[Ws2-jurisdiction] [EXTERNAL] issues on applicable law
Nigel Roberts
nigel at channelisles.net
Mon Sep 11 10:18:41 UTC 2017
I see no reason whatsoever to limit the forum. Admiralty/maritime cases
have a shopping list of jurisdictions that are well-versed in marine
cases which are (I think)
New York
London
Cairo
and maybe a couple of others.
And the parties can choose.
As ICANN is better placed to handle other fora, the other party should
have a free choice.
On 11/09/17 09:46, Raphaël BEAUREGARD-LACROIX wrote:
> Kavouss,
>
> I believe that was Becky was suggesting was an adaptation of applicable
> law according to pre-defined regions in the worldYou
>
> 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 <mailto: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 <mailto:kavouss.arasteh at gmail.com>
> *Gesendet: *Montag, 11. September 2017 07:12
> *An: *Burr, Becky <mailto:Becky.Burr at team.neustar>; ws2-jurisdiction
> <mailto: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 <mailto: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
> <mailto:ws2-jurisdiction-bounces at icann.org>> on behalf of
> "Jorge.Cancio at bakom.admin.ch
> <mailto:Jorge.Cancio at bakom.admin.ch>"
> <Jorge.Cancio at bakom.admin.ch <mailto:Jorge.Cancio at bakom.admin.ch>>
> Date: Wednesday, September 6, 2017 at 4:19 PM
> To: "ws2-jurisdiction at icann.org
> <mailto:ws2-jurisdiction at icann.org>" <ws2-jurisdiction at icann.org
> <mailto: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 ____*
>
> *__ __*
>
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