[Ws2-jurisdiction] Draft (long) question on notions of presence and jurisdiction

[Mathieu Weill]

David,



Thank you so much for this draft. I think it captures the general spirit
of the question very well. My only suggestion would be to ensure we also
get feedback from the lawyers on whether they agree with the “premise” you
mention at the beginning of the note (“premise that ICANN (incorporated as
a nonprofit company in California) is subject to litigation in the
countries where it has these presences”)



Best

Mathieu



De : ws2-jurisdiction-bounces at icann.org
[mailto:ws2-jurisdiction-bounces at icann.org] De la part de McAuley, David
Envoyé : vendredi 27 janvier 2017 16:42
À : ws2-jurisdiction at icann.org
Objet : [Ws2-jurisdiction] Draft (long) question on notions of presence
and jurisdiction



Greg asked if I would put together a possible question to legal counsel
regarding a point I made during our last call about the likelihood that
notions of jurisdiction for litigation and the related importance of
physical presence may be changing in the digital age.



I have attempted to do that below, in language that became longer than
expected in trying to add good context.



I believe that this is a matter that we may look at as a subgroup and so
offer this draft for our consideration – for tweaking/changing/shortening
as we see fit - and deciding if we wish to pose such a query at all. I ask
some internal questions to us in red italics in parentheses.



Best regards,

David



David McAuley

International Policy Manager

Verisign Inc.

703-948-4154



DRAFT QUERY:



The Work Stream 2 subgroup on jurisdiction requests legal advice as
described in this note.



We have been working on the premise that ICANN (incorporated as a
nonprofit company in California) is subject to litigation in the countries
where it has these presences:



·         Hub offices:



o   USA

o   Turkey

o   Singapore



·         Engagement offices:



o   China

o   Belgium

o   Switzerland

o   Uruguay

o   Kenya

o   Republic of Korea

We believe it would be useful for us to know whether jurisdiction against
ICANN in (civil, criminal, do we care) litigation could be maintained
elsewhere.



There are generally three aspects to our interest.



First, there are countries other than those listed above where ICANN
employees reside and “work from home” for the most part – being paid by
ICANN in the employee’s local currency. (Is this correct?  Also, is ICANN
‘registered’ anywhere else than where it has an office?)



Second are countries where ICANN has had no physical presence like those
above but has held one or more formal ICANN meetings (like ICANN 57 in
Hyderabad, India) which are significant to ICANN’s multistakeholder
operations.



And then there are countries where ICANN has had no physical presence at
all.



We note that in its Articles of Incorporation
<https://www.icann.org/resources/pages/governance/articles-en>  ICANN
states, among other things, that it shall promote the global public
interest in the operational stability of the Internet and that it will
operate for the benefit of the Internet community as a whole, carrying out
its activities in conformity with relevant principles of international law
and international conventions and applicable local law.



And we note that in its Bylaws
<https://www.icann.org/resources/pages/governance/bylaws-en>  ICANN
commits, among other things, to operate for the benefit of the Internet
community as a whole, carrying out its activities in conformity with
relevant principles of international law and international conventions and
applicable local law.



We generally understand that in many places jurisdiction for litigation is
premised on physical presence in some manner. But we wonder whether in the
digital age the concept of “targeting” can be used as a basis for
litigation jurisdiction.



In other words we wonder whether a party, based where ICANN has no office,
could successfully maintain a lawsuit against ICANN in a local court based
on the argument that ICANN targeted them improperly for some action.



We are looking for general advice rather than a country-by-country
analysis, being interested in trends and reasonable probability and not
legal certainty at this point (this relates to cost/effort – how do we
wish to control this).









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