[Ws2-jurisdiction] [EXTERNAL] issues on applicable law

Mon Sep 11 08:47:56 UTC 2017

I meant to say, "the same could go with the forum", not court, obivously ;)

Best,

2017-09-11 10:46 GMT+02:00 Raphaël BEAUREGARD-LACROIX <
raphael.beauregardlacroix at sciencespo.fr>:

> Kavouss,
>
> I believe that was Becky was suggesting was an adaptation of applicable
> law according to pre-defined regions in the world.
>
> For example, all registries in Europe could enter into a RA whose
> governing law would be Dutch law while North American registries would have
> US law as governing law, and then the community could provide input on
> which governing law they would want to have on a regional basis.
>
> The same could go with courts, as I and Eric mentioned as well.
>
> Obviously defining regions is somewhat arbitrary, but the community could
> also provide input on that.
>
> I still think that the RAs are drafted accoding to an American style and
> would be better served by California law governing, while there could be
> more flexibility on the choice of forum.
>
> Best,
>
> 2017-09-11 7:19 GMT+02:00 Schweighofer Erich <
> erich.schweighofer at univie.ac.at>:
>
>> Dear all,
>>
>>
>>
>> I would support Beck Burr. It makes good sense to recommand regional
>> arbitration courts that know the ICANN system and are established in
>> jurisdictions with only necessary interference in arbitation (e.g. due
>> process, transparency, rule of law).
>>
>>
>>
>> Best,
>>
>> Erich
>>
>>
>>
>> *Von: *Kavouss Arasteh <kavouss.arasteh at gmail.com>
>> *Gesendet: *Montag, 11. September 2017 07:12
>> *An: *Burr, Becky <Becky.Burr at team.neustar>; ws2-jurisdiction
>> <ws2-jurisdiction at icann.org>
>> *Betreff: *Re: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law
>>
>>
>> Dear Beckie
>> Thanks for your views to which I totally disagree as a) thgere is no
>> regional jurisdiction and b) there is no agreed definition of region. It is
>> Strange that such a competent person like you taking about Something which
>> does  not  exist t and can not exist as region is a term totally
>> subjdective and can in no way be used for jurisdiction
>> Kavouss
>>
>> On Thu, Sep 7, 2017 at 1:55 PM, Burr, Becky via Ws2-jurisdiction <
>> ws2-jurisdiction at icann.org> wrote:
>>
>>> FWIW, punitive damages are not usually permitted in contract disputes –
>>> I wonder why ICANN includes them at all.
>>>
>>> Also, rather than requiring ICANN to agree to submit to the jurisdiction
>>> of every country where it has a relationship with a registry or registrar,
>>> is it worth considering regional jurisdiction?  Contracts with European
>>> registries and registrars could specify Swiss or Dutch or some other law,
>>> etc.?
>>>
>>> *J. Beckwith Burr*
>>> *Neustar, Inc.* / Deputy General Counsel & Chief Privacy Officer
>>> 1775 Pennsylvania Avenue NW DC 20006
>>> *Office:* +1.202.533.2932  *Mobile:* +1.202.352.6367
>>>
>>>
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>>>
>>> From: <ws2-jurisdiction-bounces at icann.org> on behalf of "
>>> Jorge.Cancio at bakom.admin.ch" <Jorge.Cancio at bakom.admin.ch>
>>> Date: Wednesday, September 6, 2017 at 4:19 PM
>>> To: "ws2-jurisdiction at icann.org" <ws2-jurisdiction at icann.org>
>>> Subject: [EXTERNAL] [Ws2-jurisdiction] issues on applicable law
>>>
>>> Dear all,
>>>
>>>
>>>
>>> Here are, for your convenience, the two issues I have tried to briefly
>>> explain during today’s conference call, for your consideration.
>>>
>>>
>>>
>>> As said, the main thought is to reduce uncertainty, and clarify that the
>>> parties to the registry agreements have an effective freedom to choose the
>>> applicable law and to apply a principle of subsidiarity that may reduce
>>> potential conflicts with the national laws where they are based.
>>>
>>>
>>>
>>> ==
>>>
>>>
>>>
>>> 1.    *Issue: *The law applicable to the Registry Agreement has been
>>> identified as being the main issue:
>>>
>>>
>>>
>>> The Registry Agreement contains no provision relative to the choice of
>>> jurisdiction, the applicable law consequently not being defined by the
>>> Agreement.
>>>
>>> This creates great legal uncertainty and a potential issue as regards
>>> the jurisdiction given that it would be the prerogative of the arbitrators
>>> or the judges having jurisdiction -who could come from a US Court- to
>>> determine what law governs the relationship between ICANN and the registry.
>>>
>>> Pursuant to the current business practice, the applicable law is that of
>>> the party that provides the service in question, i.e. ICANN, a priori. A
>>> registry should therefore expect the potentially applicable law to be the
>>> law of the State of California.
>>>
>>> The applicable law further determines the faculty of ICANN to claim
>>> punitive or exemplary damages (i.e. under US law, damages highly surpassing
>>> the damage actually suffered, in order to punish a behavior), in the event
>>> the registry were to breach the contract in a deliberate and repeated
