[Ws2-jurisdiction] Jurisdiction on an existing Obstacle

[parminder]

On Friday 10 February 2017 04:07 AM, Kavouss Arasteh wrote:
> *Dear Greg*
> *As raised in todays's meeting *
> *To become ICANN Accredited Registrar, all registrars need to sign a
> contract with ICANN and ICANN should  applies some criteria before
> accepting the registrar. ICANN is a US Entity and can't get involved
> into any contract with the  **people of *
> *
> some countries   This means having an Accredited Registrar for .com
> and .net and many more gTLDS in those countries is almost impossible.
> The is business blocker.
> This is an important issue to be carefully examined and resolve.
> The question is whether after the transition, still ICANN refrain to
> sign the contract in question ,if no where that is reflected and if
> yes, what solution is available to remove such discrimination .
> *

Obviously nothing changes in this regard with the IANA transition. ICANN
remains as much a US organisation, and as much subject to US laws,
including those about sanctions, as it always was. Therefore the
problematic situation for registrars in the sanctioned countries remain
as it was. Not only registrars cannot function in the US sanctioned
countries, but it will be pretty impossible for registries for TLDs to
function. (A chilling effect
<https://en.wikipedia.org/wiki/Chilling_effect>already operates whereby
there is no sense in any business from these countries applying for a
gTLD. Meanwhile, there is no way to "prove" the existence of such a
chilling effect by prior documented instances as had wrongly been made
the condition of what is admitted as facts in this sub group  -- that is
a part of the very meaning of the chilling effect, that it exists but
does not show in action, it shows in inaction.)

Further, there have been instances where US based registrars have
cancelled domain name accounts of entities in such countries. Please see
this in case of Crimea based entities
http://atlarge-lists.icann.org/pipermail/na-discuss_atlarge-lists.icann.org/2015-March/008612.html
.

Even if while writing contracts ICANN were to become so generous as to
make the jurisdiction of non US registrars and registries as the chosen
law for adjudication (and there is no likelihood that it will ever get
so generous), this applies only to civil matters and not public law, as
the laws backing US sanctions are.  However the contracts are written,
registries, registrars, and ordinary domain owners in countries under
sanctions by the US (currently or in the future) remain in an extreme
difficult, if not fully non-operational, position.

What is this sub group's response to this fact? That is if indeed we
work on the behalf of the whole Internet community.

As a sub-group we need to begin addressing these specific problems and
questions, rather than going in rounds and rounds without making any
movement at all. We need to address what is wrong or could possibly be
wrong, not write tomes on what is right and going well. There is always
something right and going well, the issues to address are what is not,
and what to do about it.

parminder


> *
> Regards
> Kavouss
>
> *
>
>
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