[Ws2-jurisdiction] Blog post on ICANN's jurisdiction

Sun Feb 12 05:53:59 UTC 2017

On Saturday 11 February 2017 10:54 PM, Paul Rosenzweig wrote:
>
> As we have repeatedly noted, the exact same thing is true of ICANN’s
> being subject to the laws of India, France and any other place it does
> business. 
>

Paul, and you have missed the repeated response that of course this is
not true (and you know it) -- the implication of jurisdiction of
incorporation of a body, and its impact on its working, is of a
completely different order than that of the jurisdictions where it may
merely conduct some business. Do you refute this proposition?

Would you in your professional life advice, say, a business incorporated
in Germany but with worldwide business footprint that the application of
German jurisdiction and laws on it -- and the real life implications of
such application -- is more or less the same as application of
jurisdiction and laws of all counties where it may conduct any business
at all? I look forward to a clear and unambiguous response to this. Thanks.

If indeed we are to keep falsifying such basic facts, which everyone
knows well, and base our positions on that, there is no way we can go
anywhere with this sub group. We may as well close it up and let the
rapporteur write whatever report he may want to forward. No use wasting
time here in trying to "prove" and reprove and reprove basic universally
known legal and political facts.

> Your persistence in arguing a strawman Paraminder puts me in mind of
> Amartya Sen.
>

A perceptive book he wrote, but also speaks of Indian humility and
self-deprecation... Wonder why no one ever wrote "The Hegemonic American"...

parminder

>  
>
> Paul Rosenzweig
>
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> <mailto:paul.rosenzweig at redbranchconsulting.com>
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>  
>
> *From:*ws2-jurisdiction-bounces at icann.org
> [mailto:ws2-jurisdiction-bounces at icann.org] *On Behalf Of *parminder
> *Sent:* Saturday, February 11, 2017 8:46 AM
> *To:* ws2-jurisdiction at icann.org
> *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
>
>  
>
> Nigel,
>
> Thanks for your views. One gets faced by two kinds of arguments in
> favour of keeping the jurisdictional status quo -- which are mutually
> exclusive.
>
> (1) ICANN is somehow not subject to the whole range of US law and
> executive powers, as any other US organisations is - or at least it is
> somehow felt that US law and executive power will never apply itself
> over ICANN functioning.
>
> (2) As you argue, ICANN is indeed subject to all US laws and powers,
> which might indeed be applied over it as necessary, but this is a good
> and a desirable thing.
>
> As we have no move forward at all, we must do it in stages and remove
> some arguments off the table which we can mutually agree to be
> untenable. So can we now agree that the view (1) above is simply
> untrue and naively held by those who forward it.
>
> We can now move to (2). First of all, this means that indeed US law
> and executive can impinge upon ICANN's policy implementation whenever
> it feels it valid to do so in pursuance of legitimate US public
> interest. Meaning, If ICANN makes a policy and does its implementation
> which is not in-accordance with US law or legitimate US executive
> will, they can "interfere" can cause those actions to be rolled back
> on the pain of state's coercive action. This can be for instance
> regarding how and what medicines and health related activities are
> considered ok by the concerned US regulator. (Similar examples can be
> thought of in practically every sector). Are you with me till here,
> because I think I am only making logical deduction over what you seem
> to agree with?
>
> If so, this indeed establishes as a fact that US jurisdiction can, as
> required, impinge upon (which seen from another vantage is same as,
> interfere with) ICANN policies and policy implementation.
>
> Which makes the entire exercise of our questionnaire seeking whether
> it can so happen rather needless. It of course can.
>
> Lets then not argue or fight over that terrain, where we have this
> agreement, about how law and executive power operates vis a vis
> organisations subject to their jurisdiction.
>
> That brings us to another terrain - that, as you argue, and others
> have here, that it is right, appropriate and needed that US law and
> legitimate executive power impinges upon ICANN functioning as and when
> required, becuase it is important to subject everything to the rule of
> law (and in your and many other people's views, ICANN can practically
> ONLY be subject to rule of US's law).
>
> I am happy to discuss this part as long as we do not keep drifting
> back to the earlier one whereby there really seems to be an agreement
> among most of us that US law and legitimate executive power can indeed
> impinge upon or "interfere with" ICANN's policy or policy
> implementation work (even if many consider such interference as being
> good for ICANN and public interest) .
>
> Your only problem with immunity seem to come up with regard to
> criminally fraudulent activities. You give the examples of IOC and
> FIFA but I have not found they having any special criminal immunities.
> I may not have looked up well, but did they? Were they not finally
> raided by both Swiss and US authorities. On the other hand there are
> many international organisations with legal immunities that have been
> gooing great global public interest work without corruption. Interpol
> hasnt started to take money to make international warrants disappear,
> not, more humbly, the International Fertilizers Development Centre,
> immunised under the relevant US Act, and which enters into contracts
> worth millions every years for globally distributed projects, has been
> known to do so....
>
> (FIFA and IOC become corrupt because of commercial thinking completely
> overpowering public service ethics -- and if ICANN becomes so it will
> also be ore likely becuase of this reason. But et us not get distracted. )
>
> And if indeed we are so concerned about ICANN's abuse of power and
> possible frauds and corruption, we should have let a stronger and more
> agile community accountability mechanism get established, like the
> membership based one, and with lower thresholds of triggering
> community action... That is where the mistake was made, and can still
> be corrected down the line. Do not throw the world at the mercy of US
> law and executive action for this purpose, especially when it related
> to to an infrastructure which today underpins almost every social
> system. This is not just some sports. (No hurt intended to sports
> fans, I being one.)
>
> parminder
>
>
>
> On Saturday 11 February 2017 02:16 PM, Nigel Roberts wrote:
>
>
>
>         and innumerable others. In the circumstances, the real waiver
>         across all
>         sectors and laws would be seek immunity under the US
>         International
>         Organisations Immunity Act. Would you not prefer this route?
>         If not, why
>         so?
>
>
>     Because I do not want ICANN to have immunity.
>
>     I have been involved in this community since before it was called
>     'ICANN', including the gTLD-MoU and the IFWP.
>
>     I have seen ICANN behave as an autocrat robber baron and deprive
>     people of their property.
>
>     Fortunately, we have made great strides since then.
>
>     Accountability work, between 2003 (in the case of ccTLDs) up to
>     last years' transition, as well as the fact that, both staff and
>     Board now have personal trust, that was totally absent 15 years ago.
>
>     But both organisations and personnnel can change.
>
>     Institutional immunity leads to corruption. I do not want ICANN to
>     become a FIFA, or IOC.
>
>     And the recent .AFRICA case shows, the checks and balances of the
>     US judicial system appear to work reasonably well (I personally
>     remain uneasy about the covenant of immunity but I expect you have
>     no problem with that).
>
>     I trust this explains why some people - and I am one - may have a
>     diametrically opposed view to yours when it comes to ICANN immunity.
>
>
>
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