[Ws2-jurisdiction] Blog post on ICANN's jurisdiction
Seun Ojedeji
seun.ojedeji at gmail.com
Sat Feb 25 14:42:20 UTC 2017
Hmm...I count myself as one of those who consider some legal expense made
during WS1 to be waste of money[1] but some others don't feel the same
hence we spent on. The good/encouraging thing is that we had the transition
anyway.
I think for once we should give an opportunity to hear "what form of
immunity/waiver that will allow ICANN to serve her global community equally
is feasible without affecting ICANN accountability mechanisms that has been
put in place". No problem If what you've just shared is what legal will
come back with as a response and I don't think this will be too expensive
compared to what we've gone through in the past.
Regards
1. The questions we asked then had responses within the group(plus
responses from ICANN legal) but we still went ahead to ask external legal
who then came back to us with response paraphrased to mean the following:
"...anything is possible, it depends on what we want" and then we looked at
pros and cons. That similar opportunity is what is lacking in this current
process.
On Feb 25, 2017 3:10 PM, "Nigel Roberts" <nigel at channelisles.net> wrote:
> Ladies and Gentlemen
>
> Although the haste of the pre-transition days has gone, I think we should
> still be proportionate in spending the corporations legal budget.
>
> It is entirely a waste of money, in my opinion, to instruct lawyers to
> inform on a proposition which is objected to.
>
> It is irrelevant WHETHER ICANN may waive immunity.
>
> ICANN *SHOULD NOT HAVE* immunity.
>
>
>
> On 25/02/17 13:51, Kavouss Arasteh wrote:
>
>> Dear Grec
>> I fully agree with Seun.
>> We must raise this question legally and ask for a NEUTRAL LEGAL VIEW
>> There is désagrément on the matter.
>> Several person said, there is no possibility to Immune ICANN from US LAW
>> Others said .it has had a precedence.
>> This exchange of correspondence is totally counter productive and must
>> be resolved properly.
>> I terrefort request Greg, to formulate the question/ view on the matter
>> and after consultation with Co-Chair ask for an international Neutral
>> Legal View .
>> Regards
>> Kavouss
>>
>> 2017-02-25 10:43 GMT+01:00 Seun Ojedeji <seun.ojedeji at gmail.com
>> <mailto:seun.ojedeji at gmail.com>>:
>>
>> On Feb 25, 2017 5:21 AM, "parminder" <parminder at itforchange.net
>> <mailto:parminder at itforchange.net>> wrote:
>>
>> Becky, thanks for your response and please see inline.
>>
>>
>>
>> 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.
>>>
>>>
>> As argued in my previous email, based on an legal memo attached
>> to an ICANN report, it is evident that ICANN can waive immunity
>> with regard to operation of relevant California non profit law
>> required for its accountability mechanism. I am happy to seek
>> legal advice on this point. But from what looks apparent now,
>> your above statement may not hold true.
>>
>>
>> SO: FWIW, Can we then derive a question from this for the legal to
>> answer? I think it may be better we have something
>> officially/formerly documented with regards to this, otherwise we
>> will just keep coming back to it everytime. It will be good to be
>> able to provide documentation is future to show that it's a matter
>> that has been discussed and brought to a "consensus based" conclusion.
>>
>> Regards
>>
>>
>>
>>
>> ____
>>>
>>> __ __
>>>
>>> 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.
>>>
>>>
>> Yes, it needs action by both the Congress and the President of
>> the US. The former will need to just amend some existing laws
>> related to some international orgs and add ICANN somewhere in
>> it. Simple work. And the President has to issue a decree under
>> the Immunities Act.
>>
>> ICANN is not a treaty-based organization,
>>>
>>>
>> This is not required.
>>
>>>
>>> nor is it conducting work normally carried out by an
>>> intergovernmental organization.
>>>
>>>
>> As shown by Jorge, this is not true.
>>
>>
>> Turning it into a treaty-based organization
>>>
>>>
>> No need to turn it into treaty based org to get US immunity.
>>
>>>
>>> would seem to me to violate the Bylaws-mandated Core Value
>>> that requires ICANN to */remain rooted in the private sector/*.
>>>
>>>
>> There is a linguistic problem here. Private sector is understood
>> differently in the US than almost everywhere else. In the US, it
>> is just to be outside government, which ICANN is. Outside the
>> US, it mostly mean for profit sector. ICANN is indeed outside
>> government(s), and there is no proposal to change that. But it
>> is also equally a non profit . That also I hope is not intended
>> to be changed.
>>
>> In any case, whether non profit or for profit, everything is
>> always subject to some kind of governmental jurisdiction. Being
>> so subject does not change its non profit or even for profit
>> nature. So the point is really moot.
>>
>> 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.
>>>
>>>
>> The community asked this group to consider the issue of US
>> jurisdiction over ICANN. And a question can only be considered
>> if it is open - -unless, sorry to use that word, we are all
>> mutually and together fooling ourselves, and doing discussions
>> that really have no meaning or purpose. I really hope this is
>> not the case - -although, I must admit, despair often does
>> arises that it may actually may be the case.
>>
>> parminder
>>
>>>
>>> ____
>>>
>>> __ __
>>>
>>> __ __
>>>
>>> __ __
>>>
>>> __ __
>>>
>>> ____
>>>
>>> __ __
>>>
>>> *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>] *On Behalf Of
>>> *Seun Ojedeji
>>> *Sent:* Tuesday, February 14, 2017 1:43 PM
>>> *To:* Greg Shatan <gregshatanipc at gmail.com>
>>> <mailto:gregshatanipc at gmail.com>
>>> *Cc:* ws2-jurisdiction <ws2-jurisdiction at icann.org>
>>> <mailto: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 <tel:(917)%20816-6428>
>>> S: gsshatan
>>> Phone-to-Skype: 646-845-9428 <tel:(646)%20845-9428>
>>> 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_GRlaq8Mo8
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>>> <http://www.redbranchconsulting.com/
>>> <https://urldefense.proofpoint
>>> .com/v2/url?u=http-3A__www.redbranchconsulting.com_&d=
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>>> s6UDz8t8hgsao&s=1k6KNFdJzQIC6CkW4-cXYamlUd3hWDS-W8MchdaYxlg&e=>>____
>>>
>>> My PGP Key:
>>>
>>> https://keys.mailvelope.com/pk
>>> s/lookup?op=get&search=0x9A830097CA066684
>>> <https://urldefense.proofpoint
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>>> P9BR7SmJmiYPTtMNTO5cs0-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>____
>>>
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>>>
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>>>
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>>> P9BR7SmJmiYPTtMNTO5cs0-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_GRlaq8Mo8
>>> TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJ
>>> s6UDz8t8hgsao&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_GRlaq8Mo8
>>> TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJ
>>> s6UDz8t8hgsao&s=1k6KNFdJzQIC6CkW4-cXYamlUd3hWDS-W8MchdaYxlg&e=>>____
>>>
>>> My PGP Key:
>>>
>>> https://keys.mailvelope.com/pk
>>> s/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_GRlaq8Mo8TjDmrxdYahOP8
>>> WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=gBJ
>>> P9BR7SmJmiYPTtMNTO5cs0-iDPOyGn0HBd1gGbLk&e=>
>>>
>>> <https://keys.mailvelope.com/p
>>> ks/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_GRlaq8Mo8TjDmrxdYahOP8
>>> WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=gBJ
>>> P9BR7SmJmiYPTtMNTO5cs0-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_GRlaq8Mo8
>>> TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJ
>>> s6UDz8t8hgsao&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=>
>>
>> ...
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