[Ws2-jurisdiction] [EXTERNAL] issues on applicable law
Phil Corwin
psc at vlaw-dc.com
Mon Sep 11 20:52:11 UTC 2017
Well put -- especially " ambiguity and uncertainty are the enemy of accountability".
Philip S. Corwin, Founding Principal
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-----Original Message-----
From: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of Paul Rosenzweig
Sent: Monday, September 11, 2017 2:51 PM
To: 'Nigel Roberts'; ws2-jurisdiction at icann.org
Subject: Re: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law
All
This is a fascinating discussion at any number of levels.
I begin with the proposition that in general the parties to a contract are free to choose the manner and forum within which to resolve any disputes that might arise. They may choose arbitration or litigation. They may specify a venue and they may specify a choice of law. I have even seen cases in which they pre-specify the arbitrator by name. We might say that ICANN's choice not to choose (and the RAs agreement to that) is just the nature of contracts.
That, however, would be incomplete since, in this instance, ICANN operates as a monopoly (technically a monopsony, but that's not really relevant) and thus, RAs have essentially no negotiating power. We may infer from ICANNs choice that it views the current ambiguous state of affairs as to its benefit. But ambiguity and uncertainty are the enemy of accountability and thus, I support the idea, generally, of pushing ICANN to specify how and under what law disputes with it will be resolved.
That then leads us to the hard question -- which law? We cannot reasonably ask ICANN to assume potential liability under 190+ different legal systems for contractual disputes. And we cannot, from an accountability perspective, want a world in which there are inconsistent results and how a contract provision is enforced depends on whether the suit is brought in Europe or in Asia. That type of uncertainty is also the enemy of accountability. Thus, I disagree with the submission that the presumption should be that the law of the registry apply to the agreement. That way lies chaos.
But we also cannot expect, at least not in this forum, to agree on which law should apply. It strikes me that the reasonable compromise answer is for this subgroup and CCWG to recommend that ICANN develop a menu of options for choice of law and choice of arbiter. With a broad enough group (of say 4-6) we might minimize divergence while allowing registries some choice in how their contracts will be judged.
Paul
Paul Rosenzweig
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-----Original Message-----
From: ws2-jurisdiction-bounces at icann.org
[mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of Nigel Roberts
Sent: Monday, September 11, 2017 6:19 AM
To: ws2-jurisdiction at icann.org
Subject: Re: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law
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
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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 ____*
>
> *__ __*
>
> International Relations____
>
> Federal Department of the Environment,
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>
> Federal Office of Communications OFCOM____
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>
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>
> mailto: jorge.cancio at bakom.admin.ch
> <mailto:mailto:%20jorge.cancio at bakom.admin.ch>____
>
> www.bakom.admin.ch
>
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> --
> Raphaël Beauregard-Lacroix
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