August 2017 - Ws2-jurisdiction

ISSUE - absence of choice of law clause in registry agreements
by Raphaël BEAUREGARD-LACROIX Oct. 4, 2017

Oct. 4, 2017

Dear all, I would like to officially submit this issue to the attention of our subgroup. I attach here -the case in which I raised this as an issue -the question we formulated to ICANN legal -the response we got from ICANN legal. -the follow up -the response to the follow up I can also refer you all to an email from Bernie dated 26 July which contains links to these. and for reference purposes -The standard registry agreement (RA) I did not find ICANN legal's answer to be fully satisfying, especially regarding registries, and I would thus like this issue to be included in the final report, with a solution that we will hopefully all agree to! Because of the nature of the dispute resolution clause in RAA's concluded with registrars, I think they should be treated as a separate issue, if at all. At any rate, this submission is already long enough as it is! *Issue* ICANN's standardised contracts with registries do not include a choice of law provisions and are subject to dispute resolution by arbitration under ICC rules. See RA, art. 5.2 As for RAA's concluded with registrars, they can be litigated in court or in arbitration under American Arbitration Association rules. For the simple reason that they can be litigated in court, this makes this issue less of an issue for them. For RA litigation, the above clause means that in effect, the arbitrators are free to decide the applicable law according to various factors or methods generally accepted in private international law practice. See ICC Rules of Arbitration art. 21: *1)* *The parties shall be free to agree upon the rules of law to be applied by the arbitral tribunal to the merits of the dispute. In the absence of any such agreement, the arbitral tribunal shall apply the rules of law which it determines to be appropriate.* *2)* *The arbitral tribunal shall take account of the provisions of the contract, if any, between the parties and of any relevant trade usages.* This also means that we cannot rely on Californian private international law to predict which law is applicable. Moreover, as far as my understanding of commercial arbitration goes, arbitrators would always decide on a single law for the whole of the contract and will not start carving up legal niches here and there. Reasonably, there are two options as for the applicable law to these contracts: California law, or the law applicable to the registry, whether it be the law of its main place of business or its own company law. I would like to quote here ICANN legal's answer to our follow-up: *"Historically, not having a choice of law clause seems to have worked out well in practice. * *The lack of a choice of law clause, as far as ICANN is aware, has not presented big **problems for either ICANN or contracted parties. * *The plain language of the agreement has generally been sufficient to resolve questions between the parties and allow the parties **to interpret the performance requirements, their rights and obligations in the ordinary course.* *Reliance on the plain language of the agreements normally does not depend on a choice of which jurisdiction’s laws would apply. * *As to why the contracts have evolved in this manner, it has essentially been a compromise that allows the choice of law issue to be handled on an issue-specific basis that takes into account the specific conduct being reviewed, the needs **of the parties and ICANN’s global coordination function"* I fail to see how the RA would satisfy registries outside of the US. Would not they prefer to have a set choice of law rather than an undefined one? And not there being a problem does not mean it cannot be improved. Registries can very well refuse to litigate because of the costs, and this will look like an absence of problem from ICANN's perspective. Moreover, I plainly reject the contention that *"The plain language of the agreement *(allows)* the parties to interpret the performance requirements, their rights and obligations in the ordinary course."* The only time this can be true is between US parties. This is just wrong for parties outside the US. We can all see that these contracts are drafted with US law in mind. I do not even want to imagine what kind of mess would result of trying to fit this contract into any continental European legal system! Or any other legal system for that matter. And even more so if you try to divide obligations between the parties and ascribe them a different governing law... The issue I see with this is that this situation 1) is detrimental to ICANN's accountability and 2) results in more costs for registries in case of dispute. As for 1), I believe it is detrimental because being accountable is also being predictable. ICANN has the means to figure out these legal questions well in advance and do a proper risk assessment, while registries and registrars (especially considering the small players) might not. As for 2), an undetermined choice of law means you need to hire a lawyer (and not just your ordinary lawyer, a specialised one) to do first and foremost an assessment of which law would be applicable and which is most likely to be applied by the arbitrator(s). This means more money (maybe too much money) gone into legal fees for the small businesses. *Solution* Set the choice of law in those contracts. Given their drafting style, California would make most sense. Now to jump the gun on some criticism that I can see coming, I do believe that most if not all lawyers who can handle domain name industry/ICANN disputes do know California law anyway. This is for the sake of predictability, not for the sake of favouring the US above anyone else. I went well beyond the "12 standard lines" rule, but I do hope I made it clear and understandable. Best,

