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

Mon Jan 30 20:43:24 UTC 2017

Dear Paul,
Thank you very much.
Two things
1. You said that
You were "Dealing with the immigration “crisis” in the US is occupying my
time"

I was also struggling with the same issue.

In regard with your reply, while I appreciate that , I am not convinced
with the responses given for two reasons.

One you replied in CAP ( upper case) that according to ICANN rules is
considered that you were shouting.

Second, while I appreciate your professional quality as a respectful and
esteemed professor at several universities, former Deputy to Assistance
Secretary and author of those controversial comments relating to IANA
Transition, your responses were not convincing.

I did expect a more thorough analysis from you as a eminent lawyer

Anyhow, thank you indeed for the time and efforts spent on the matter.

I hope in future you would kindly use lower case and not shouting to me.

Best regards

Kavouss

2017-01-30 16:38 GMT+01:00 Paul Rosenzweig <
paul.rosenzweig at redbranchconsulting.com>:

> 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
>
>    1. 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.
>
>
>
>    1. 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
>
> 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:* Kavouss Arasteh [mailto:kavouss.arasteh at gmail.com
> <kavouss.arasteh at gmail.com>]
> *Sent:* Saturday, January 28, 2017 8:27 AM
> *To:* Mathieu Weill <mathieu.weill at afnic.fr>
> *Cc:* Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com>; Mueller,
> Milton L <milton at gatech.edu>; ws2-jurisdiction <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>:
>
> 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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>
>
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