Every federal law is a Public Law.  https://www.congress.gov/public-laws/114th-congress

The term is not used in relationship to State or local laws, but they serve largely the same function within their jurisdictions, so I would call them public laws as well.

Private law is sometimes used to refer to the rules established between the parties in a contract, but clearly these do not have the force of law.  Private laws can also refer to laws passed sometimes to assist a particular individual, but that have no broader relevance.  These are typically used to solve discrete issues that can't be solve any other way, and they are relatively uncommon.

As Milton notes, there's no reason to get hung up on the dichotomy (whatever that dichotomy is).  We can look at Parminder's examples and deal with them.  These seem to fall into two buckets: legislation and government enforcement, and use of the courts by private parties.  Whether we call any of that private law or not really doesn't matter.

Greg

On Tue, Oct 11, 2016 at 1:23 PM, Nigel Roberts <nigel@channelisles.net> wrote:
I do not know if the US has a different definition, but in the UK 'public law' means law that applies to actions of the Government.

So an action in judicial review to overturn an adverse decision by an executive branch decision-maker is an action in public law.



On 11/10/16 16:19, Jeff Neuman wrote:
Although I am a properly licensed attorney in the United States, I am
not clear on what the definition is of “public law” vs. private law.
That  is not a concept that I am familiar with.  Are talking about
statutory law vs. common law, or are we talking about private causes of
action vs. government causes of action.



Sorry, but just trying to wrap my head around this and why it matters.



 *Jeffrey J. Neuman*

*Senior Vice President *|*Valideus USA***| *Com Laude USA*

1751 Pinnacle Drive, Suite 600

Mclean, VA 22102, United States

 E: jeff.neuman@valideus.com <mailto:jeff.neuman@valideus.com>or
jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com>

T: +1.703.635.7514

M: +1.202.549.5079

@Jintlaw





 *From:*ws2-jurisdiction-bounces@icann.org
[mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Mueller, Milton L
*Sent:* Tuesday, October 11, 2016 10:51 AM
*To:* parminder <parminder@itforchange.net>; ws2-jurisdiction@icann.org
*Subject:* Re: [Ws2-jurisdiction] Our work so far, and a way forward



I don’t think the question of public law is out of consideration. There
is much talk of “applicable [public] law” when we consider dispute
resolution/choice of law, for example. However, it is not clear how
 those issues fit into the “jurisdiction layer” model that seems to be
clarifying and driving our agenda. So I hope Greg and Vinay can weigh in
on that issue for us.



If I understand you correctly, public law issues are analogous to a
“stress test;” there is no major issue with it now, but we need to
explore how the new ICANN regime will react if something happens. E.g.,
the European Commission opens an antitrust investigation into ICANN, or
a (unlikely) Trump administration pushes a bill through Congress
re-regulating ICANN





 *From:*ws2-jurisdiction-bounces@icann.org
<mailto:ws2-jurisdiction-bounces@icann.org>
[mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder
*Sent:* Tuesday, October 11, 2016 3:59 AM
*To:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>
*Subject:* Re: [Ws2-jurisdiction] Our work so far, and a way forward








On Monday 10 October 2016 10:28 AM, Greg Shatan wrote:

    All,



    In order to move forward, and based on the discussions so far, I
    suggest the following approach.



    First, we should continue the current approach of defining and
    refining the various layers of jurisdiction, and I encourage you all
    to go to the Google doc and add your views.
     https://docs.google.com/document/d/1oE9xDIAJhr4Nx7vNO_mWotSXuUtTgJMRs6U92yTgOH4/edit?usp=sharing



    Second, we won't investigate changing ICANN's headquarters or
    incorporation jurisdiction at this time.  However, it's not off the
    table -- if we identify an issue during our work and we can't find a
    less drastic way to deal with that issue, we will revisit this point
    at that time.  We can then revisit the concerns that people have
    raised regarding such a recommendation in the context of a
    particular issue.