10 16

ISSUE: Positive Effect of CA Law on ICANN Operation and Accountability Mechanisms since Transition
by Brian Scarpelli Sept. 10, 2017

Sept. 10, 2017

(with apologies for sending this to an incorrect email the first time just before the deadline of 12p UTC) WS2 Jurisdiction Subgroup colleagues - my issue contribution is below. I have also entered this into the WS2 Jurisdiction issue spreadsheet (https://docs.google.com/spreadsheets/d/1zAMj3Oz8TEqbjauOyqt09Ef-1ada9TrC7i6…) Best regards, Brian Scarpelli Senior Policy Counsel 517-507-1446<tel:517-507-1446> | bscarpelli(a)actonline.org<mailto:bscarpelli@actonline.org> ACT | The App Association ________________________________ TITLE: Positive effect of California not-for-profit incorporation and headquarters location on ICANN accountability mechanisms and operations. ISSUE: It is within the remit of Work Stream 2's Jurisdiction Subgroup to build on Work Stream 1, to consider the effect of ICANN's current jurisdictional set-up (in particular, California not-for-profit law) on ICANN operation and accountability mechanisms and to find ways to enhance ICANN's accountability to the multistakeholder community. Work Stream 2's Jurisdiction Subgroup has discussed of a wide range of issues (some within the remit of the Subgroup, and others outside), and a number of subgroup members have brought forward scenarios in which jurisdiction(s) may affect ICANN, both positively and negatively. This discussion has been fruitful not only in exploring edge use cases, but more importantly in addressing whether and how the existing legal status of ICANN as a California nonprofit public benefit corporation assists ICANN in operating in an accountable manner. The mechanisms developed in Work Stream 1 are based on ICANN's status as nonprofit public benefit corporation incorporated in California and subject to US and California state laws. These mechanisms take advantage of specific features of California law, such as the Sole Designator concept. Work Stream 1 also recognized that a key existing accountability mechanism was the fact that ICANN is subject to U.S. federal and laws and state and federal court jurisdiction. Furthermore, ICANN is set up as and operates in the manner of a California non-profit and has done so for nearly 20 years. In the absence of NTIA's stewardship role over the management of the DNS, maintaining these new and existing accountability mechanisms, and ICANN's stability, is of paramount importance. Changing ICANN's jurisdiction would undermine these new and existing accountability mechanisms, the ability of ICANN to operate in an accountable manner, and ultimately ICANN's stability. Even the ongoing debate over ICANN's headquarters location and place of incorporation has the effect of bringing ICANN's accountability mechanisms into question. At the very least, this debate has the effect of using up significant multistakeholder resources better applied to refining the work of Work Stream and ICANN's overall accountability. PROPOSED SOLUTION: The Jurisdiction Subgroup should explicitly affirm in its recommendations that: * ICANN's current jurisdiction (i.e., California as the state of incorporation and headquarters location) is a critical and integral part of ICANN's system of accountability and its operations. * Subjecting ICANN to the laws of and jurisdiction of courts in the United States and elsewhere (including but not limited those jurisdictions where ICANN has operations) are fundamental and very important accountability mechanisms, which allow third parties to hold ICANN accountable and ensure that ICANN abides by the rule of law. * The accountability mechanisms of Work Stream 1 use and depend on maintaining ICANN as a corporation headquartered and incorporated in California. * Therefore, modifications to the core jurisdictional concepts of ICANN would be detrimental to ICANN's accountability. In particular, the CCWG's work in Work Stream requires Work Stream 2 to maintain the current jurisdictional concepts so that the new mechanisms can be fully implemented and operate unhindered for a substantial period of time. As such, Work Stream 2 should confirm and ratify that the current jurisdictional make-up of ICANN is a fundamental part of ICANN's accountability mechanisms.

