[Ws2-jurisdiction] Blog post on ICANN's jurisdiction
Nigel Roberts
nigel at channelisles.net
Thu Feb 23 17:31:26 UTC 2017
I'm extremely reluctant to simply say "I agree".
But "I agree . . ."
On 23/02/17 17:26, Burr, Becky wrote:
> I am extremely reluctant to wade in here, and do so explicitly in my
> personal capacity as an active participant in the CCWG-Accountability
> work, including as the rapporteur for the Mission, Commitment, and Core
> Values provisions of the Bylaws. These views are mine alone, and may or
> may not be shared by other members of the ICANN Board.
>
> I respect Parminder’s conviction that ICANN should have immunity as an
> international organization. But the record of the CCWG-Accountability
> work reflects the fact that the concept of constituting ICANN as an
> international organization with privileges and immunities model was
> discussed but rejected in favor of a model that created specific,
> externally enforceable community powers of the sort created by the
> California non-profit corporation statute. Absent the statutory grant
> of authority found in California law (and the laws of other
> jurisdictions no doubt), the community powers are likely not enforceable.
>
> I am also confused about how one would reconcile the privileges and
> immunity approach with deliberately chosen language in the Bylaws.
> Under the US International Organizations Immunities Act, ICANN would
> first have to be an “international organization” as defined in the Act
> thus: For the purposes of this subchapter, the term “international
> organization” means a public international organization in which the
> United States participates pursuant to any treaty or under the authority
> of any Act of Congress authorizing such participation or making an
> appropriation for such participation, and which shall have been
> designated by the President through appropriate Executive order as being
> entitled to enjoy the privileges, exemptions, and immunities provided in
> this subchapter.” 22 U.S. Code 228. The Swiss Host State Act, 2007,
> has similar requirements. ICANN is not a treaty-based organization, nor
> is it conducting work normally carried out by an intergovernmental
> organization. Turning it into a treaty-based organization would seem to
> me to violate the Bylaws-mandated Core Value that requires ICANN to
> */remain rooted in the private sector/*. This language was contested on
> numerous occasions by members of the GAC, and the community repeatedly
> insisted on retaining this orientation. I think that there can be
> little argument that the community affirmatively committed to
> maintaining this status through the Accountability work.
>
> *From:*ws2-jurisdiction-bounces at icann.org
> [mailto:ws2-jurisdiction-bounces at icann.org] *On Behalf Of *Seun Ojedeji
> *Sent:* Tuesday, February 14, 2017 1:43 PM
> *To:* Greg Shatan <gregshatanipc at gmail.com>
> *Cc:* ws2-jurisdiction <ws2-jurisdiction at icann.org>
> *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
>
> Sent from my LG G4
> Kindly excuse brevity and typos
>
> On Feb 14, 2017 12:29 PM, "Greg Shatan" <gregshatanipc at gmail.com
> <mailto:gregshatanipc at gmail.com>> wrote:
>
> Seun,
>
> You say that a "Trump travel Ban . . . 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."
>
> Can you clarify how a travel ban into the US from a list of
> countries would "have global effects on ICANN" and a travel ban into
> Turkey from a list of countries not have a similar type of effect?
> Is this just because more people will want to travel to ICANN's
> operations in the US than those in Turkey?
>
> SO: It's not really because more people "want" to, it's because for
> ICANN it may be prudent at times to have the meeting in the US. When I
> say meeting, I am not just referring to the 3 global meetings alone.
>
> Why is it a global effect on ICANN if it only concerns a small
> number of countries?
>
> SO: Sometime ago I was reading an article mentioning whether I*
> organisations should cancel subsequent meetings in the US (even though I
> personally do not think it's worth it to cancel already planned Puerto
> Rico meeting) but imagine the global effects if such happen. Beyond that
> such action by US govt also cause unintended(or perhaps unnecessary)
> consequences/reactions. Like it won't be out of scope for an African
> govt who is already pissed off with .Africa[1] and second level 2
> character to also indicate the ban as an exhibit to drive a point.
>
> Just checkout how many ICANN related articles that connects to the ban
> has been published lately so you think similar level of response would
> have happened globally if the travel ban happened in Turkey? I doubt. So
> it's not always about the few ban countries, it's about the global reaction.
>
> For clarity if ICANN were incorporated in Turkey and same banned happen,
> the global effect would have still be similar to that of the US at
> present. So the point is not that it may not have happened if ICANN was
> incorporated in Turkey (or Switzerland as Paul puts it) but the point is
> that it is unfair to say the effects to ICANN ORG/community in both
> scenarios is the same
>
> Regards
>
> 1. Ofcourse I recognise there is not light at the end of the tunnel.
>
> [Please note that I personally do not support the travel ban, nor do
> I minimize the effects it has had and continues to have on citizens
> of those countries.]
>
> Thanks!
