” test:*
1. Many states are moving to, or already incorporate, some version of
the government interest analysis test which is in some measure incorporated
in the “substantial relationship” test of the Second Restatement.
California uses this test in determining the law applicable to tort claims.
2. The law of the forum is presumed to apply unless a party
demonstrates otherwise. *Washington Mut. Bank v. Superior Court*, 15 P.3d
1071, 1080 (2001). The burden of proof is on the proponent of the non-U.S.
law to show that it “*materially differs*” from the forum and that applying
the non-U.S. law will further the interest of the non-U.S. jurisdiction.
*Id*. The non-U.S. law is presumed to be the same as the law of the forum
absent a showing to the contrary. *United States v. Westinghouse Elec.
Corp.*, 648 F.2d 642, 647 n.1 (9th Cir. 1981) Absent the non-U.S. law
proponent carrying its burden, the forum law governs. *In re Seagate Tech.
Sec. Litig.*, 115 F.R.D. 264, 269 (N.D. Cal. 1987).
3. The government interest analysis is a three step one. First, the
court determines whether the non-U.S. law differs from that of the forum.
If not, there is no conflict, and the forum law applies.
a. The non-U.S. law that is invoked must “materially differ” from the
forum law. *Garamendi v. Mission Ins. Co.*, 131 Cal. App. 4th 30, 41, 31
(2005) (absent a showing of “conflicting authority” in the non-U.S.
jurisdictions, the forum law applies)
b. Laws are “materially different” if their application would lead to
different results. *Costco Wholesale Corp. v. Liberty Mut. Ins. Co.*, 472
F. Supp. 2d 1183, 1200 (S.D. Cal. 2007).
4. Second, if there is a difference, the court examines each
jurisdiction’s interest in the application of its own law to determine
whether a “true conflict” exists. If not, and only one jurisdiction
actually has a governmental interest in having its laws apply, there is
only a “false conflict” and the law of the interested jurisdiction will
apply.
a. But even where the forum’s interest is too weak to sustain its side
of a “true conflict,” the non-U.S. state must still be shown to have its
own legitimate interest in applying its laws. *McGhee v. Arabian Am. Oil
Co.*, 871 F.2d 1412, 1424 (9th Cir. 1989).
b. Where neither state has an interest in applying its laws, the laws
of the forum will apply.
5. Third, if there is a “true conflict” and each jurisdiction has a
legitimate interest in the application of its rule of decision, then the
court analyzes the “comparative impairment” of the interested jurisdictions
to identify the law of the state whose interest would be the more impaired
if its law were not applied.
a. The analysis does not involve weighing the government interests in
the sense of determining which law is worthier or best, but as a process of
allocating respective “spheres of lawmaking influence.” *Offshore Rental
Co. v. Continental Oil Co.*, 583 P.2d 721, 726 (Sup. Ct. Cal. 1978); *McGhee
v. Arabian Am. Oil Co.*, 871 F.2d 1412, 1422 (9th Cir. 1989).
b. In determining the policies and interests of a non-U.S. state,
courts – looking to case law or legislative histories – may make their own
determinations independent of what the parties demonstrate. *See Offshore
Rental*, 583 P.2d at 725, n.5.
c. The courts will consider the various contacts in determining which
state has the greater interest and would suffer the greater impairment,
such as the *situs* of the injury, the *situs* of the wrongful conduct, the
domicile and business of the parties, and the place of contracting.
6. The governmental interest analysis considers what is in the
competing states’ public policy interests. Where a non-U.S. law violates
the forum state’s public policy, that law will not be applied. *Kashani v.
Tsann Kuen China Enter. Co.*, 118 Cal. App. 4th 531, 543 (“the forum state
will not apply the law of another state to enforce a contract if to do so
would violate the public policy of the forum state.”)
a. For example, recognizing strict liability of manufacturers and
compensating injured parties for pain and suffering are public policies of
California that will be recognized over non-U.S. law. *Kasel v. Remington
Arms Co.*, 24 Cal. App. 3d 711, 735 & n.28 (2d Dist. 1972).
7. The governmental interest approach requires a separate analysis with
respect to each issue. *Beech Aircraft v. Superior Court*, 132 Cal. Rptr.
541, 550 (Cal. App. 1976).