8 13

Agenda and Master List of Proposed Issues for Upcoming Jurisdiction Subgroup Meeting at 13:00 UTC 30 August 2017
by Greg Shatan Sept. 4, 2017

Sept. 4, 2017

All: I have attached the agenda and the master list of proposed issues, collated from all of the recent submissions on the list and in the Google Doc. As a first order of business, we need to confirm that all submissions have been found and added to this list. Please review this before the meeting if possible. Thanks! I look forward to our upcoming meeting. Greg

3 4

Re: [Ws2-jurisdiction] Agenda and Master List of Proposed Issues for Upcoming Jurisdiction Subgroup Meeting at 13:00 UTC 30 August 2017
by Jorge.Cancio＠bakom.admin.ch Sept. 3, 2017

Sept. 3, 2017

Dear Greg, Apologies for missing the meeting, but it conflicts with a prior commitment. As to the issues collated, I have the following comments I would like you to consider: 1) I cannot identify where exactly our submitted issues nr. 2 and 6 are included, which dealt respectively about arbitration clauses, and venue for resolving conflicts. Could you please clarify? 2) Our submitted issue nr. 3 deals not with "community applications" in the specific meaning of the AGB, but generally with TLDs that serve a community. 3) Our submitted issues contained proposed solutions. Where are these solutions listed? Linking to the respective original submissions would be helpful. Thanks and regards Jorge ________________________________ Von: Greg Shatan <gregshatanipc(a)gmail.com> Datum: 30. August 2017 um 06:10:16 MESZ An: ws2-jurisdiction <ws2-jurisdiction(a)icann.org> Betreff: [Ws2-jurisdiction] Agenda and Master List of Proposed Issues for Upcoming Jurisdiction Subgroup Meeting at 13:00 UTC 30 August 2017 All: I have attached the agenda and the master list of proposed issues, collated from all of the recent submissions on the list and in the Google Doc. As a first order of business, we need to confirm that all submissions have been found and added to this list. Please review this before the meeting if possible. Thanks! I look forward to our upcoming meeting. Greg

2 1

Issue: Domain seizures by US executive agencies like US customs
by parminder Aug. 31, 2017

Aug. 31, 2017

Issue: US customs have routinely seized domain names belonging to foreign entities, whose owners in their view violate US law. This has mainly been done for alleged violation of intellectual property law, but could have been done for other laws as well, and certainly can be so done in the future. Till now all cases were such as having second level domain names with US based registries, most often Verisign, which runs the .com registry. Therefore US Custom have forced the agency that could help them seize domain names, ie the concerned US based registry". It is obvious that if the "violating" foriegn entity were to own a gTLD -- which is increasingly likely with the great onrush on gTLDs -- US Custom will force ICANN as the "registry" of gTLDs in the same way they earlier acted on US based registries. In the eyes od a US executive agency, there is no legal difference in this regard, for enforcement assistance purpose, between a US based business and a US based non profit like ICANN. Further, it is not just the actual seizure that is the problem. Law exist much more in observance than defiance, and thus visible punishment ensuing from it. Global companies that take on gTLDs, as many are expected to, will experience the "chilling effect <https://en.wikipedia.org/wiki/Chilling_effect>", whereby they already begin to subject their actions to US laws fearing US enforcement powers exercised thorugh the gTLD route. Thereby the global DNS becomes an illegitimate and undemocratic way of extending US law globally. Solution: I do not think any specific exceptions to any organisation or class of actions is even theoritically available under the laws under which US custom makes these seizures. In the circumstances, the only solution is a general immunity under the US International Organisations Immunities Act, with proper customisation and exceptions for ICANN to enable to be able to perform its organisational activities from within the US. The chief exception I understand would be the application of California non profit law.