>
> Greg
>
>
> *Greg Shatan
> *C: 917-816-6428
> S: gsshatan
> Phone-to-Skype: 646-845-9428
> gregshatanipc at gmail.com <mailto:gregshatanipc at gmail.com>
>
> On Tue, Feb 14, 2017 at 6:17 AM, Seun Ojedeji
> <seun.ojedeji at gmail.com <mailto:seun.ojedeji at gmail.com>> wrote:
>
> Thanks Nigel, I am not asking about an overall immunity for
> ICANN but I am talking about specific scenario like the ones I
> have indicated. Maybe the right word isn't immunity.
>
> Cheers!
>
> Sent from my LG G4
> Kindly excuse brevity and typos
>
> On Feb 14, 2017 11:45 AM, "Nigel Roberts"
> <nigel at channelisles.net <mailto:nigel at channelisles.net>> wrote:
>
> I think you miss the point about immunity.
>
> It's means "ICANN can do what it likes and can't be sued".
>
>
>
> On 14/02/17 09:23, Seun Ojedeji wrote:
>
> Hi,
>
> I am not a lawyer but it doesn't sound accurate to say
> that the effect
> of the country of (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
> <mailto:paul.rosenzweig at redbranchconsulting.com>
> <mailto:paul.rosenzweig at redbranchconsulting.com
> <mailto: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
> <mailto:paul.rosenzweig at redbranchconsulting.com>
> <mailto:paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>>____
>
> O: +1 (202) 547-0660
> <tel:%2B1%20%28202%29%20547-0660>
> <tel:+1%20202-547-0660>____
>
> M: +1 (202) 329-9650
> <tel:%2B1%20%28202%29%20329-9650>
> <tel:+1%20202-329-9650>____
>
> VOIP: +1 (202) 738-1739
> <tel:%2B1%20%28202%29%20738-1739>
> <tel:+1%20202-738-1739>____
>
> www.redbranchconsulting.com
> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=SW0awN355LgKou0VH8FoTnUMVW3Ew72doP7GYG8HOWw&e=>
> <http://www.redbranchconsulting.com/
> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com_&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=1k6KNFdJzQIC6CkW4-cXYamlUd3hWDS-W8MchdaYxlg&e=>>____
>
> My PGP Key:
> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=gBJP9BR7SmJmiYPTtMNTO5cs0-iDPOyGn0HBd1gGbLk&e=>
>
> <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=gBJP9BR7SmJmiYPTtMNTO5cs0-iDPOyGn0HBd1gGbLk&e=>>____
>
> __ __
>
> *From:*parminder [mailto:parminder at itforchange.net
> <mailto:parminder at itforchange.net>
> <mailto:parminder at itforchange.net
> <mailto:parminder at itforchange.net>>]
> *Sent:* Sunday, February 12, 2017 12:54 AM
> *To:* Paul Rosenzweig
> <paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>
> <mailto:paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>>>;
> ws2-jurisdiction at icann.org
> <mailto:ws2-jurisdiction at icann.org>
> <mailto:ws2-jurisdiction at icann.org
> <mailto: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
> <mailto:paul.rosenzweig at redbranchconsulting.com>
> <mailto:paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>>____
>
> O: +1 (202) 547-0660
> <tel:%2B1%20%28202%29%20547-0660>
> <tel:+1%20202-547-0660>____
>
> M: +1 (202) 329-9650
> <tel:%2B1%20%28202%29%20329-9650>
> <tel:+1%20202-329-9650>____
>
> VOIP: +1 (202) 738-1739
> <tel:%2B1%20%28202%29%20738-1739>
> <tel:+1%20202-738-1739>____
>
> www.redbranchconsulting.com
> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=SW0awN355LgKou0VH8FoTnUMVW3Ew72doP7GYG8HOWw&e=>
> <http://www.redbranchconsulting.com/
> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com_&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=1k6KNFdJzQIC6CkW4-cXYamlUd3hWDS-W8MchdaYxlg&e=>>____
>
> My PGP Key:
> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=gBJP9BR7SmJmiYPTtMNTO5cs0-iDPOyGn0HBd1gGbLk&e=>
>
> <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=gBJP9BR7SmJmiYPTtMNTO5cs0-iDPOyGn0HBd1gGbLk&e=>>____
>
> ____
>
> *From:*ws2-jurisdiction-bounces at icann.org
> <mailto:ws2-jurisdiction-bounces at icann.org>
> <mailto:ws2-jurisdiction-bounces at icann.org
> <mailto:ws2-jurisdiction-bounces at icann.org>>
> [mailto:ws2-jurisdiction-bounces at icann.org
> <mailto:ws2-jurisdiction-bounces at icann.org>
> <mailto: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
> <mailto:ws2-jurisdiction at icann.org>
> <mailto:ws2-jurisdiction at icann.org
> <mailto: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) . ____
> > of the country of (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
> <mailto:paul.rosenzweig at redbranchconsulting.com>
> <mailto:paul.rosenzweig at redbranchconsulting.com
> <mailto: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
> <mailto:paul.rosenzweig at redbranchconsulting.com>
> <mailto:paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>>____
