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

[Greg Shatan]

For the Choice of Law/Governing Law field, the primary answer I intended to
put there was what law was actually applied to the case.  Secondarily, I
intended the answer to indicate if a Choice of Law provision had been
invoked.

The issue of whether a conflict of laws analysis was done by the court (and
under what law), and whether a contractual choice of law provision was
involved, are related but distinct issues.

On this basis, the expected answer would have been: "California" (assuming
the case was decided under California law).  Secondarily, the answer could
have indicated that California law was applied because there was a
contractual Choice of Law provision agreed by the parties.

Perhaps we need to tweak this question and break it into two questions, so
we can be clear in the answers:

Governing Law applied: [Here, put the law actually applied in the case]
Conflicts of Law analysis/Choice of Law provision?: [Here, indicate if the
documents show that governing law was determined through a conflicts of law
analysis, and whether a Choice of Law provision was present.]

Thoughts?

Greg

On Thu, Jan 26, 2017 at 1:44 PM, Paul Rosenzweig <
paul.rosenzweig at redbranchconsulting.com> wrote:

> 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
>
> paul.rosenzweig at redbranchconsulting.com
>
> O: +1 (202) 547-0660 <(202)%20547-0660>
>
> M: +1 (202) 329-9650 <(202)%20329-9650>
>
> VOIP: +1 (202) 738-1739 <(202)%20738-1739>
>
> 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 *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 <+33%201%2039%2030%2083%2006>
> mathieu.weill at afnic.fr
> Twitter : @mathieuweill
> *****************************
>
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