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

[Mathieu Weill]

Thanks for raising this point Paul,



This is indeed a question that I faced trying this out. We need an
approach that is consistent across all cases, and as you point out, even
when cases may not end up being decided against ICANN, there can be an
effect.



So my suggestion is to assess :

-          Whether there was actually an impact

-          Whether there would have been an impact if the case had been
decided, or would be decided in the future, against ICANN (potential
impact)



It’s going to be another phase of our work to determine which lessons we
draw from the cases, and whether we believe it’s appropriate to take these
potential impacts into account within the work of our group. If, by then,
we want to exclude the “potential impact” sections, we’ll do so, but at
the data collection level, when we fill the form, I think we should
include this piece of information.



Best

Mathieu



De : Paul Rosenzweig [mailto:paul.rosenzweig at redbranchconsulting.com]
Envoyé : vendredi 27 janvier 2017 17:01
À : 'Mueller, Milton L'; 'Mathieu Weill'; ws2-jurisdiction at icann.org
Objet : RE: [Ws2-jurisdiction] Case summary - 2 drafts for your review



I agree with Milton.  By contrast, for example, the DotAfrica case is
relevant as it reflects an instance where the legal system did have an
effect on ICANN’s actions (that’s a statement of fact – not an assertion
that the effect was good or bad).  The question in the end will be what
those effects are; whether they are adverse; and if changing to another
jurisdiction would make the situation worse or better



Paul



Paul Rosenzweig

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From: Mueller, Milton L [mailto:milton at gatech.edu]
Sent: Friday, January 27, 2017 10:36 AM
To: Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com>; 'Mathieu
Weill' <mathieu.weill at afnic.fr>; ws2-jurisdiction at icann.org
Subject: RE: [Ws2-jurisdiction] Case summary - 2 drafts for your review



I have to agree mostly with Paul on this:



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?



That case was a desperation delaying act that had no real legal basis,
which the court quickly recognized. Apparently the plaintiffs realized it
was groundless too  - which is why they abandoned the case after failing
to get the injunction. In others words, this was an attempt to use legal
procedure to delay an outcome until the political situation changed, not a
challenge based on the specific characteristics of US or Calif law. Unless
one can argue that the U.S. jurisdiction is uniquely prone to these kinds
of tricks working (and here I leave it to people with more comparative law
experience than me), I don’t think the case is relevant.

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