On Tuesday 14 February 2017 10:52 PM, Phil Corwin wrote:
Those interested in the scope of jurisdictional immunity for IGOs should review the legal memo from Prof. Edward Swaine contained in the initial report available at https://www.icann.org/public-comments/igo-ingo-crp-access-initial-2017-01-20... >
As you will see it varies by both jurisdiction and facts of the specific case.
Thanks to Phil for the original link and to Pranesh for reminding us of it... I agree this is an important document. To me it proves what I have been arguing all along; that it is possible to get (or seek) immunity from US jurisdiction for ICANN under the relevant US Act even while ensuring that ICANN's community accountability and other internal governance mechanisms can continue to operate as at present, even when they require the cover of certain US laws like the California non profit law, plus perhaps some kinds of other private laws. This is proven by two concepts discussed in the legal memo. (1) Functional immunity: When a designated international organisation (here, ICANN) is given immunity to only cover its given functions, and not generally for everything under the sun. (2) Waiver of immunity: Whereby the designated international organisation (here, ICANN) can waive its immunity in certain respects. So ICANN has to simply waive its immunity with respect to the operation of the Californian non profit law which now has a nexus with its new accountability mechanism, and is also otherwise the law of its incorporation. (Even with general immunity, such a waiver alone is enough for ICANN to preserve its current ways of functioning, including the accountability mechanism). Accordingly, those who have been arguing that immunity for ICANN cannot be sought because it will disable its community accountability mechanism should in my view now withdraw that argument. It should now be possible for them to agree to seeking immunity for ICANN under the relevant US Act. As to those who actually think that application of full range of US law to ICANN, in every area, whether related to health, or communication, or security/ privacy, or intellectual property, or anti trust, on excluding non-US citizens, basically everything, is actually a good thing and should continue, I of course have no answer. parminder
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------------------------------------------------------------------------ *From:* ws2-jurisdiction-bounces@icann.org [ws2-jurisdiction-bounces@icann.org] on behalf of parminder [parminder@itforchange.net] *Sent:* Tuesday, February 14, 2017 12:17 PM *To:* Burr, Becky; Paul Rosenzweig; ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
On Tuesday 14 February 2017 10:23 PM, Burr, Becky wrote:
Again, speaking only for myself, my question regarding scope was about immunity, not jurisdiction. They are not the same. The existence of privileges and immunities for international organizations is not jurisdiction dependent – many jurisdictions (including the US) offer such protections. My point here was that the question of immunities was indeed raised and rejected in WS1. ( In fact, this has come up from time to time since Paul Twomey first brought up the Fertilizer Institute example. My thoughts on this are fairly well documented … )
Thanks for your explanation, Becky.... But do not all the problems that you list about enforcing new accountability mechanism apply as much to change of jurisdiction as obtaining immunity under US jurisdiction. In fact I understand getting immunity under the relevant US Act as a diluter form of exit from US jurisdiction or change in jurisdiction.
Although I do not want to distract from the standalone point about how so many people (whether or not you, becky) who force-postponed the jurisdiction issue to work stream2 now argue that it should have been dealt in works stream 1, if at all, let me also observe that:
The fact is that it is possible to preserve the accountability mechanism as a matter of private law, and with a choice of law/ venue for it being made as California law, even with obtaining immunity under the cited US Act... We have given examples of other US organisations -- like the fertilizer one you mention -- that continue to be US non profits even as they have gained immunity under this US Act. Why dont we first legally explore this option rather than just rejecting it out of hand every time. Millions of dollars have been spent on legal fees on the transition, why cant we spend a little more money to explore this issue. I have asked for it many times before on this list... parminder
*From:*parminder [mailto:parminder@itforchange.net] *Sent:* Tuesday, February 14, 2017 11:43 AM *To:* Burr, Becky <Becky.Burr@neustar.biz>; Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
On Tuesday 14 February 2017 03:23 AM, Burr, Becky wrote:
On the Right to be Forgotten issue, this may be of interest: https://www.theguardian.com/technology/2016/feb/11/google-extend-right-to-be... <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.theguardian.com_tec...>
Asking only for information, and not reflecting any views of the Board – but is the question of immunity within scope? We just spent several years and many millions of dollars agreeing on an accountability mechanism that ultimately relies on the authority of a court to enforce the results of an IRP or the exercise of a community power.
