[Ws2-jurisdiction] Questions based on Parminder's statements in the last meeting about GAC participation

Wed Feb 22 17:41:14 UTC 2017

I agree with Paul.

The only thing to add concerns the fourth point.

I think Paul is correct on the fourth point, including where he say that so long as ICANN has any interests/assets/effects in a country, it cannot effectively avoid that jurisdiction.

In addition, many countries have treaties/arrangements to enforce final judgments from other countries – these may be bilateral, regional, or even globally multilateral treaties. So it may turn out that ICANN cannot avoid a judgment even if it fled the realm, taking all of its interests, assets, and effects with it.

David

David McAuley

International Policy Manager

Verisign Inc.

703-948-4154

From: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of Paul Rosenzweig
Sent: Wednesday, February 22, 2017 11:57 AM
To: 'Greg Shatan' <gregshatanipc at gmail.com>; 'ws2-jurisdiction' <ws2-jurisdiction at icann.org>
Subject: [EXTERNAL] Re: [Ws2-jurisdiction] Questions based on Parminder's statements in the last meeting about GAC participation

Greg/All

My responses are as follows (questions repeated for clarity):

First, for any GAC members, is it your position that you agree with Parminder's statements regarding GAC members?

Not applicable.

Second, for all participants, do you agree that only a law that has been democratically arrived at by all the citizens of the world can be applied to ICANN?  Are you aware of any such body of law?

I do not agree.  To begin with there is no realistic possibility of any law being created that has been democratically arrived at  by all citizens of the world.  To say that only this law can apply to ICANN is to say that no law at all can apply to ICANN.  I am not aware of any body of law that would satisfy this criteria, as almost all international law is adopted by nations, not by the citizens of the world, and it is not the case that all of the nations participating in the creation of an international body of law are themselves democratically representative.

Third, for all participants, do you agree that US law cannot be applied to ICANN because it has only been democratically arrived at by US citizens?

I do not agree.  US law can and will apply to any institution that is subject to it.  That include people who are US citizens; companies that do business in the US and anyone who is present in the US.  The same of course is true of every nation in the world – the all assert jurisdiction over citizens, residents, and companies/individuals with substantial interests that effect their country.  If instead of “cannot” (a descriptive) you mean “should not” (a normative) I disagree as well.  First, of course, there is no real use in establishing a norm that cannot practically be realized.  Second, and more importantly, subjecting ICANN to US law (and also to the laws of other States) is precisely how we achieve accountability.  In the absence of applicable law, ICANN becomes unaccountable.

Fourth, for all participants, do you agree that if ICANN is sued in a jurisdiction where it has an office, other than its jurisdiction of incorporation and loses, that ICANN can avoid complying with the judgment by closing its office in that jurisdiction?

I do not agree.  This is simply wrong as a matter of law in the US, in Germany, and in Britain, which are the three countries whose law I am familiar with. I imagine it is also wrong for many (most?) other nations.  So long as ICANN has any interests/assets/effects in a country, it cannot effectively avoid that jurisdication.  I would also note that the underlying suggestion (that ICANN seek to avoid valid judgements rendered by courts in a jurisdiction) is fundamentally lawless and that ICANN should not be in a position of suggesting that it can avoid the rule of law by artificial means of closing its operations.

Fifth, assuming for the sake of discussion that "ICANN primarily is a body with a global government function and only secondarily, an US nonprofit," what is the relevance, if any, to our primary tasks of enhancing ICANN's accountability and determining whether ICANN's accountability is negatively affected by its current jurisdictional set-up?

As far as I can tell, this is irrelevant.  [It is also wrong, but you insisted on assuming the premise.]   More to the point, the status of ICANN as a US non profit is an essential part of the accountability mechanisms that we just spend many thousands of hours creating.

Paul

Paul Rosenzweig

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From: ws2-jurisdiction-bounces at icann.org<mailto:ws2-jurisdiction-bounces at icann.org> [mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of Greg Shatan
Sent: Monday, February 20, 2017 10:12 PM
To: ws2-jurisdiction <ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>>
Subject: [Ws2-jurisdiction] Questions based on Parminder's statements in the last meeting about GAC participation

All,

On our last call there were some remarks by Parminder about the position of GAC members regarding ICANN.  It was not clear to me that GAC members actually held the beliefs ascribed to them.  We were not able to determine this on the call, one way or the other.  I've now excerpted the relevant sections of the transcript and confirmed them against the audio.  These sections are attached.  In addition to the question about the GAC, these statements raise a few other questions:

First, for any GAC members, is it your position that you agree with Parminder's statements regarding GAC members?

Second, for all participants, do you agree that only a law that has been democratically arrived at by all the citizens of the world can be applied to ICANN?  Are you aware of any such body of law?

Third, for all participants, do you agree that US law cannot be applied to ICANN because it has only been democratically arrived at by US citizens?

Fourth, for all participants, do you agree that if ICANN is sued in a jurisdiction where it has an office, other than its jurisdiction of incorporation and loses, that ICANN can avoid complying with the judgment by closing its office in that jurisdiction?

Fifth, assuming for the sake of discussion that "ICANN primarily is a body with a global government function and only secondarily, an US nonprofit," what is the relevance, if any, to our primary tasks of enhancing ICANN's accountability and determining whether ICANN's accountability is negatively affected by its current jurisdictional set-up?

Thank you.

Greg

Greg Shatan

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