9 15

Issue: US's courts' judicial writ over all aspects of ICANN
by parminder Aug. 30, 2017

Aug. 30, 2017

Issue As a US based entity, ICANN is subject to full range of US laws. Almost any US court can take up for its judicial consideration whether ICANN works within each of such applicable law or not. This brings up a high likelihood that any time in the future ICANN will have to change under US courts' directions its actions taken in pursuance of its global governance function of developing global DNS related policies and implementing them. This is obviously undemocratic and inappropriate that one country's law and its court decide what a global governance body like ICANN will or will not do. Further, it is not only a matter of a court actually finding legal fault with an ICANN action and forcing to change it. Knowing that ICANN is subject to the full range of US public law, ICANN would always take care to keep its actions with them (as it has no doubt done till now). This is what is called as the "chilling effect <https://en.wikipedia.org/wiki/Chilling_effect>". This phenomenon which is already in existence with ICANN's actions, since its inception, is undemocratic and illegitimate from the point of view of the non US people, since they did not participate in making the US laws, and the laws they may have actually developed may even be in contradiction to US law on a particular subject. This phenomenon therefore leads to denial of democratic rights to non US citizens. Solution: Any given court would not heed to any pleadings about ICANN being special as a global governance organisation, and should be treated as such. Neither is the court legally supposed to do, under the US constitution and laws. The only solution there is a general immunity under the US International Organisations Immunities Act, with proper customisation and exceptions for ICANN to enable to be able to perform its organisational activities from within the US. The chief exception I understand would be the application of California non profit law.

6 12

Additional Document for upcoming meeting
by Greg Shatan Aug. 30, 2017

Aug. 30, 2017

All, As mentioned on the Plenary Call, the attached first draft recommendation regarding OFAC, assembled from the input of various participants, will be reviewed on the Subgroup call. The Agenda will be amended accordingly. I look forward to comments from the Subgroup. Greg

4 5

Issue: US legislature's unlimited power over ICANN
by parminder Aug. 28, 2017

Aug. 28, 2017

Issue: US legislature has near unlimited power over any US based organisation, especially when it can see as carrying out an important public function. It is entirely possible in the future for US legislature to make new laws which specifically target ICANN and its functions, or may generally target them under a class of organisations or functions. This can completely throw out of gear ICANN's global governance function and its primary accountability to the global community. Solution: Evidently, there can be no other solution for this issue than to grant ICANN one time general immunity under the US International Organisations Immunities Act, with proper customisation and exceptions for ICANN to enable to be able to perform its organisational activities from within the US. The chief exception I understand would be the application of California non profit law.

2 1

[Common denominator] ISSUE: Jurisdiction over ccTLDs
by Thiago Braz Jardim Oliveira Aug. 28, 2017