8. The courts will determine the relative commitment of the respective
states to the law involved, whether the policy underlying the law was more
strongly held in the past than now, and whether the law is attenuated and
anachronistic. *Offshore Rental*, 583 P.2d at 726.
9. Courts performing the comparative impairment analysis also consider
the modern pertinence of the underlying policy of the competing laws, and
whether the policy can be satisfied by some other means (e.g. insurance
satisfies the purpose of providing compensation to tort victims instead of
laws permitting a broader range of tort claims).
E. Changing residency after the wrongful conduct will have no bearing
on the choice of law analysis, as court do not want to encourage forum
shopping. *Reich v. Purcell*, 432 P.2d 727, 730 (Cal. 1967).
F. When more than two jurisdictions are involved, once a party has
invoked the choice of law analysis, the interests of all potentially
affected jurisdiction are considered. States with similar laws may be
grouped together for purposes of the comparative impairment step of the
analysis. Among the states that are grouped as one, it is the state with
the real interest in the outcome of the litigation whose impairment will be
measured against that of a conflicting state. *Costco Wholesale Corp. v.
Liberty Mut. Ins. Co.*, 472 F. Supp. 2d 1183, 1199 (S.D. Cal. 2007).
On Mon, Jan 30, 2017 at 6:39 PM, Paul Rosenzweig <
paul.rosenzweig at redbranchconsulting.com> wrote:
> Apologies Kavouss. . I just used Caps to distinguish my comments not to
> shout.
>
> --
> Paul Rosenzweig
> Sent from myMail app for Android
> Monday, 30 January 2017, 03:43PM -05:00 from Kavouss Arasteh
> kavouss.arasteh at gmail.com:
>
>
> Dear Paul,
> Thank you very much.
> Two things
> 1. You said that
> You were "Dealing with the immigration “crisis” in the US is occupying my
> time"
>
>
> I was also struggling with the same issue.
>
> In regard with your reply, while I appreciate that , I am not convinced
> with the responses given for two reasons.
>
> One you replied in CAP ( upper case) that according to ICANN rules is
> considered that you were shouting.
>
> Second, while I appreciate your professional quality as a respectful and
> esteemed professor at several universities, former Deputy to Assistance
> Secretary and author of those controversial comments relating to IANA
> Transition, your responses were not convincing.
>
> I did expect a more thorough analysis from you as a eminent lawyer
>
> Anyhow, thank you indeed for the time and efforts spent on the matter.
>
> I hope in future you would kindly use lower case and not shouting to me.
>
> Best regards
>
> Kavouss
>
> 2017-01-30 16:38 GMT+01:00 Paul Rosenzweig <paul.rosenzweig@
> redbranchconsulting.com
> <https://e-aj.my.com/compose/?mailto=mailto%3apaul.rosenzweig@redbranchconsulting.com>
> >:
>
> Dear Kavouss
>
>
>
> As promised. My responses are below (I’ve cut and pasted your questions
> back here at the top) in CAPS
>
>
>
> My Questions are
>
> 1. What do you mean by *(**the substantive law to apply?**)*
>
>
>
> I MEAN THE LAW THAT WILL BE USED TO DECIDE THE CASE. FOR EXAMPLE, IT MAY
> BE AGAINST THE LAW, IN SAY, INDIA, FOR ICANN TO REFUSE TO PUBLISH ITS
> FINANCIAL DATA PUBLICLY (I AM MAKING THIS EXAMPLE UP OF COURSE – I DON’T
> KNOW WHAT INDIAN LAW IS). IF THE COURT OR ARBITRATOR HEARING THE CASE
> DECIDED THAT INDIAN LAW WAS THE APPLICABLE SUBSTANTIVE LAW, IT WOULD THEN
> HAVE TO MAKE A DECISION ABOUT WHETHER OR NOT ICANN WAS VIOLATING THE
> SUBSTANTIVE LAW. IN OTHER WORDS, IT WOULD HAVE TO DECIDE WHAT INDIAN LAW
> REQUIRES AND WHETHER OR NOT ICANN HAD COMPLIED. THE INDIAN LAW HERE WOULD
> BE THE SUBSTANTIVE LAW TO APPLY TO THE CASE.
>
>
>
> 1. If the parties made a choice of law , say e.g. Swiss Law, should
> the case be sent to a Swiss Court or as you said the case still would be
> treated by the Court to which it was submitted but the Court merely applies
> Swiss Law.
