[Ws2-jurisdiction] FW: Questions based on Parminder's statements in the last meeting about GAC participation

Wed Mar 1 16:54:59 UTC 2017

All,

Any other thoughts on these questions?  I may take off my rapporteur hat
and offer a few of my own, but I prefer to wait until others have weighed
in.

Greg

*Greg Shatan *C: 917-816-6428
S: gsshatan
Phone-to-Skype: 646-845-9428
gregshatanipc at gmail.com

On Wed, Mar 1, 2017 at 11:53 AM, Greg Shatan <gregshatanipc at gmail.com>
wrote:

> Paul & Jorge,
>
> In a sense, you are both right.
>
> The questions I posed were not directly about immunity.  Rather, they
> inquired about (a) whether any GAC members agreed with Parminder's
> characterization of the thinking of (at least some) GAC members and (b)
> whether any other participants agreed with the other points made by
> Parminder.
>
> However, the second and third questions, assuming the same answer would be
> true for any particular jurisdiction, lead inexorably to consideration of
> immunity (since the thinking is that it would be unfair to subject ICANN to
> the law of any jurisdiction).
>
> The fourth question has no direct relationship to immunity.
>
> The fifth question implies the possible consideration of immunity, but
> doesn't require it.
>
> Greg
>
>
> *Greg Shatan *C: 917-816-6428 <(917)%20816-6428>
> S: gsshatan
> Phone-to-Skype: 646-845-9428 <(646)%20845-9428>
> gregshatanipc at gmail.com
>
>
> On Wed, Mar 1, 2017 at 9:29 AM, Paul Rosenzweig <paul.rosenzweig@
> redbranchconsulting.com> wrote:
>
>> Well .. that’s interesting, as I understood it as completely about
>> immunity.  J  The idea seemed to me, at least, to be about how ICANN
>> should be immune from US law (or any law) that was not democratically
>> agreed upon by all citizens of the world.  Certainly, in the context of
>> what Paraminder was talking about on the call to which this referred, it
>> seemed that was what the questions were about
>>
>>
>>
>> P
>>
>>
>>
>> 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=0x9A830
>> 097CA066684
>>
>>
>>
>> *From:* Jorge.Cancio at bakom.admin.ch [mailto:Jorge.Cancio at bakom.admin.ch]
>> *Sent:* Wednesday, March 1, 2017 9:15 AM
>> *To:* paul.rosenzweig at redbranchconsulting.com; ws2-jurisdiction at icann.org
>> *Subject:* AW: [Ws2-jurisdiction] FW: Questions based on Parminder's
>> statements in the last meeting about GAC participation
>>
>>
>>
>> Dear Paul
>>
>>
>>
>> Thanks for this info. I did not remember it in the context of the issue
>> of immunities as it seems to me only weakly related to it, at most, but,
>> again, perhaps I’m missing something… “immunities” is not even mentioned in
>> the questions…
>>
>>
>>
>> Regards
>>
>>
>>
>> Jorge
>>
>>
>>
>>
>>
>> *Von:* ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounc
>> es at icann.org <ws2-jurisdiction-bounces at icann.org>] *Im Auftrag von *Paul
>> Rosenzweig
>> *Gesendet:* Mittwoch, 1. März 2017 15:04
>> *An:* ws2-jurisdiction at icann.org
>> *Betreff:* [Ws2-jurisdiction] FW: Questions based on Parminder's
>> statements in the last meeting about GAC participation
>>
>>
>>
>> Seun/All
>>
>>
>>
>> This is the questionnaire, my response, and David’s supplement.  It is
>> the first one I found in my files, but there were other answers as well
>>
>>
>>
>> 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=0x9A830
>> 097CA066684
>>
>>
>>
>> *From:* ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounc
>> es at icann.org <ws2-jurisdiction-bounces at icann.org>] *On Behalf Of *McAuley,
>> David
>> *Sent:* Wednesday, February 22, 2017 12:41 PM
>> *To:* ws2-jurisdiction at icann.org
>> *Subject:* Re: [Ws2-jurisdiction] Questions based on Parminder's
>> statements in the last meeting about GAC participation
>>
>>
>>
>> I agree with Paul.
>>
>>
>>
>> The only thing to add concerns the fourth point.
>>
>>
>>
>> I think Paul is correct on the fourth point, including where he say that
>> so long as ICANN has any interests/assets/effects in a country, it cannot
>> effectively avoid that jurisdiction.
>>
>>
>>
>> In addition, many countries have treaties/arrangements to enforce final
>> judgments from other countries – these may be bilateral, regional, or even
>> globally multilateral treaties. So it may turn out that ICANN cannot avoid
>> a judgment even if it fled the realm, taking all of its interests, assets,
>> and effects with it.
>>
>>
>>
>> David
>>
>>
>>
>> David McAuley
>>
>> International Policy Manager
>>
>> Verisign Inc.
>>
>> 703-948-4154 <(703)%20948-4154>
>>
>>
>>
>> *From:* ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounc
>> es at icann.org <ws2-jurisdiction-bounces at icann.org>] *On Behalf Of *Paul
>> Rosenzweig
>> *Sent:* Wednesday, February 22, 2017 11:57 AM
>> *To:* 'Greg Shatan' <gregshatanipc at gmail.com>; 'ws2-jurisdiction' <
>> ws2-jurisdiction at icann.org>
>> *Subject:* [EXTERNAL] Re: [Ws2-jurisdiction] Questions based on
>> Parminder's statements in the last meeting about GAC participation
>>
>>
>>
>> Greg/All
>>
>>
>>
>> My responses are as follows (questions repeated for clarity):
>>
>>
>>
>> *First, for any GAC members, is it your position that you agree with
>> Parminder's statements regarding GAC members?*
>>
>>
>>
>> Not applicable.
>>
>>
>>
>> *Second, for all participants, do you agree that only a law that has been
>> democratically arrived at by all the citizens of the world can be applied
>> to ICANN?  Are you aware of any such body of law?*
>>
>>
>>
>> I do not agree.  To begin with there is no realistic possibility of any
>> law being created that has been democratically arrived at  by all citizens
