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

Fri Jan 27 19:44:25 UTC 2017

That certainly seems sensible to me – especially since the word we are using for the overarching discussion “jurisdiction” means both types of legal control … substantive and procedural

P

Paul Rosenzweig

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

O: +1 (202) 547-0660

M: +1 (202) 329-9650

VOIP: +1 (202) 738-1739

 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com

My PGP Key:  <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684

From: Greg Shatan [mailto:gregshatanipc at gmail.com] 
Sent: Friday, January 27, 2017 2:09 PM
To: Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com>
Cc: Mathieu Weill <mathieu.weill at afnic.fr>; ws2-jurisdiction <ws2-jurisdiction at icann.org>
Subject: Re: [Ws2-jurisdiction] Case summary - 2 drafts for your review

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 <mailto: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

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

O: +1 (202) 547-0660 <tel:(202)%20547-0660> 

M: +1 (202) 329-9650 <tel:(202)%20329-9650> 

VOIP: +1 (202) 738-1739 <tel:(202)%20738-1739> 

 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com

My PGP Key:  <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684

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 Mathieu Weill
Sent: Wednesday, January 25, 2017 6:35 PM
To: ws2-jurisdiction at icann.org <mailto: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 <tel:+33%201%2039%2030%2083%2006>  
mathieu.weill at afnic.fr <mailto:mathieu.weill at afnic.fr>  
Twitter : @mathieuweill 
*****************************

_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction at icann.org <mailto:Ws2-jurisdiction at icann.org> 
https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/ws2-jurisdiction/attachments/20170127/3b573f1c/attachment.html>