>
>
>
> THAT VERY MUCH DEPENDS ON WHERE THE SUIT IS BROUGHT AND WHAT ELSE THE
> PARTIES HAVE SAID. FOR EXAMPLE, THE PARTIES COULD SAY “SWISS LAW APPLIES
> BUT THE CASE WILL BE HEARD IN LONDON ARBITRATION” OR “SWISS LAW APPLIES AND
> THE CASE SHOULD BE IN SWISS COURT” FOR THE SECOND OF THESE, IF SOMEONE
> BROUGHT A SUIT IN THE US COURTS ANYWAY, THE US COURTS WOULD GENERALLY DEFER
> TO THE LANGUAGE OF THE CONTRACT AND DISMISS THE CASE WITH DIRECTION TO
> REFILE IT IN SWITZERLAND. I DO NOT KNOW WHAT THE LAW WOULD BE IF THE SUIT
> WERE IN INDIA OR IRAN OR THE UK OR FRANCE THOUGH.
>
>
>
> THE HARDER QUESTION IS WHEN THE PARTIES SAY THAT “SWISS LAW APPLIES” BUT
> THEY DON’T SAY ANYTHING ABOUT WHERE THE COURT CASE SHOULD BE. THEN THE
> COURTS WOULD HAVE TO DECIDE – IN THE US THAT DECISION WOULD BE BASED ON
> QUESTIONS OF CONVENIENCE (WHERE ARE THE WITNESSES, FOR EXAMPLE?) AND OTHER
> SIMILARLY EQUITABLE QUESTIONS. AGAIN, I HAVE NO IDEA HOW AN
> INDIAN/IRANIAN/UK/FRENCH COURT WOULD ANSWER THE QUESTION.
>
>
>
>
>
> In the latter case, to what extent the Court could claim that it is fully
> familiar to all details of Swiss Law? Take the extreme case that there
> would agreements for 20, 30 ... choice of Law for 20, 30 different cases.
> Do you believe that the Court in question would be familiar with the
> details of all 20, 30 Laws ? I find it very difficult that ,e.g. a State
> Court in any country would have such vast knowledge of all laws that
> mentioned above
>
>
>
> IF A COURT KEPT A CASE BUT HAD TO APPLY SWISS LAW, THE COURT WOULD HAVE TO
> BE EDUCATED IN THE LAW. THAT MIGHT BE BY THE PARTIES OR THE COURT MIGHT
> ASK AN EXPERT. IN THE US WE ALSO HAVE A PROCESS (NOT USED THAT OFTEN)
> WHERE THE US COURT COULD CERTIFY THE QUESTION TO A SWISS COURT AND ASK IT
> FOR THE ANSWER. THE DIFFICULTY IN LEARNING THE LAW IS ANOTHER ONE OF THE
> EQUITABLE FACTORS THAT MIGHT MAKE A US COURT TRANSFER THE CASE TO
> SWITZERLAND IF THE PARTIES HAVE NOT SPECIFIED THAT IN CONTRACT TO STAY IN
> THE US.
>
>
>
>
>
> c) If case that there is no previously agreed for a choice of Law, why it
> would not be possible that the parties be asked for the choice of Law
> before the Court in question starts discussing the case.
>
> An extreme situation of that was the case of "Y" that the defendant had
> no information that at a given date a plaintiff would submit a case to
> any Court thus there was possibility to choose a given Law. Then wouldn't
> it be logical that both parties be given the opportunity to choose a given
> Law?
>
>
>
>
>
> USUALLY, PARTIES MAKE THE CHOICE OF LAW BEFORE HAND WHEN THEY ENTER A
> CONTRACT. IF THEY DON’T THEN IT IS UNLIKELY THAT THEY WILL AGREE WHEN THE
> LAW SUIT STARTS – AFTER ALL, THEY ARE NOW FIGHTING IN COURT AND I ASSUME
> THAT ONE OF THE PARTIES WILL LOOK AT IT AND SAY “I WIN UNDER SWISS LAW” AND
> THE OTHER WILL SAY TO ITSELF “SINCE WE MAY LOSE UNDER SWISS LAW, LETS ASK
> FOR INDIAN LAW.” IF THE PARTIES WERE IN AGREEMENT AS TO APPLICABLE LAW, A
> US COURT WOULD PROBABLY HONOR THAT AGREEMENT – BUT IT IS MUCH MORE LIKELY
> THAT THEY WOULD DISAGREE.