Aug. 28, 2017

Dear Nigel, Dear All, Thank you very much for your reply. I appreciate that you actually understand and acknowledge the unsatisfactory situation that ICANN's subjection to US enforcement jurisdiction put us in. In terms of US jurisdiction over ccTLDs, others and you and I seem to agree that US organs can possibly interfere with ICANN's ccTLD management, regardless of whether that has already happened, and that this puts in peril ICANN's accountability towards all stakeholders, in their respective roles, on an equal footing. I acknowledge your concern that we should be careful not to leave ICANN free from liability as we recommend that ICANN obtain immunity from US jurisdiction in respect of ICANN's ccTLD management. To ensure that this does not happen, I believe we all concur that ICANN's own accountability mechanisms should be in place and functioning and satisfy the expectations of all stakeholders. In view of the above, and also based on the most valid point made by Bernard Turcotte in our online meeting of yesterday (#43), which I detail below, I am confident we can agree on some mutually acceptable language addressing the issue we've been discussing in this email thread. In our online meeting of yesterday (#43), Bernard appropriately noted, with general support from the participants, that in making our recommendation, "we should be looking at what are the outcomes we're looking for and less trying to be very specific about how to implement it." For practically mandatory reasons, and I invite you to read Bernard's brilliantly reasoned explanation in the transcript, as we recommend that ICANN reach such objectives as of obtaining immunity, "it's fine to ask ICANN to study this and come back with some concrete facts and estimates and then the community can decide that”. Accordingly, despite the disagreements that there might be, to use Nigel's words, on "how to design immunity in a way that does not immunise ICANN from liability for arbitrary or unlawful actions" in respect of ICANN's ccTLD management, we have already reached the point where we can recommend ICANN to (i) seek immunity from US jurisdiction in respect of ICANN's ccTLD activities, so that ICANN could neither be made defendant in domestic court proceedings that aim, for example, to force ICANN to re-delegate a ccTLD, nor be subject of enforcement measures by domestic agencies that interferes with ICANN's ccTLD management; and (ii) maintain and further develop its own accountability mechanisms, through the appropriate bottom-up multi-stakeholder policy development process, to ensure that ICANN can be held liable for its ccTLD management activities. The above proposal is practical and should reflect the constructive input we have received so far on the issue, to an extent agreeable to the different stakeholders. The approach that has led us to it, and I thank Bernard Turcotte for proving its necessity, should also lead us to positive results with respect to the other issues. [For the transcript of meeting #43 where Bernard's point was made, see: https://community.icann.org/download/attachments/69272141/CCWG-WS2%20JURISD… ; for useful exchanges within this email thread, please see: http://mm.icann.org/pipermail/ws2-jurisdiction/2017-August/001469.html ; and http://mm.icann.org/pipermail/ws2-jurisdiction/2017-August/001471.html ; and http://mm.icann.org/pipermail/ws2-jurisdiction/2017-August/001441.html ] I look forward to your reaction to the above, which I trust will be positive. Best regards, Thiago ________________________________________ De: Nigel Roberts [nigel(a)channelisles.net] Enviado: quarta-feira, 23 de agosto de 2017 12:44 Para: Thiago Braz Jardim Oliveira; farzaneh badii Cc: ws2-jurisdiction Assunto: Re: RES: [Ws2-jurisdiction] ISSUE: In rem Jurisdiction over ccTLDs Thiago Framing this teleologically as you have done below, goes a long way to advancing your argument while mitigating the knee-jerk reaction that I and others, invariably have to any suggestion that ICANN staff and board might receive immunity for their actions. It's a reasonable argument to put forward. It would not, in fact, have been necessary had ICANN been incorporated in Switzerland or some other aggressively neutral place, as I argued for long ao. But it is where it is. The concern that US organs can possibly interfere with ICANN's ccTLD management is reasonable. But so is the concern that ICANN itself can interfere in the management of ccTLDs. The former, whilst a valid concern has not happened. The latter has. How do you design immunity in a way that does not immunise ICANN from liability for arbitrary or unlawful actions? On 23/08/17 15:39, Thiago Braz Jardim Oliveira wrote: > Dear Farzaneh, > Dear All, > > Thank you very much for your reply. I will try to clarify the proposal I > submitted a bit further, which may help us better frame the discussion > from my point of view. > > The proposal, as I see it, is not to obtain 'property' immunity for > ccTLDs, or immunity from seizure or attachment. As you rightly > suggested, if we were getting into that, we would perhaps also get into > discussions about the status of ccTLDs, whether they are an expression > of 