While I can always insert this in the Google doc, I prefer to first
discuss this here. (And yes I am repeating it.) The jurisdiction issue
is best divided as (1) application of public law, (2) application of
private law, (3) the rest of sundry stuff - like about different global
offices and interaction with respective domestic jurisdiction (these are
of relatively minor significance, and there may not be much to 'decide'
about them in advance)

Place of incorporation and location of HQ (which is almost always the
same) may be the proxy for 'application of public law' but they do not
necessarily conflate. US government by decree has given jurisdictional
immunities  even to such bodies that are *not* created under
international law and simply registered as private bodies, in the US or
elsewhere. This certainly is an important possibility to look into for
ICANN, which insulates it from application of US public law - in terms
of its key organisational activities -- without moving the headquarters
or even jurisdiction of incorporation.

I will repeat the question I put to the chairs in my last email: "are we
considering this issue of application of US public law to ICANN, and the
problems that it may cause with respect to its policy processes, and
being able to appropriately carry out its global governance role? "

The concerns around application of public law are very different than
those of application of private law -- and often different actors have
these two different kinds of concerns. Public law also have application
over private law cases.

If this group does not intend to get into the 'application of public
law' question and stick to issues of private law, then let it decide and
state as much in clear terms. Such actors whose interest in the
jurisdiction question comes primarily from the public law aspect can
then disengage from spending further time in this process - as for
instance I will like to do.

    Third, we should put aside "confirming and assessing the gap
    analysis" for the moment.  There is still a diversity of views on
    what this "gap analysis" was and what we need to do to confirm and
    assess it.  As a result, our time has been spent discussing the
    parameters of the assignment, rather than working on the assignment
    itself.  I believe that we will be better able to define the scope
    of this item and move to substance, if we spend some time looking at
    the substance of an issue that is clearly within our scope.



    After we finish clarifying the multiple layers of jurisdiction, we
    should move to an issue that is clearly within our scope --
    something we have to do.  That way we can move to the substance of
    the issue and not spend a lot of time on "scope."



    An issue that is clearly within our scope relates to ICANN's
    jurisdictions for settlement of disputes (i.e., venue and choice of
    law).


One way is to look at this is as concerning the application of private
law on iCANN matters.  But then, like in the case of .xxx, what if the
dispute invokes a public law (US competition law in this instance) --
which one can be assured that every disputant will do as long as it can
find a favourable US public law which seems to side with the way the
disputant wants things to go. As we explore the issue of 'settlement of
disputes' are we going to look only to private law part and not public
law? That IMHO would be quite inappropriate. But then if we are going to
look into  both private law and public law elements, the discussion gets
messy because private law can involve choice of jurisdiction but not
public law. This is why I think it is best if we divide our work and
discussions as I suggested above, separately about issues of public law
and those of private law.

But, as I said before, issues of public law are simply out, let us then
be clear about it. I request a clarification by the chairs.

    There should not be any question that this is within the scope of
    our group (Annex 12 refers to this as the "focus" for our group).
    Based on Annex 12, this involves looking at: "The influence that
    ICANN’s existing jurisdiction" relating to resolution of disputes
    "may have on the actual operation of policies


Application of US public law on ICANN has enormous influence on 'actual
operation of (ICANN) policies'. And so we are very much within our
mandate in discussing issues arising from 'public law' aspect.

    and accountability mechanisms." I suggest that we examine this
    "influence" and determine what this "influence" is.  Our work
    looking at venue and choice of law in the "multiple layers of
    jurisdiction" will help us in this task.


I gave a few instances in my last email of influence of US public law on
operation of ICANN policies. Would these examples qualify to be
considered under this or not?



    A note on process -- it is very important that we focus on creating
    written material. In our calls, we should be working on and working
    from these written materials. Ultimately, these writings will feed
    into our deliverable.  Put another way, you should focus your
    contributions on adding to the drafts (currently, the "layers of
    jurisdiction" document), rather than on relying solely on oral
    interventions in our calls -- after all we have 168 hours in a week,
    and only 1 hour for our call.


I agree. Calls can only help confirm or resolve some outstanding issues,
and lay further directions. What we can accomplish in writing we should
do. In that regard, I also think that to th extent issues can be
addressed and resolved in email exchanges here they best be done so...

Thanks, parminder



    I look forward to our upcoming call.


    Best regards,



    Greg



    _______________________________________________

    Ws2-jurisdiction mailing list

    Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org>

    https://mm.icann.org/mailman/listinfo/ws2-jurisdiction





_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction@icann.org
https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction@icann.org
https://mm.icann.org/mailman/listinfo/ws2-jurisdiction