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

Sat Jan 28 13:27:07 UTC 2017

Dear All.

I agree with most of you in analysis that were done.

However, I tend to agree with Mathieu in the need 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)*

and any subsequent actions that may be required to follow.

In reply to the first reaction by Paul,  when he concluded

Quote

*"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"*

My Questions are

a) What do you mean by *(**the substantive law to apply?**)*

b) If the parties made a choice of law , say  e.g. Swiss Law, should the
case be sent to a Swiss Court or as you said the case still would be
treated by the Court to which it was submitted but the Court merely applies
Swiss Law.

In the latter case, to what extent the Court could claim that it is fully
familiar to all details of Swiss Law? Take the extreme case that there
would agreements for 20, 30 ...  choice of Law for 20, 30 different cases.
Do you believe that the Court in question would be familiar with the
details of all 20, 30 Laws ? I find it very difficult that ,e.g. a  State
Court  in any country would have such vast knowledge of all laws that
mentioned above

c) If case  that there is no previously agreed for a choice of Law, why it
would not be possible that the parties be asked for the choice of Law
before the Court in question starts discussing the case.

An extreme situation of that was the case  of "Y" that the defendant had no
information that at a given date a plaintiff  would submit a case  to any
Court thus there was possibility to  choose a given Law. Then wouldn't it
be logical that both parties be given the opportunity to choose a given Law?

2017-01-28 1:34 GMT+01:00 Mathieu Weill <mathieu.weill at afnic.fr>:

> 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
>
> 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:* 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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