>> of the world.  To say that only this law can apply to ICANN is to say that
>> no law at all can apply to ICANN.  I am not aware of any body of law that
>> would satisfy this criteria, as almost all international law is adopted by
>> nations, not by the citizens of the world, and it is not the case that all
>> of the nations participating in the creation of an international body of
>> law are themselves democratically representative.
>>
>>
>>
>> *Third, for all participants, do you agree that US law cannot be applied
>> to ICANN because it has only been democratically arrived at by US citizens?*
>>
>>
>>
>> I do not agree.  US law can and will apply to any institution that is
>> subject to it.  That include people who are US citizens; companies that do
>> business in the US and anyone who is present in the US.  The same of course
>> is true of every nation in the world – the all assert jurisdiction over
>> citizens, residents, and companies/individuals with substantial interests
>> that effect their country.  If instead of “cannot” (a descriptive) you mean
>> “should not” (a normative) I disagree as well.  First, of course, there is
>> no real use in establishing a norm that cannot practically be realized.
>> Second, and more importantly, subjecting ICANN to US law (and also to the
>> laws of other States) is precisely how we achieve accountability.  In the
>> absence of applicable law, ICANN becomes unaccountable.
>>
>>
>>
>> *Fourth, for all participants, do you agree that if ICANN is sued in a
>> jurisdiction where it has an office, other than its jurisdiction of
>> incorporation and loses, that ICANN can avoid complying with the judgment
>> by closing its office in that jurisdiction?*
>>
>>
>>
>> I do not agree.  This is simply wrong as a matter of law in the US, in
>> Germany, and in Britain, which are the three countries whose law I am
>> familiar with. I imagine it is also wrong for many (most?) other nations.
>> So long as ICANN has any interests/assets/effects in a country, it cannot
>> effectively avoid that jurisdication.  I would also note that the
>> underlying suggestion (that ICANN seek to avoid valid judgements rendered
>> by courts in a jurisdiction) is fundamentally lawless and that ICANN should
>> not be in a position of suggesting that it can avoid the rule of law by
>> artificial means of closing its operations.
>>
>>
>>
>> *Fifth, assuming for the sake of discussion that "ICANN primarily is a
>> body with a global government function and only secondarily, an US
>> nonprofit," what is the relevance, if any, to our primary tasks of
>> enhancing ICANN's accountability and determining whether ICANN's
>> accountability is negatively affected by its current jurisdictional set-up?*
>>
>>
>>
>> As far as I can tell, this is irrelevant.  [It is also wrong, but you
>> insisted on assuming the premise.]   More to the point, the status of ICANN
>> as a US non profit is an essential part of the accountability mechanisms
>> that we just spend many thousands of hours creating.
>>
>>
>>
>>
>>
>> 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=0x9A830
>> 097CA066684
>>
>>
>>
>> *From:* ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounc
>> es at icann.org <ws2-jurisdiction-bounces at icann.org>] *On Behalf Of *Greg
>> Shatan
>> *Sent:* Monday, February 20, 2017 10:12 PM
>> *To:* ws2-jurisdiction <ws2-jurisdiction at icann.org>
>> *Subject:* [Ws2-jurisdiction] Questions based on Parminder's statements
>> in the last meeting about GAC participation
>>
>>
>>
>> All,
>>
>>
>>
>> On our last call there were some remarks by Parminder about the position
>> of GAC members regarding ICANN.  It was not clear to me that GAC members
>> actually held the beliefs ascribed to them.  We were not able to determine
>> this on the call, one way or the other.  I've now excerpted the relevant
>> sections of the transcript and confirmed them against the audio.  These
>> sections are attached.  In addition to the question about the GAC, these
>> statements raise a few other questions:
>>
>>
>>
>> *First, for any GAC members, is it your position that you agree with
>> Parminder's statements regarding GAC members?*
>>
>>
>>
>> *Second, for all participants, do you agree that only a law that has been
>> democratically arrived at by all the citizens of the world can be applied
>> to ICANN?  Are you aware of any such body of law?*
>>
>>
>>
>> *Third, for all participants, do you agree that US law cannot be applied
>> to ICANN because it has only been democratically arrived at by US citizens?*
>>
>>
>>
>> *Fourth, for all participants, do you agree that if ICANN is sued in a
>> jurisdiction where it has an office, other than its jurisdiction of
>> incorporation and loses, that ICANN can avoid complying with the judgment
>> by closing its office in that jurisdiction?*
>>
>>
>>
>> *Fifth, assuming for the sake of discussion that "ICANN primarily is a
>> body with a global government function and only secondarily, an US
>> nonprofit," what is the relevance, if any, to our primary tasks of
>> enhancing ICANN's accountability and determining whether ICANN's
>> accountability is negatively affected by its current jurisdictional set-up?*
>>
>>
>>
>> Thank you.
>>
>>
>>
>> Greg
>>
>>
>>
>>
>>
>> *Greg Shatan*
>>
>> C: 917-816-6428 <(917)%20816-6428>
>> S: gsshatan
>> Phone-to-Skype: 646-845-9428 <(646)%20845-9428>
>> gregshatanipc at gmail.com
>>
>> _______________________________________________
>> Ws2-jurisdiction mailing list
>> Ws2-jurisdiction at icann.org
>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>>
>>
>
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