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

Tue Sep 19 06:48:11 UTC 2017

Dear Raphaël and all,

Thanks for kick-starting this drafting exercise! I have taken the liberty of redrafting and adding some wording to the Google Docs, using the “suggesting mode”. See attached the resulting Word for those with no access to Google Docs.

The main change is to consider the “menu approach” (your option 1) as the potential recommended course of action, which would increase the freedom of choice and the flexibilities for registries. Your options 2 and 3 would be just possible outcomes and/or solutions that would depend on how the corresponding registry (and ICANN) agree to exercise that freedom of choice.

Hope these changes may be acceptable to you and all – at least as a start for further discussion.

Kind regards

Jorge

Von: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounces at icann.org] Im Auftrag von Raphaël BEAUREGARD-LACROIX
Gesendet: Sonntag, 17. September 2017 21:48
An: Mueller, Milton L <milton at gatech.edu>
Cc: ws2-jurisdiction at icann.org
Betreff: Re: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law

Dear all,

I apologise in advance for not being able to make it to tomorrow's call since I will be held at work until late evening CET.

While there will probably be more discussions of this topic tomorrow, I have prepared a skeleton draft recommendation as a google doc so that we can start working towards our final objective, since it does seem at this point that there is a form of consensus emerging on both the fact that this is an issue and over solutions.

https://docs.google.com/document/d/1xAyla8FTaL7jZ0D2rYtAzQUr3gEnirTKiAG-kqD0ZSs/edit?usp=sharing

To be very honest I do not know of the formal or even substantive requirements for recommendations, so I just took some ideas from the OFAC one.

I guess at this point is just for everyone to jump in and contribute, as this is far from complete (and maybe even accurate.) I will myself be adding more materials from our discussions into this during the coming week.

I remember Greg you said you would prepare some form of wrap-up/forward looking document, in any case (and especially if yours is more fleshed out) feel free to incorporate whatever can be incorporated from this one into yours so that we work in a single document.

Best,

Raphael

2017-09-14 17:37 GMT+02:00 Mueller, Milton L <milton at gatech.edu<mailto:milton at gatech.edu>>:
As long as registries have the choice, a regional "menu" approach seems ok to me.

> -----Original Message-----
> From: Paul Rosenzweig [mailto:paul.rosenzweig at redbranchconsulting.com<mailto:paul.rosenzweig at redbranchconsulting.com>]
> Sent: Wednesday, September 13, 2017 11:25 AM
> To: Mueller, Milton L <milton at gatech.edu<mailto:milton at gatech.edu>>; ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>
> Subject: RE: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law
>
> We can't avoid inconsistency altogether if there is more than one jurisdiction
> involved.  Almost by definition, with more than one jurisdiction available the
> risk of inconsistency and uncertainty is heightened.
>
> At the other end of the spectrum is a world with 190+ jurisdictions.  In that
> context the risk of inconsistency is at its maximum.
>
> I personally have no concerns about the use of California law exclusively.
> Others in the community, however, do have those concerns.  A menu option
> with a few regional choices seems to answer those concerns without a huge
> increase in the risk of inconsistency -- especially if it is accompanied by an
> urge toward uniformity in areas where uniformity is most essential (like
> operational issues).
>
> It is an imperfect solution -- offered in the spirit of compromise, not as a
> canonically correct exposition of principle.
>
> Paul
>
> Paul Rosenzweig
> paul.rosenzweig at redbranchconsulting.com<mailto:paul.rosenzweig at redbranchconsulting.com>
> O: +1 (202) 547-0660
> M: +1 (202) 329-9650
> VOIP: +1 (202) 738-1739
> www.redbranchconsulting.com<http://www.redbranchconsulting.com>
> My PGP Key:
> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA06
> 6684
>
> -----Original Message-----
> From: Mueller, Milton L [mailto:milton at gatech.edu<mailto:milton at gatech.edu>]
> Sent: Wednesday, September 13, 2017 10:22 AM
> To: Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com<mailto:paul.rosenzweig at redbranchconsulting.com>>;
> ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>
> Subject: RE: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law
>
> Very interesting post Paul. But, are you agreeing or disagreeing with the
> "menu" being based on regions? If you are agreeing, then how do we avoid
> this problem:
>
> > 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.
> >

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