[Ws2-jurisdiction] Case summary - 2 drafts for your review
Paul Rosenzweig
paul.rosenzweig at redbranchconsulting.com
Mon Jan 30 15:38:05 UTC 2017
Dear Kavouss
As promised. My responses are below (I’ve cut and pasted your questions back here at the top) in CAPS
My Questions are
a. What do you mean by (the substantive law to apply?)
I MEAN THE LAW THAT WILL BE USED TO DECIDE THE CASE. FOR EXAMPLE, IT MAY BE AGAINST THE LAW, IN SAY, INDIA, FOR ICANN TO REFUSE TO PUBLISH ITS FINANCIAL DATA PUBLICLY (I AM MAKING THIS EXAMPLE UP OF COURSE – I DON’T KNOW WHAT INDIAN LAW IS). IF THE COURT OR ARBITRATOR HEARING THE CASE DECIDED THAT INDIAN LAW WAS THE APPLICABLE SUBSTANTIVE LAW, IT WOULD THEN HAVE TO MAKE A DECISION ABOUT WHETHER OR NOT ICANN WAS VIOLATING THE SUBSTANTIVE LAW. IN OTHER WORDS, IT WOULD HAVE TO DECIDE WHAT INDIAN LAW REQUIRES AND WHETHER OR NOT ICANN HAD COMPLIED. THE INDIAN LAW HERE WOULD BE THE SUBSTANTIVE LAW TO APPLY TO THE CASE.
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.
THAT VERY MUCH DEPENDS ON WHERE THE SUIT IS BROUGHT AND WHAT ELSE THE PARTIES HAVE SAID. FOR EXAMPLE, THE PARTIES COULD SAY “SWISS LAW APPLIES BUT THE CASE WILL BE HEARD IN LONDON ARBITRATION” OR “SWISS LAW APPLIES AND THE CASE SHOULD BE IN SWISS COURT” FOR THE SECOND OF THESE, IF SOMEONE BROUGHT A SUIT IN THE US COURTS ANYWAY, THE US COURTS WOULD GENERALLY DEFER TO THE LANGUAGE OF THE CONTRACT AND DISMISS THE CASE WITH DIRECTION TO REFILE IT IN SWITZERLAND. I DO NOT KNOW WHAT THE LAW WOULD BE IF THE SUIT WERE IN INDIA OR IRAN OR THE UK OR FRANCE THOUGH.
THE HARDER QUESTION IS WHEN THE PARTIES SAY THAT “SWISS LAW APPLIES” BUT THEY DON’T SAY ANYTHING ABOUT WHERE THE COURT CASE SHOULD BE. THEN THE COURTS WOULD HAVE TO DECIDE – IN THE US THAT DECISION WOULD BE BASED ON QUESTIONS OF CONVENIENCE (WHERE ARE THE WITNESSES, FOR EXAMPLE?) AND OTHER SIMILARLY EQUITABLE QUESTIONS. AGAIN, I HAVE NO IDEA HOW AN INDIAN/IRANIAN/UK/FRENCH COURT WOULD ANSWER THE QUESTION.
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
IF A COURT KEPT A CASE BUT HAD TO APPLY SWISS LAW, THE COURT WOULD HAVE TO BE EDUCATED IN THE LAW. THAT MIGHT BE BY THE PARTIES OR THE COURT MIGHT ASK AN EXPERT. IN THE US WE ALSO HAVE A PROCESS (NOT USED THAT OFTEN) WHERE THE US COURT COULD CERTIFY THE QUESTION TO A SWISS COURT AND ASK IT FOR THE ANSWER. THE DIFFICULTY IN LEARNING THE LAW IS ANOTHER ONE OF THE EQUITABLE FACTORS THAT MIGHT MAKE A US COURT TRANSFER THE CASE TO SWITZERLAND IF THE PARTIES HAVE NOT SPECIFIED THAT IN CONTRACT TO STAY IN THE US.
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?
USUALLY, PARTIES MAKE THE CHOICE OF LAW BEFORE HAND WHEN THEY ENTER A CONTRACT. IF THEY DON’T THEN IT IS UNLIKELY THAT THEY WILL AGREE WHEN THE LAW SUIT STARTS – AFTER ALL, THEY ARE NOW FIGHTING IN COURT AND I ASSUME THAT ONE OF THE PARTIES WILL LOOK AT IT AND SAY “I WIN UNDER SWISS LAW” AND THE OTHER WILL SAY TO ITSELF “SINCE WE MAY LOSE UNDER SWISS LAW, LETS ASK FOR INDIAN LAW.” IF THE PARTIES WERE IN AGREEMENT AS TO APPLICABLE LAW, A US COURT WOULD PROBABLY HONOR THAT AGREEMENT – BUT IT IS MUCH MORE LIKELY THAT THEY WOULD DISAGREE.
Paul Rosenzweig
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From: Kavouss Arasteh [mailto:kavouss.arasteh at gmail.com]
Sent: Saturday, January 28, 2017 8:27 AM
To: Mathieu Weill <mathieu.weill at afnic.fr <mailto:mathieu.weill at afnic.fr> >
Cc: Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com <mailto:paul.rosenzweig at redbranchconsulting.com> >; Mueller, Milton L <milton at gatech.edu <mailto:milton at gatech.edu> >; ws2-jurisdiction <ws2-jurisdiction at icann.org <mailto:ws2-jurisdiction at icann.org> >
Subject: Re: [Ws2-jurisdiction] Case summary - 2 drafts for your review
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 <mailto: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: <mailto:paul.rosenzweig at redbranchconsulting.com> paul.rosenzweig at redbranchconsulting.com]
Envoyé : vendredi 27 janvier 2017 17:01
À : 'Mueller, Milton L'; 'Mathieu Weill'; <mailto:ws2-jurisdiction at icann.org> 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
<mailto:paul.rosenzweig at redbranchconsulting.com> paul.rosenzweig at redbranchconsulting.com
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From: Mueller, Milton L [mailto:milton at gatech.edu <mailto:milton at gatech.edu> ]
Sent: Friday, January 27, 2017 10:36 AM
To: Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com <mailto:paul.rosenzweig at redbranchconsulting.com> >; 'Mathieu Weill' <mathieu.weill at afnic.fr <mailto:mathieu.weill at afnic.fr> >; ws2-jurisdiction at icann.org <mailto: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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