>>> manner (section 5.2 of the Registry Agreement.) This well-established
>>> institution of Common Law is non-existent under Swiss law, which follows
>>> the principle of compensation (damages are used to repair the damage but
>>> cannot enrich the claimant,) and should be considered to be contrary to
>>> public order. Were the Swiss law to apply to the Agreement, such damages
>>> would not be granted. Following the principles of the institutions typical
>>> to the Common Law provided for in the Registry Agreement poses issues of
>>> compatibility with other legal orders and suggests that Californian law
>>> would -a priori- apply to the Registry Agreement.
>>>
>>>
>>>
>>> *Possible solutions:*
>>>
>>>
>>>
>>> The applicable law should be determined on the basis of the legitimate
>>> expectations which the parties may have in terms of applicable law. It is
>>> understandable and appropriate that the fundamental provisions or duties
>>> contained in the Registry Agreement should apply equally to all registries
>>> around the world and be therefore interpreted in a uniform way.
>>>
>>>
>>>
>>> Beyond a few provisions and duties which are absolutely fundamental, it
>>> would be judicious and consistent with a legitimate expectation that the
>>> contractual relationship between ICANN and a registry be subject to the
>>> national law of the latter. The foregoing is all the more reasonable given
>>> that the manager of a generic domain (TLD) is delegated broad powers, as it
>>> is within its scope to establish the purpose of the domain, the
>>> eligibility, or the terms of the assignment of domain names, not to mention
>>> that it has great freedom as to the way in which a domain is actually
>>> managed.
>>>
>>>
>>>
>>> There already exist special provisions for registries that are
>>> IGO/Governmental entities (section 7.16 registry agreement): if
>>> international law is at stake, there is a procedure (mediation and
>>> arbitration ex 5.2.) to resolve disputes between the registry and ICANN –
>>> this special provision could be extended:
>>>
>>> -           To other registries that are not IGOs/Public authorities
>>>
>>> -           To cover not only “international law obligations” but also
>>> national law obligations
>>>
>>>
>>>
>>>
>>>
>>> 2.    *Issue: **arbitration clause*
>>>
>>>
>>>
>>> With regard to territorial jurisdiction, the arbitration clause (section
>>> 5.2 of the Registry Agreement entitled "Arbitration text for
>>> intergovernmental organizations or governmental entities") has allowed the
>>> ".swiss" registry to submit itself to the arbitration of the International
>>> Court of Arbitration of the International Chamber of Commerce in Geneva,
>>> Switzerland. This provision also provides for some flexibilities restricted
>>> to IGOs or governmental entities as regards the competent court.
>>>
>>>
>>>
>>> However these flexibilities are not open to all registry operators.
>>>
>>>
>>>
>>> *Possible solutions:*
>>>
>>>
>>>
>>> It would be wise in our opinion:
>>>
>>> - to also allow private registries to decide on the choice of their
>>> arbitration/competent court;
>>>
>>> - to broaden the possibilities of choice for all registries (by
>>> principle, to choose an arbitration recognized in each country.)
>>>
>>>
>>>
>>>
>>>
>>> ==
>>>
>>>
>>>
>>> Hope this may be considered.
>>>
>>>
>>>
>>> Regards
>>>
>>>
>>>
>>> Jorge
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> *Jorge Cancio *
>>>
>>>
>>>
>>> International Relations
>>>
>>> Federal Department of the Environment,
>>> Transport, Energy and Communications DETEC
>>>
>>> Federal Office of Communications OFCOM
>>>
>>> Zukunftstrasse 44, CH 2501 Biel
>>>
>>> Tel. +41 58 460 54 58 (direct)
>>>
>>> Tel. +41 32 327 55 11 (office)
>>>
>>> Fax +41 58 460 54 66
>>>
>>> mailto: jorge.cancio at bakom.admin.ch
>>>
>>> www.bakom.admin.ch
>>> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.bakom.admin.ch_&d=DwMFAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=WCjv7z0Nza1tNJQJiHnGUpHMklTqTn52IfIOcBKzBtw&s=3nEqt43-48p3-o5fgYdwVLwTOmyBSWh5nAGRz6Iegyo&e=>
>>>
>>>
>>>
>>> [image: cid:image001.png at 01D2F585.7A604270]
>>>
>>>
>>>
>>> Igf2017.swiss
>>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__igf2017.swiss_&d=DwMFAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=WCjv7z0Nza1tNJQJiHnGUpHMklTqTn52IfIOcBKzBtw&s=0es-R80LxKqpCDNcQ2Rk6O0ALSAJloNeMjjkepYX-Qk&e=>
>>>
>>> info at igf2017.swiss
>>>
>>>
>>>
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>>
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>
>
> --
> Raphaël Beauregard-Lacroix
> LinkedIn
> <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> -
> @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
>
>
>


-- 
Raphaël Beauregard-Lacroix
LinkedIn
<https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> -
@rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
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