Becky,
There are other responses to be given to a few issues and postings but this is confined to a very narrow and clear point: were you and others not around when, at the start of the transition process many asked for the jurisdiction to be taken up first, front and centre but it was argued by many and "decided" that work stream 1 will only take up issues that must be decided before and for the IANA transition to take place, and that other issues can be dealt by work stream 2, and, further, that the jurisdiction issue fits the description of issues for the work-stream 2, it being not essential to IANA transition and setting up new IANA and community accountability arrangements. With this precise argument, the jurisdiction issue was force-postponed to works stream 2 over the protests of those who wanted to sort it our first. What does one now make of the same people saying that jurisdiction issue should in fact have been sorted out before the new IANA and community accountability mechanisms were decided, and now it is too late to do so? Please clarify. Thanks. Best regards, parminder
*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Paul Rosenzweig *Sent:* Monday, February 13, 2017 1:59 PM *To:* 'parminder' <parminder@itforchange.net> <mailto:parminder@itforchange.net>; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
Yes, I refute the proposition because it is an alternate fact. Or put another way – it is wrong.
The true fact is simple – by virture of doing business in France, ICANN is subject to French law. France’s privacy authorities might, for example, attempt to get ICANN to follow their right to be forgotten. They would fail, I think, but that proposition is no different in kind than the idea of US antitrust jurisdiction over ICANN which will not change one iota if ICANN changes its jurisdiction of incorporation. As I have said before, the only way in which place of jurisdiction matters significantly (or to use your words is of a “different order” is regarding law relating to corporate incorporation and governance. As to that – e.g. the implementation of ICANN’s actual corporate governance – it would change significantly if ICANN moved. But, as others have also noted, the corporate law of California is vital to ICANN’s current structure.
As for your question about my professional life it is amusing – because that is indeed what I do for a living and I have, in fact, given exactly that advice to German businesses with operations in the United States. I tell them that if they want to avoid American law (mostly law relating to cybersecurity) the only way to do so is to avoid having a business presence in the US. If they want to forgo the market completely they can do so to avoid American law. But otherwise they cannot. And, I tell them the exact same thing about French and Indian law as well. In short, I do this for a living and yes, I say exactly the same thing to paying clients.
It is not me who is “falsifying facts” Paraminder. You are making assertions that have no actual basis in any law that I know of. Repeatedly asserting them as “facts” does not make them so
Paul
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*From:*parminder [mailto:parminder@itforchange.net] *Sent:* Sunday, February 12, 2017 12:54 AM *To:* Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>>; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
On Saturday 11 February 2017 10:54 PM, Paul Rosenzweig wrote:
As we have repeatedly noted, the exact same thing is true of ICANN’s being subject to the laws of India, France and any other place it does business.
Paul, and you have missed the repeated response that of course this is not true (and you know it) -- the implication of jurisdiction of incorporation of a body, and its impact on its working, is of a completely different order than that of the jurisdictions where it may merely conduct some business. Do you refute this proposition?
Would you in your professional life advice, say, a business incorporated in Germany but with worldwide business footprint that the application of German jurisdiction and laws on it -- and the real life implications of such application -- is more or less the same as application of jurisdiction and laws of all counties where it may conduct any business at all? I look forward to a clear and unambiguous response to this. Thanks.
If indeed we are to keep falsifying such basic facts, which everyone knows well, and base our positions on that, there is no way we can go anywhere with this sub group. We may as well close it up and let the rapporteur write whatever report he may want to forward. No use wasting time here in trying to "prove" and reprove and reprove basic universally known legal and political facts.
Your persistence in arguing a strawman Paraminder puts me in mind of Amartya Sen.
A perceptive book he wrote, but also speaks of Indian humility and self-deprecation... Wonder why no one ever wrote "The Hegemonic American"...
parminder
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*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Saturday, February 11, 2017 8:46 AM *To:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
Nigel,
Thanks for your views. One gets faced by two kinds of arguments in favour of keeping the jurisdictional status quo -- which are mutually exclusive.
