[Ws2-jurisdiction] [EXTERNAL] issues on applicable law
Mike Rodenbaugh
mike at rodenbaugh.com
Mon Sep 11 21:17:19 UTC 2017
Just noting that I represent a sizable number of ROs and registrars in
dealings with ICANN; but these views are my own, not my clients'. Agreed
it would be good to have perspective from other contracted parties or their
representatives.
Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087
http://rodenbaugh.com
On Mon, Sep 11, 2017 at 2:13 PM, Greg Shatan <gregshatanipc at gmail.com>
wrote:
> It would be really helpful if some of the* registrars and gTLD registry
> operators *in this group could provide their perspective on the issue of
> choice of governing law and venue in ICANN contracts! If need be, I will
> send the request to the CCWG Plenary and/or the RrSG and RySG, but it makes
> sense to start within the Subgroup. I look forward to responses.
>
> Greg
>
> On Mon, Sep 11, 2017 at 4:59 PM, Mike Rodenbaugh <mike at rodenbaugh.com>
> wrote:
>
>> Note that ICANN already has assumed potential contractual liability in --
>> at least -- every country of any Registry Operator, since no Registry
>> Agreement requires any forum for dispute, nor choice of law. So far, there
>> has been no chaos, and afaik only two lawsuits by Registry Operators (both
>> in the US - .Africa and Donuts).
>>
>> So, maybe it is best to leave it open in ICANN's contracts, allowing them
>> to be sued (at least) in both the US and/or the RO's country.
>>
>>
>> Mike Rodenbaugh
>> RODENBAUGH LAW
>> tel/fax: +1.415.738.8087 <(415)%20738-8087>
>> http://rodenbaugh.com
>>
>> On Mon, Sep 11, 2017 at 1:52 PM, Phil Corwin <psc at vlaw-dc.com> wrote:
>>
>>> Well put -- especially " ambiguity and uncertainty are the enemy of
>>> accountability".
>>>
>>> Philip S. Corwin, Founding Principal
>>> Virtualaw LLC
>>> 1155 F Street, NW
>>> <https://maps.google.com/?q=1155+F+Street,+NW+%0D+Suite+1050+%0D+Washington,+DC+20004&entry=gmail&source=g>
>>> Suite 1050
>>> Washington, DC 20004
>>> 202-559-8597/Direct
>>> 202-559-8750/Fax
>>> 202-255-6172/Cell
>>>
>>> Twitter: @VlawDC
>>>
>>> "Luck is the residue of design" -- Branch Rickey
>>>
>>>
>>> -----Original Message-----
>>> From: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounc
>>> es 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
>>> paul.rosenzweig at redbranchconsulting.com
>>> O: +1 (202) 547-0660
>>> M: +1 (202) 329-9650
>>> VOIP: +1 (202) 738-1739
>>> www.redbranchconsulting.com
>>> My PGP Key:
>>> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
>>>
>>> -----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
>>> > 1775 Pennsylvania Avenue NW DC 20006
>>> <https://maps.google.com/?q=1775+Pennsylvania+Avenue+NW+DC+20006&entry=gmail&source=g>
>>> > *Office:***+1.202.533.2932 *Mobile:***+1.202.352.6367____
>>> >
>>> >
>>> > *Follow Neustar:*LinkedIn*/* Twitter
>>> > Reduceyour environmental footprint. Print only if necessary.
>>> > ____
>>> >
>>> >
>>> ------------------------------------------------------------------------
>>> >
>>> > The information contained in this email message is intended
>>> only
>>> > for the use of the recipient(s) named above and may contain
>>> > confidential and/or privileged information. If you are not the
>>> > intended recipient you have received this email message in
>>> error
>>> > and any review, dissemination, distribution, or copying of this
>>> > message is strictly prohibited. If you have received this
>>> > communication in error, please notify us immediately and delete
>>> > the original message.____
>>> >
>>> >
>>> > 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.adm
>>> in.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,
>>> > Transport, Energy and Communications DETEC ____
>>> >
>>> > Federal Office of Communications OFCOM____
>>> >
>>> > Zukunftstrasse 44, CH
>>> <https://maps.google.com/?q=Zukunftstrasse+44,+CH&entry=gmail&source=g>
>>> 2501 Biel ____
>>> >
>>> > Tel. +41 58 460 54 58 <+41%2058%20460%2054%2058> (direct) ____
>>> >
>>> > Tel. +41 32 327 55 11 <+41%2032%20327%2055%2011> (office) ____
>>> >
>>> > Fax +41 58 460 54 66 <+41%2058%20460%2054%2066> ____
>>> >
>>> > mailto: jorge.cancio at bakom.admin.ch
>>> > <mailto:mailto:%20jorge.cancio at bakom.admin.ch>____
>>> >
>>> > www.bakom.admin.ch
>>> >
>>> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.bak
>>> om.admin.ch_&d=D
>>> wMFAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmr
>>> xdYahOP8WDDkMr4k
>>> &m=WCjv7z0Nza1tNJQJiHnGUpHMklTqTn52IfIOcBKzBtw&s=3nEqt43-48p
>>> 3-o5fgYdwVLwTOmy
>>> BSWh5nAGRz6Iegyo&e=
>>> <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=>
>>> >____
>>> >
>>> > __ __
>>> >
>>> > cid:image001.png at 01D2F585.7A604270____
>>> >
>>> > __ __
>>> >
>>> > Igf2017.swiss
>>> >
>>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__igf201
>>> 7.swiss_&d=DwMFA
>>> g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYa
>>> hOP8WDDkMr4k&m=W
>>> Cjv7z0Nza1tNJQJiHnGUpHMklTqTn52IfIOcBKzBtw&s=0es-R80LxKqpCDN
>>> cQ2Rk6O0ALSAJloN
>>> eMjjkepYX-Qk&e=
>>> <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 <mailto:info at igf2017.swiss>____
>>> >
>>> > __ __
>>> >
>>> >
>>> > _______________________________________________
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>>> >
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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
>>> >
>>> >
>>> >
>>> >
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>>
>>
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