'sovereign' rights or not, etc. But we don't need to. > > Instead, the proposal is that ICANN (not the ccTLD manager) obtains > jurisdictional immunity in respect of ICANN's activities relating to the > management of ccTLDs. The effect is that ICANN could not be made > defendant in domestic court proceedings that aim, for example, to force > ICANN to re-delegate a ccTLD. This is on the understanding that no > single country is entitled to exercise jurisdiction over ICANN in ways > that interfere with ICANN's management of other countries' ccTLDs. I > hope I have provided the rationale for this understanding in the e-mail > where I described the issue and proposed solutions. > > As to the apparent controversy about whether ccTLDs are property, again, > strictly we may not need to get into that. My point relating to 'in rem > jurisdiction' was therefore perhaps unnecessary, but the idea was to > point to an existing practice in the US where domestic courts (and > enforcement agencies) have found to have authority to interfere with > domain names (and arguably ccTLDs) based on the 'location' of the > 'domain name authority', as is ICANN, in the US. (I had previously > touched on these points > here: http://mm.icann.org/pipermail/ws2-jurisdiction/2017-May/001003.html) > > Perhaps this was unnecessary. The main point is instead this: currently, > it has been open to the organs of the single country with exclusive > authority to enforce jurisdiction in respect of ICANN's ccTLD management > activities (US exclusive territorial jurisdiction) the possibility of > deciding that they will, or that they will not, interfere with such > ICANN's activities. And regardless of the reason they invoke to legally > justify their interference, however justifiable it may be from a > domestic law point of view (because, say, ccTLDs are property or they > have 'in rem jurisdiction'), the point is that it should not up to the > organs of any country to chose and decide on the reasons to interfere, > and then interfere, with ICANN's management of other countries' ccTLDs. > > It is because US organs can possibly interfere with ICANN's ccTLD > management, as an expression of US exclusive enforcement jurisdiction > over things or activities performed in US territory, that it is > necessary to recommend that ICANN obtains immunity in respect of its > ccTLD management activities. Any measure that clearly rules out that > possibility, in turn, for it to meet ICANN's accountability goals > towards all stakeholders, should not be left to unilateral decisions of > the organs of one State, or to the vagaries of US jurisprudence, however > uniform and constant it might be. > > Best regards, > > Thiago > > > > ------------------------------------------------------------------------ > *De:* ws2-jurisdiction-bounces(a)icann.org > [ws2-jurisdiction-bounces(a)icann.org] em nome de farzaneh badii > [farzaneh.badii(a)gmail.com] > *Enviado:* quarta-feira, 23 de agosto de 2017 9:07 > *Para:* Nigel Roberts > *Cc:* ws2-jurisdiction > *Assunto:* Re: [Ws2-jurisdiction] ISSUE: In rem Jurisdiction over ccTLDs > > In the .IR case, the court did not decide on whether ccTLD is a property > or not. Anyhow, I do not think we should go into that discussion. I > think the important thing to find out is whether the court case in .IR > is precedential. > > I don't think the second part of your solution would work Thiago, if > jurisdictional immunity is not granted to ccTLDs ( I don't know how we > can get such jurisdictional immunity and don't forget that some ccTLD > managers are totally private and not government run). > > The below might not be enforceable: > > "ICANN Bylaws an exclusive choice of forum provision, whereby disputes > relating to the management of any given ccTLD by ICANN shall be settled > exclusively in the courts of the country to which the ccTLD in question > refer." > > First of all not many ccTLDs have contracts with ICANN. Secondly, in > third party claims or disputes, for example in case of initiating > attachment of a ccTLD as an enforcement of a monetary compensation, this > clause might be challenged and might very well be ineffective. > > > > Farzaneh > > On Wed, Aug 23, 2017 at 7:05 AM, Nigel Roberts <nigel(a)channelisles.net > <mailto:nigel@channelisles.net>> wrote: > > You can make such assertions all you like, but it doesn't make it > necessarily so. > > The best I can offer by way of certainty in the matter is "we don't > really know, but we can take some guesses". > > The difference between the DNS and spectrum is that spectrum exists > per se. The DNS only exists becuase it was designed and constructed. > > I could start a different DNS tomorrow. It would not get wide use, > but it would not differ in any way from the existing DNS. > > Furthermore possible new technologies can outdate the current DNS > (I'm thinking of blockchain) just like SMTP outdated and made X.400 > useless. > > > > > On 23/08/17 11:52, Arasteh wrote: > > Dear All > ccTLD at any level shall not be considered as property or > attachment at all. > gTLD including ccTLD are resources like orbital /spectrum which > are not at possession of any entity but could be used under > certains