(1) ICANN is somehow not subject to the whole range of US law and executive powers, as any other US organisations is - or at least it is somehow felt that US law and executive power will never apply itself over ICANN functioning.
(2) As you argue, ICANN is indeed subject to all US laws and powers, which might indeed be applied over it as necessary, but this is a good and a desirable thing.
As we have no move forward at all, we must do it in stages and remove some arguments off the table which we can mutually agree to be untenable. So can we now agree that the view (1) above is simply untrue and naively held by those who forward it.
We can now move to (2). First of all, this means that indeed US law and executive can impinge upon ICANN's policy implementation whenever it feels it valid to do so in pursuance of legitimate US public interest. Meaning, If ICANN makes a policy and does its implementation which is not in-accordance with US law or legitimate US executive will, they can "interfere" can cause those actions to be rolled back on the pain of state's coercive action. This can be for instance regarding how and what medicines and health related activities are considered ok by the concerned US regulator. (Similar examples can be thought of in practically every sector). Are you with me till here, because I think I am only making logical deduction over what you seem to agree with?
If so, this indeed establishes as a fact that US jurisdiction can, as required, impinge upon (which seen from another vantage is same as, interfere with) ICANN policies and policy implementation.
Which makes the entire exercise of our questionnaire seeking whether it can so happen rather needless. It of course can.
Lets then not argue or fight over that terrain, where we have this agreement, about how law and executive power operates vis a vis organisations subject to their jurisdiction.
That brings us to another terrain - that, as you argue, and others have here, that it is right, appropriate and needed that US law and legitimate executive power impinges upon ICANN functioning as and when required, becuase it is important to subject everything to the rule of law (and in your and many other people's views, ICANN can practically ONLY be subject to rule of US's law).
I am happy to discuss this part as long as we do not keep drifting back to the earlier one whereby there really seems to be an agreement among most of us that US law and legitimate executive power can indeed impinge upon or "interfere with" ICANN's policy or policy implementation work (even if many consider such interference as being good for ICANN and public interest) .
Your only problem with immunity seem to come up with regard to criminally fraudulent activities. You give the examples of IOC and FIFA but I have not found they having any special criminal immunities. I may not have looked up well, but did they? Were they not finally raided by both Swiss and US authorities. On the other hand there are many international organisations with legal immunities that have been gooing great global public interest work without corruption. Interpol hasnt started to take money to make international warrants disappear, not, more humbly, the International Fertilizers Development Centre, immunised under the relevant US Act, and which enters into contracts worth millions every years for globally distributed projects, has been known to do so....
(FIFA and IOC become corrupt because of commercial thinking completely overpowering public service ethics -- and if ICANN becomes so it will also be ore likely becuase of this reason. But et us not get distracted. )
And if indeed we are so concerned about ICANN's abuse of power and possible frauds and corruption, we should have let a stronger and more agile community accountability mechanism get established, like the membership based one, and with lower thresholds of triggering community action... That is where the mistake was made, and can still be corrected down the line. Do not throw the world at the mercy of US law and executive action for this purpose, especially when it related to to an infrastructure which today underpins almost every social system. This is not just some sports. (No hurt intended to sports fans, I being one.)
parminder
On Saturday 11 February 2017 02:16 PM, Nigel Roberts wrote:
and innumerable others. In the circumstances, the real waiver across all sectors and laws would be seek immunity under the US International Organisations Immunity Act. Would you not prefer this route? If not, why so?
Because I do not want ICANN to have immunity.
I have been involved in this community since before it was called 'ICANN', including the gTLD-MoU and the IFWP.
I have seen ICANN behave as an autocrat robber baron and deprive people of their property.
Fortunately, we have made great strides since then.
Accountability work, between 2003 (in the case of ccTLDs) up to last years' transition, as well as the fact that, both staff and Board now have personal trust, that was totally absent 15 years ago.
But both organisations and personnnel can change.
Institutional immunity leads to corruption. I do not want ICANN to become a FIFA, or IOC.
And the recent .AFRICA case shows, the checks and balances of the US judicial system appear to work reasonably well (I personally remain uneasy about the covenant of immunity but I expect you have no problem with that).
I trust this explains why some people - and I am one - may have a diametrically opposed view to yours when it comes to ICANN immunity.
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