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

Sat Jan 28 00:34:10 UTC 2017

This seems sensible to me as far as this question on Governing Law / Choice 
of Law is concerned, thanks !

De : Paul Rosenzweig [mailto:paul.rosenzweig at redbranchconsulting.com]
Envoyé : vendredi 27 janvier 2017 20:44
À : 'Greg Shatan'
Cc : 'Mathieu Weill'; 'ws2-jurisdiction'
Objet : RE: [Ws2-jurisdiction] Case summary - 2 drafts for your review

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

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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> 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

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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 <tel:+33%201%2039%2030%2083%2006>
mathieu.weill at afnic.fr
Twitter : @mathieuweill
*****************************

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