[Ws2-jurisdiction] Case summary - 2 drafts for your review

[Paul Rosenzweig]

Mathieu

 

Thanks for this.  I think your detail level is appropriate.   Reading what
you have done leads me to two questions about the form generally that might
be of value in considering:

 

1.	One section of the form refers to “Choice of Law/Governing Law” – I
think that in filling this out we risk conflating two distinct legal issues
– what law governs the dispute (the substantive law to apply) and what law
controls choosing the governing law (i.e. procedurally, what choice of law
rules govern choosing the applicable law).  For example, a law suit in
California state will often apply California state law in deciding what law
to choose to govern the dispute – but that California law may often result
in identifying the governing law as the law of some other jurisdiction.  A
perfect example is a contract dispute that says “this contract is governed
by the laws of France.”  California law on choosing law says “the choice of
the parties in a contract should be given effect” and so a law suit between
two parties in California would result in the California court using French
law to resolve the dispute.  In your two cases this made a difference in the
Verisign case where California law applied to choose law, but the choice was
Federal antitrust.   I think we should distinguish between them
2.	In the “Effect on our Work” section I wonder at how you handled it.
For me, the answer in the Arizona case would be “none” since the suit was
dismissed early.  To be sure you write of its potential effect – which had
it succceded would have been significant.  But that gives too much credit to
the filing of a suit doesn’t it?  Shouldn’t our inquiry be whether or not
the exisiting legal system adequately protects our work from non-meritorious
interference.  And so, shouldn’t the Arizona case be a good sign that, at
least in this case, the court reached a result that had no impact?

 

Paul

 

Paul Rosenzweig

 <mailto:paul.rosenzweig at redbranchconsulting.com>
paul.rosenzweig at redbranchconsulting.com

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M: +1 (202) 329-9650

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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 Mathieu Weill
Sent: Wednesday, January 25, 2017 6:35 PM
To: ws2-jurisdiction at icann.org
Subject: [Ws2-jurisdiction] Case summary - 2 drafts for your review

 

Dear Colleagues, 

 

During a long flight today, I tried to apply our case summary form to two of
the past ICANN litigations. Both forms are attached for :

*	The State of Arizona vs NTIA case in Sep 2016 (I guess many of us
are familiar with this case)
*	The 2004-2006 Verisign vs ICANN case  

 

I’d appreciate feedbacks from the group regarding whether the detail level
is appropriate, and whether the information is relevant to the various
questions. Thank you for your understanding if there are any confusions due
to my lack of legal skills. 

 

Best,

 

-- 
***************************** 
Mathieu WEILL 
AFNIC - directeur général 
Tél: +33 1 39 30 83 06 
 <mailto:mathieu.weill at afnic.fr> mathieu.weill at afnic.fr 
Twitter : @mathieuweill 
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