rules and procedure established for such use > Any action by any court to consider it as attachment is illegal > and illegitimate as DNS shall not be used as a political vector > or means against any people covered under that DNS. > Being located in a particular country does I no way grant / > provide any legal or administrative or judicial right to that > country . DNS is a universal resources belong to the public for > use under certains rules and procedure and shall in no way be > used asa vehicle for political purposes. > We need to address this issue very closely and separate > political motivation from technical use. > Regards > Kavouss > Sent from my iPhone > > On 23 Aug 2017, at 08:52, <Jorge.Cancio(a)bakom.admin.ch > <mailto:Jorge.Cancio@bakom.admin.ch>> > <Jorge.Cancio(a)bakom.admin.ch > <mailto:Jorge.Cancio@bakom.admin.ch>> wrote: > > Dear all, > > please excuse my ignorance, but have domain names not be > seized as "assets" or "property" in the US under the > application of domestic law? > > Wikipedia info is here: > https://en.wikipedia.org/wiki/Operation_In_Our_Sites > <https://en.wikipedia.org/wiki/Operation_In_Our_Sites> > > If a second level domain is subject to potential seizure, > why not a TLD? > > Regards > > Jorge > > -----Ursprüngliche Nachricht----- > Von: ws2-jurisdiction-bounces(a)icann.org > <mailto:ws2-jurisdiction-bounces@icann.org> > [mailto:ws2-jurisdiction-bounces@icann.org > <mailto:ws2-jurisdiction-bounces@icann.org>] Im Auftrag von > Nigel Roberts > Gesendet: Mittwoch, 23. August 2017 08:44 > An: ws2-jurisdiction(a)icann.org > <mailto:ws2-jurisdiction@icann.org> > Betreff: Re: [Ws2-jurisdiction] ISSUE: In rem Jurisdiction > over ccTLDs > > Milto > > There is no authority at all for this Claim, in law, as I > suspect you know. > > As I suspect you also know very well, the nearest evidence > that might support such a Claim is that one of the > contentions in /Weinstein/ was that a ccTLD (three of them, > if I remember correctly) could be garnished under the "state > law" of DC. (I know technically, DC is not a state of the > Union, but I don't know the US correct term-of-art for > 'state or capital region') > > Unfortunately or fortunately (depending on one's point of > view) it was not necessary for the Court to decide on this > claim by the Judgment Debtor. This means that the idea that > US courts might either have either or both of :- > > (a) legal jurisdiction over the ownership of the rights > represented by a ccTLD delegation > > (b) the desire to exercise such (lack of desire to address a > particular contention usually leads judges in common-law > systems to be able conveniently to find a creative ratio > that finds other reasons that the case can be decided > > remains a completely open question. > > It seems to me that additional hints for future litigants > (as you know, common-law judges do that too) appear to have > been given in the Weinstein judgment as to whether the > rights in law enjoyed by a ccTLD manager (whatever they > might be) MIGHT constitute property or not, but this remarks > don't even amount to /obiter dictum/ - they are just hints > at a possible road of future judicial travel and any court > seised of a future Claim is entirely free to ignore them. > > And, even so, those hints don't address the question of /in > rem/ at all. > > > As you can see, I (along with some others in the ccTLD > community) havefollowed, and analysed this case carefully > and in some detail. > > We are aware of no other possible legal authority that > addresses whether ccTLDs are property (let alone whether > that property, if it is property, is subject to /in rem/ > jurisidiction). > > Unless others have additional information? > > > > > Nigel Roberts > > PS: I would also commend others to read Farzaneh and > Milton's ccTLD paper. > > > On 22/08/17 22:31, Mueller, Milton L wrote: > > > > > Issue 3: In rem Jurisdiction over ccTLDs > > > > Description: US courts have in rem jurisdiction over > domain names as a > result of ICANN's place of incorporation > > > > What is the evidence for this claim? > > --MM > > > > _______________________________________________ > Ws2-jurisdiction mailing list > Ws2-jurisdiction(a)icann.org > <mailto:Ws2-jurisdiction@icann.org> > https://mm.icann.org/mailman/listinfo/ws2-jurisdiction > <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction> > > _______________________________________________ > Ws2-jurisdiction mailing list > Ws2-jurisdiction(a)icann.org <mailto:Ws2-jurisdiction@icann.org> > https://mm.icann.org/mailman/listinfo/ws2-jurisdiction > <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction> > _______________________________________________ > Ws2-jurisdiction mailing list > Ws2-jurisdiction(a)icann.org <mailto:Ws2-jurisdiction@icann.org> > https://mm.icann.org/mailman/listinfo/ws2-jurisdiction > <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction> > > > _______________________________________________ > Ws2-jurisdiction mailing list > Ws2-jurisdiction(a)icann.org <mailto:Ws2-jurisdiction@icann.org> > https://mm.icann.org/mailman/listinfo/ws2-jurisdiction > <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction> > >