>
>
>
> Paul Rosenzweig
>
> paul.rosenzweig at redbranchconsulting.com
> <https://e-aj.my.com/compose/?mailto=mailto%3apaul.rosenzweig@redbranchconsulting.com>
>
> O: +1 (202) 547-0660
>
> M: +1 (202) 329-9650
>
> VOIP: +1 (202) 738-1739
>
> www.redbranchconsulting.com
>
> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=
> 0x9A830097CA066684
>
>
>
> *From:* Kavouss Arasteh [mailto:kavouss.arasteh at gmail.com
> <https://e-aj.my.com/compose/?mailto=mailto%3akavouss.arasteh@gmail.com>]
> *Sent:* Saturday, January 28, 2017 8:27 AM
> *To:* Mathieu Weill <mathieu.weill at afnic.fr
> <https://e-aj.my.com/compose/?mailto=mailto%3amathieu.weill@afnic.fr>>
> *Cc:* Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com
> <https://e-aj.my.com/compose/?mailto=mailto%3apaul.rosenzweig@redbranchconsulting.com>>;
> Mueller, Milton L <milton at gatech.edu
> <https://e-aj.my.com/compose/?mailto=mailto%3amilton@gatech.edu>>;
> ws2-jurisdiction <ws2-jurisdiction at icann.org
> <https://e-aj.my.com/compose/?mailto=mailto%3aws2%2djurisdiction@icann.org>
> >
> *Subject:* Re: [Ws2-jurisdiction] Case summary - 2 drafts for your review
>
>
>
> Dear All.
>
> I agree with most of you in analysis that were done.
>
> However, I tend to agree with Mathieu in the need to assess
>
> *- **Whether there was actually an impact*
>
> *- **Whether there would have been an impact if the case had
> been decided, or would be decided in the future, against ICANN (potential
> impact)*
>
> and any subsequent actions that may be required to follow.
>
> In reply to the first reaction by Paul, when he concluded
>
> Quote
>
> *"1.One section of the form refers to “Choice of Law/Governing Law” – I
> think that in filling this out we risk conflating two distinct legal issues
> – what law governs the dispute (**the substantive law to apply**) and
> what law controls choosing the governing law (i.e. procedurally, what
> choice of law rules govern choosing the applicable law). For example, a
> law suit in California state will often apply California state law in
> deciding what law to choose to govern the dispute – but that California law
> may often result in identifying the governing law as the law of some other
> jurisdiction. A perfect example is a contract dispute that says “this
> contract is governed by the laws of France.” California law on choosing
> law says “the choice of the parties in a contract should be given effect”
> and so a law suit between two parties in California would result in the
> California court using French law to resolve the dispute. In your two
> cases this made a difference in the Verisign case where California law
> applied to choose law, but the choice was Federal antitrust. I think we
> should distinguish between them"*
>
> My Questions are
>
> a) What do you mean by *(**the substantive law to apply?**)*
>
> b) If the parties made a choice of law , say e.g. Swiss Law, should the
> case be sent to a Swiss Court or as you said the case still would be
> treated by the Court to which it was submitted but the Court merely applies
> Swiss Law.
>
> In the latter case, to what extent the Court could claim that it is fully
> familiar to all details of Swiss Law? Take the extreme case that there
> would agreements for 20, 30 ... choice of Law for 20, 30 different cases.
> Do you believe that the Court in question would be familiar with the
> details of all 20, 30 Laws ? I find it very difficult that ,e.g. a State
> Court in any country would have such vast knowledge of all laws that
> mentioned above
>
> c) If case that there is no previously agreed for a choice of Law, why it
> would not be possible that the parties be asked for the choice of Law
> before the Court in question starts discussing the case.
>
> An extreme situation of that was the case of "Y" that the defendant had
> no information that at a given date a plaintiff would submit a case to
> any Court thus there was possibility to choose a given Law. Then wouldn't
> it be logical that both parties be given the opportunity to choose a given
> Law?