>
> O: +1 (202) 547-0660
> <tel:%2B1%20%28202%29%20547-0660>
> <tel:+1%20202-547-0660>____
>
> M: +1 (202) 329-9650
> <tel:%2B1%20%28202%29%20329-9650>
> <tel:+1%20202-329-9650>____
>
> VOIP: +1 (202) 738-1739
> <tel:%2B1%20%28202%29%20738-1739>
> <tel:+1%20202-738-1739>____
>
> www.redbranchconsulting.com
> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=SW0awN355LgKou0VH8FoTnUMVW3Ew72doP7GYG8HOWw&e=>
> <http://www.redbranchconsulting.com/
> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com_&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=1k6KNFdJzQIC6CkW4-cXYamlUd3hWDS-W8MchdaYxlg&e=>>____
>
> My PGP Key:
> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=gBJP9BR7SmJmiYPTtMNTO5cs0-iDPOyGn0HBd1gGbLk&e=>
>
> <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=gBJP9BR7SmJmiYPTtMNTO5cs0-iDPOyGn0HBd1gGbLk&e=>>____
>
> __ __
>
> *From:*parminder [mailto:parminder at itforchange.net
> <mailto:parminder at itforchange.net>
> <mailto:parminder at itforchange.net
> <mailto:parminder at itforchange.net>>]
> *Sent:* Sunday, February 12, 2017 12:54 AM
> *To:* Paul Rosenzweig
> <paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>
> <mailto:paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>>>;
> ws2-jurisdiction at icann.org
> <mailto:ws2-jurisdiction at icann.org>
> <mailto:ws2-jurisdiction at icann.org
> <mailto: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
> <mailto:paul.rosenzweig at redbranchconsulting.com>
> <mailto:paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>>____
>
> O: +1 (202) 547-0660
> <tel:%2B1%20%28202%29%20547-0660>
> <tel:+1%20202-547-0660>____
>
> M: +1 (202) 329-9650
> <tel:%2B1%20%28202%29%20329-9650>
> <tel:+1%20202-329-9650>____
>
> VOIP: +1 (202) 738-1739
> <tel:%2B1%20%28202%29%20738-1739>
> <tel:+1%20202-738-1739>____
>
> www.redbranchconsulting.com
> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=SW0awN355LgKou0VH8FoTnUMVW3Ew72doP7GYG8HOWw&e=>
> <http://www.redbranchconsulting.com/
> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com_&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=1k6KNFdJzQIC6CkW4-cXYamlUd3hWDS-W8MchdaYxlg&e=>>____
>
> My PGP Key:
> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=gBJP9BR7SmJmiYPTtMNTO5cs0-iDPOyGn0HBd1gGbLk&e=>
>
> <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=gBJP9BR7SmJmiYPTtMNTO5cs0-iDPOyGn0HBd1gGbLk&e=>>____
>
> ____
>
> *From:*ws2-jurisdiction-bounces at icann.org
> <mailto:ws2-jurisdiction-bounces at icann.org>
> <mailto:ws2-jurisdiction-bounces at icann.org
> <mailto:ws2-jurisdiction-bounces at icann.org>>
> [mailto:ws2-jurisdiction-bounces at icann.org
> <mailto:ws2-jurisdiction-bounces at icann.org>
> <mailto: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
> <mailto:ws2-jurisdiction at icann.org>
> <mailto:ws2-jurisdiction at icann.org
> <mailto: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
> <mailto:Ws2-jurisdiction at icann.org>
> <mailto:Ws2-jurisdiction at icann.org
> <mailto:Ws2-jurisdiction at icann.org>>
> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
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>
> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
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> ____
>
> ____
>
> __ __
>
>
> _______________________________________________
> Ws2-jurisdiction mailing list
> Ws2-jurisdiction at icann.org
> <mailto:Ws2-jurisdiction at icann.org>
> <mailto:Ws2-jurisdiction at icann.org
> <mailto:Ws2-jurisdiction at icann.org>>
> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
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>
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>
>
>
> _______________________________________________
> Ws2-jurisdiction mailing list
> Ws2-jurisdiction at icann.org
> <mailto:Ws2-jurisdiction at icann.org>
> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>
>
> 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
> <mailto:Ws2-jurisdiction at icann.org>
> <mailto:Ws2-jurisdiction at icann.org
> <mailto:Ws2-jurisdiction at icann.org>>
> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>
>
> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
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> ____
>
> ____
>
> __ __
>
>
> _______________________________________________
> Ws2-jurisdiction mailing list
> Ws2-jurisdiction at icann.org
> <mailto:Ws2-jurisdiction at icann.org>
> <mailto:Ws2-jurisdiction at icann.org
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