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@icann.org [ws2-jurisdiction-bounces@icann.org] em nome de farzaneh badii [farzaneh.badii@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.