4 5

Issue: US executive and regulatory powers over ICANN
by parminder Aug. 28, 2017

Aug. 28, 2017

Issue: Within the wide "class of functions" etc related powers to various US executive and regulatory agencies, they can weigh upon ICANN, as a US based organisation fully subject to US jurisdiction", to act or not act in a particular way, which it takes to be in furtherance of the public interest that they have been mandated to uphold. The regulatory agency which directly relates to ICANN's core functions is the Federal Communications Commission or FCC which has within its express mandate to manage the numbering issue in the telcom sector. As per current interpretation of law, Internet in the US is considered as a telecom service, and therefore names and numbering for the Internet comes under FCC's remit. Currently, FCC has "forborne" its remit on Internet's names and numbering system. The very meaning of such forbearance is to accept its possible jurisdiction but not exercise it at a particular point or under particular circumstances. FCC has earlier forborne its title 2 regulatory powers over the Internet but chose to assert them last year with their "net neutrality" ruling. A similar thing can be done with respect to Internet's names and numbering system, if ICANN thinks that it needs to act to uphold US public interest. No such powers of interventions are available to corresponding regulators of other countries. Such unilateral jurisdiction of FCC over ICANN therefore is illegitimate and undemocratic from a global point of view. FCC is the US regulatory agency most directly concerned with ICANN functions. However, the work of ICANN connects to almost all sectors, many of which have dedicated regulatory agencies in the US. FDA for instance may want to force its will on exclusion-inclusion or other principles that .pharma or .health may lay. So may the transport regulator with .cars, and .auto, or whatever. There is no end to such possibilities. Regulatory is one class of more specialised executive action, but many other executive agencies, right down from the office of the President of the USA itself, have various kinds of powers over all US organisations, including the ICANN. This is problematic in the same way as other executive/ regulatory powers that we have discussed. Solution: It is not possible to make a list of all executive/ regulatory powers that impinge upon ICANN. That is the very nature of state organisation and power. In the circumstances, the only solution to this problem is a general immunity under the US International Organisations Immunities Act, with proper customisation and exceptions for ICANN to enable to be able to perform its organisational activities from within the US. The chief exception I understand would be the application of California non profit law.

1 0