>
>
>
> 2017-01-28 1:34 GMT+01:00 Mathieu Weill <mathieu.weill at afnic.fr
> <https://e-aj.my.com/compose/?mailto=mailto%3amathieu.weill@afnic.fr>>:
>
> Thanks for raising this point Paul,
>
>
>
> This is indeed a question that I faced trying this out. We need an
> approach that is consistent across all cases, and as you point out, even
> when cases may not end up being decided against ICANN, there can be an
> effect.
>
>
>
> So my suggestion is to assess :
>
> - Whether there was actually an impact
>
> - Whether there would have been an impact if the case had been
> decided, or would be decided in the future, against ICANN (potential impact)
>
>
>
> It’s going to be another phase of our work to determine which lessons we
> draw from the cases, and whether we believe it’s appropriate to take these
> potential impacts into account within the work of our group. If, by then,
> we want to exclude the “potential impact” sections, we’ll do so, but at the
> data collection level, when we fill the form, I think we should include
> this piece of information.
>
>
>
> Best
>
> Mathieu
>
>
>
> *De :* Paul Rosenzweig [mailto:paul.rosenzweig at redbranchconsulting.com
> <https://e-aj.my.com/compose/?mailto=mailto%3apaul.rosenzweig@redbranchconsulting.com>]
>
> *Envoyé :* vendredi 27 janvier 2017 17:01
> *À :* 'Mueller, Milton L'; 'Mathieu Weill'; ws2-jurisdiction at icann.org
> <https://e-aj.my.com/compose/?mailto=mailto%3aws2%2djurisdiction@icann.org>
> *Objet :* RE: [Ws2-jurisdiction] Case summary - 2 drafts for your review
>
>
>
> I agree with Milton. By contrast, for example, the DotAfrica case is
> relevant as it reflects an instance where the legal system did have an
> effect on ICANN’s actions (that’s a statement of fact – not an assertion
> that the effect was good or bad). The question in the end will be what
> those effects are; whether they are adverse; and if changing to another
> jurisdiction would make the situation worse or better
>
>
>
> Paul
>
>
>
> Paul Rosenzweig
>
> paul.rosenzweig at redbranchconsulting.com
> <https://e-aj.my.com/compose/?mailto=mailto%3apaul.rosenzweig@redbranchconsulting.com>
>
> O: +1 (202) 547-0660
>
> M: +1 (202) 329-9650
>
> VOIP: +1 (202) 738-1739
>
> www.redbranchconsulting.com
>
> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=
> 0x9A830097CA066684
>
>
>
> *From:* Mueller, Milton L [mailto:milton at gatech.edu
> <https://e-aj.my.com/compose/?mailto=mailto%3amilton@gatech.edu>]
> *Sent:* Friday, January 27, 2017 10:36 AM
> *To:* Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com
> <https://e-aj.my.com/compose/?mailto=mailto%3apaul.rosenzweig@redbranchconsulting.com>>;
> 'Mathieu Weill' <mathieu.weill at afnic.fr
> <https://e-aj.my.com/compose/?mailto=mailto%3amathieu.weill@afnic.fr>>;
> ws2-jurisdiction at icann.org
> <https://e-aj.my.com/compose/?mailto=mailto%3aws2%2djurisdiction@icann.org>
> *Subject:* RE: [Ws2-jurisdiction] Case summary - 2 drafts for your review
>
>
>
> I have to agree mostly with Paul on this:
>
>
>
> In the “Effect on our Work” section I wonder at how you handled it. For
> me, the answer in the Arizona case would be “none” since the suit was
> dismissed early. To be sure you write of its potential effect – which had
> it succceded would have been significant. But that gives too much credit
> to the filing of a suit doesn’t it? Shouldn’t our inquiry be whether or
> not the exisiting legal system adequately protects our work from
> non-meritorious interference. And so, shouldn’t the Arizona case be a good
> sign that, at least in this case, the court reached a result that had no
> impact?
>
>
>
> That case was a desperation delaying act that had no real legal basis,
> which the court quickly recognized. Apparently the plaintiffs realized it
> was groundless too - which is why they abandoned the case after failing to
> get the injunction. In others words, this was an attempt to use legal
> procedure to delay an outcome until the political situation changed, not a
> challenge based on the specific characteristics of US or Calif law. Unless
> one can argue that the U.S. jurisdiction is uniquely prone to these kinds
> of tricks working (and here I leave it to people with more comparative law
> experience than me), I don’t think the case is relevant.
>
>
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>
>
>
>
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