[Ws2-jurisdiction] Blog post on ICANN's jurisdiction
Paul Rosenzweig
paul.rosenzweig at redbranchconsulting.com
Fri Feb 17 13:50:00 UTC 2017
Paraminder
Ask UBS
--
Paul Rosenzweig
Sent from myMail app for Android Friday, 17 February 2017, 08:18AM -05:00 from parminder parminder at itforchange.net :
>The travel bans make the simple but clear point that a nation
will
use its legal machinery for all purposes that it considers being
in
national interest, no matter if that rides roughshod over the
interests of people from other countries. The many lessons from
this
for the issue of ICANN being under US jurisdiction are rather
obvious....
>" But it is simply a myth to
say that moving ICANN’s legal place of incorporation to someplace
outside the US will change anything about the applicability of US
law." (Paul)
>This repeated restatement of a manifest untruth is astonishing
--- that
US law's application over ICANN does not change whether or not
ICANN
is incorporated in the US. You must have some extraordinary vision
of the grandeur and reach of the US law! I am now getting afraid
that the US government may now ban travel from the 7 banned
countries to India too. People beware!. Are we living in the
Alice's wonderland!! (Why btw then you wont agree to let ICANN get
incorporated say in
India. I can bet Indian government will readily pay all the costs
involved. It will just end this otherwise endless debate.)
>parminder
>
>
>
>On Tuesday 14 February 2017 08:16 PM,
Paul Rosenzweig wrote:
>>Sorry,
but neither the travel ban nor the OFAC requirements are
dependent on ICANN’s place of incorporation. Even if ICANN
were incorporated in, say, Switzerland, the travel ban would
still effect a hypothetical meeting in the US. The way to
ameliorate the travel ban is to change the need for travel.
I do suspect (and support) the idea that IF the travel ban
takes effect ICANN consider that factor in deciding where to
hold meetings.
>>
>>As
for OFAC requirements, they can be applied to any
corporation doing business in the US (which is how, for
example, the US tries to get foreign banks not to do
business with listed entities). Again, unless ICANN stops
doing all business in the US (no office; not ccTLD; no
registrar or registry contracts and maybe even no American
consumer customers) OFAC can be applied. It even applies
(in some cases, to wholly foreign subsidiaries).
>>
>>Like
Greg, let me emphasize that I do not support the Travel Ban
and I support ICANN’s effort (so far successful) to avoid
the impact of OFAC on its operations. But it is simply a
myth to say that moving ICANN’s legal place of incorporation
to someplace outside the US will change anything about the
applicability of US law.
>>
>>Paul
>>
>>Paul
Rosenzweig
>>paul.rosenzweig at 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: Seun Ojedeji [ mailto:seun.ojedeji at gmail.com ]
>>Sent: Tuesday, February 14, 2017 4:23 AM
>>To: Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com>
>>Cc: ws2-jurisdiction <ws2-jurisdiction at icann.org> ; parminder <parminder at itforchange.net>
>>Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's
jurisdiction
>>
>>Hi,
>>
>>I am not a lawyer but it doesn't sound
accurate to say that the effect of the country of
incorporation (US) on ICANN is same with that of other
countries (including the ones hosting her regional hubs)
because that is what I think Paul may be implying here.
>>
>>As a simple example is a Trump travel
Ban and the OFAC stuff compared to if a travel Ban is
placed on Turkey where ICANN has a hub. The former would
have global effects on ICANN than the latter. I for one
would be glad if there can be immunity/exemption for
ICANN(used in literary terms) in such scenarios
>>
>>Regards
>>Sent from my LG G4
>>Kindly excuse brevity and typos
>>
>>On Feb 13, 2017 7:59 PM, "Paul
Rosenzweig" < paul.rosenzweig at redbranchconsulting.com >
wrote:
>>>Yes,
I refute the proposition because it is an
alternate fact. Or put another way – it is wrong.
>>>
>>>
The true fact is simple – by virture of doing
business in France, ICANN is subject to French
law. France’s privacy authorities might, for
example, attempt to get ICANN to follow their
right to be forgotten. They would fail, I think,
but that proposition is no different in kind than
the idea of US antitrust jurisdiction over ICANN
which will not change one iota if ICANN changes
its jurisdiction of incorporation. As I have said
before, the only way in which place of
jurisdiction matters significantly (or to use your
words is of a “different order” is regarding law
relating to corporate incorporation and
governance. As to that – e.g. the implementation
of ICANN’s actual corporate governance – it would
change significantly if ICANN moved. But, as
others have also noted, the corporate law of
California is vital to ICANN’s current structure.
>>>
>>>As
for your question about my professional life it is
amusing – because that is indeed what I do for a
living and I have, in fact, given exactly that
advice to German businesses with operations in the
United States. I tell them that if they want to
avoid American law (mostly law relating to
cybersecurity) the only way to do so is to avoid
having a business presence in the US. If they
want to forgo the market completely they can do so
to avoid American law. But otherwise they
cannot. And, I tell them the exact same thing
about French and Indian law as well. In short, I
do this for a living and yes, I say exactly the
same thing to paying clients.
>>>
>>>It
is not me who is “falsifying facts” Paraminder.
You are making assertions that have no actual
basis in any law that I know of. Repeatedly
asserting them as “facts” does not make them so
>>>
>>>Paul
>>>
>>>Paul
Rosenzweig
>>>paul.rosenzweig at 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: parminder [mailto: parminder at itforchange.net ]
>>>Sent: Sunday, February 12, 2017 12:54
AM
>>>To: Paul Rosenzweig < paul.rosenzweig at redbranchconsulting.com >; ws2-jurisdiction at icann.org
>>>Subject: Re: [Ws2-jurisdiction] Blog
post on ICANN's jurisdiction
>>>
>>>
>>>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
>>>>paul.rosenzweig at 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: 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.
>>>>>
>>>>>
>>>>>
>>>>>_______________________________________________
>>>>>Ws2-jurisdiction mailing list
>>>>>Ws2-jurisdiction at icann.org
>>>>>https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>>>>
>>>
>>>
>>>_______________________________________________
>>>Ws2-jurisdiction mailing list
>>>Ws2-jurisdiction at icann.org
>>>https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
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