Parmainder, I do not understand your argument. 1. what are the objectives to provide immunity to ICANN 2. What we mean by ICANN; Its 20 Board’s members or its 16 elected Board’s or the entire ICANN including all staff? 3. You said , quote “I am sure that jurisdictional immunity can be structured in a manner that it does not affect th required judicial processes around accountability enforcement, and two, accountability enforcement processes are in any case private law issues and a jurisdiction can be specifically chosen for its enforcement (preferably US jurisdiction).” Unquote May you kindly provide a valid legal argument that it does not affect th required judicial processes around accountability enforcement? What are the precedence in this regard? Kavouss 2016-10-30 11:54 GMT+01:00 parminder <parminder@itforchange.net>:
On Sunday 30 October 2016 03:55 PM, Kavouss Arasteh wrote:
Dear Parminder I tend to agree with your logic and valid arguments.However, some of our colleagues who very well understand and agree to your reasoning, insist on their initial thoughts as they have be under the influence of their local law and have certain difficulties to think otherwise.
Yes, Kavouss, I fully understand and accept it, all of us take time coming out of our specific 'locations' into what can become a real global dialogue oriented to global public interest. But we have time, and I am sure we will reach there. And thanks for the below cut-pastes, very useful. parminder
On the other hand, I admire your follow up action as you are the only one continuing to discuss, examine, analyse and trying to get some workable things out of it..Other CCWG have taken a silent position which is pity . For ease of référence I have made a simple cut and paste the exchanged views on the matter. It would be good that people go through that to find out whether every thing said is consistent and coherent
*Mueller, Milton L via <https://support.google.com/mail/answer/1311182?hl=fr> icann.org <http://icann.org> *
*28 oct. (Il y a 2 jours)*
*À Jorge.Cancio, ws2-jurisdicti*
*One thing to keep in mind about these court cases. The litigation concerns such things as whether ICANN was in breach of contract, whether it committed fraud, and whether it needs to be ordered to follow the IRP decision. It does _not_ put an American court in the position of deciding which of two applicants for the .AFRICA domain are the more worthy. In other words, the U.S. court in this case is not the policy maker, it is a settler of legal disputes among contracting or would-be contracting parties. *
*--MM*
*Schweighofer Erich **via <https://support.google.com/mail/answer/1311182?hl=fr>** icann.org <http://icann.org> *
*28 oct. (Il y a 2 jours)*
*À Milton, Jorge.Cancio, ws2-jurisdicti. *
*Thanks for this important comment. BUT: formal procedures decide the outcome of legal disputes, even if sufficient respect for the applicable law and autonomy of ICANN is accepted by the Court. It reminds me of the Cadi case here at the ECJ. Formally, UN law was accepted but for ordre public reasons not given full effect. Disputes must be settled in a proper forum and forum shopping must be avoided. *
*Erich Schweighofer*
*Paul Rosenzweig **via <https://support.google.com/mail/answer/1311182?hl=fr>** icann.org <http://icann.org> *
*28 oct. (Il y a 2 jours)*
*À Milton, Jorge.Cancio, ws2-jurisdicti. *
*To which one needs to add that the principal reason the case is in California is that California is specified as the venue (and also as the substantive decisional law) in ICANN’s contracts. As a general matter ICANN is free to specify that the next such dispute be determined by an arbital panel in London (as an example) if it wishes, or using Swiss (another example) concepts of procedural due process. *
* Paul*
*Paul Rosenzweig*
*On Friday 28 October 2016 06:33 AM, Mueller, Milton L wrote:*
*One thing to keep in mind about these court cases. The litigation concerns such things as whether ICANN was in breach of contract, whether it committed fraud, and whether it needs to be ordered to follow the IRP decision. *
*Milton, not sure what you mean by the plural "these court cases". Other cases in US courts like .xxx and .ir are/ were of a very different quality and clearly involved issues very different from 'breach of contract'. Further, even the .africa case involves public law issues of unfair competition and fraud (yes you mention it, but this does not fall in private law category as breach of contract does), which are determined not as per what the contract between the two private parties was but what is the law of the US state. which applies to everyone in the US, without any choice. *
*It does _not_ put an American court in the position of deciding which of two applicants for the .AFRICA domain are the more worthy.*
* In fact if you see the initial judgements, not only the public law issues of fraud and unfair competition are considered, the court explicitly applies the 'public interest' test. I would think that means it is ready to see which side's contentions are 'more worthy'. Further, I, as a non US citizen would not be ready to go by a US court's judgement of what is in public interest, especially if one of the parties be a US entity and other not. *
*In other words, the U.S. court in this case is not the policy maker,*
* It is US policies that concretise US public interest, which is not only put into law but, as shown above, US courts are ready to freely use the 'public interest' criterion (as all courts do).... Now, the whole point of democracy is to establish just and equitable institutions to establish 'the public interest' and put it into policies and law. It is not for other countries' courts - a part of that country's democratic set up -- to determine 'the public interest'. The basic issue here for me is democracy, but I have the feeling that, this often taken for granted right of all people, is not an issue that concerns much of the discussion here. This thing is being treated more like we were in a purely commercial arena, just determining mutual rights of contracting parties alone. That is not true, nor appropriate. parminder *
*On Friday 28 October 2016 07:39 PM, Paul Rosenzweig wrote:*
*To which one needs to add that the principal reason the case is in California is that California is specified as the venue (and also as the substantive decisional law) in ICANN’s contracts. As a general matter ICANN is free to specify that the next such dispute be determined by an arbital panel in London (as an example) if it wishes, or using Swiss (another example) concepts of procedural due process. *
* This may be true for issues of breach of contract, but not for issues of public law, like anti competitive practices, or fraud. In the latter set, there is no choice of law available. ICANN as US not profit is subject to US law and can be sued under it, or the state may take suo moto action. As from tis discussion, It has been clear during the working of this group that, in terms of the mandate of this group to give recs on the jurisdiction issue, there are two very different set of issues that come up for consideration which will require very different kind of recs. One set is of such issues where a choice of jurisdiction is available. With regard to these issues, this subgroup has to determine how this available choice should be exercised. The second set is of such issues where no choice of application of law is available, and the law of the place of incorporation and HQ applies. This is the trickly part, and we have to determine (1) what kind of problems may faced in the future, (2) how serious they are, their ramifications etc, (3) what, if anything at all, can be done with regard to this issue (4) what are the benefits and drawbacks of different possible options, (5) considering all these elements, is it worth recommending one or more options. It will be most useful is our work is organised in line with the kind of recommendations that we may make, which I see is as above. I do not see why our current documents keep these two different kinds of issues mixed, which admit of very different 'jurisdictional' treatment. Neither can I understand the logic of trying to eliminate right away some possible options that come much later in the discussion, instead of leading a structured discussion towards them. **parminder*
*On Saturday 29 October 2016 07:37 PM, Paul Rosenzweig wrote: *
*I’m sorry, but that’s just wrong Paraminder. The fact that ICANN is a US corproaration has nothing to do with its subject to public law in any way different than the fact that it has an office in Istabul subjects it to Turkish public law. To the extent ICANN operates as a coroporation it is subject to the public law of every jurisdiction where it operates. It can be sued for anti-competitive behavior in India today, if someone were so minded, provided that an allegation of violating Indian law could be raised.*
* Paul, on the contrary I'd request you, lets talk on facts, and not fanciful notions. It is plain wrong to say that US public law applies on ICANN in the same way as Turkish or Indian law does. I dont know why are you even proposing such a completely unsustainable notion. I am not sure how to express my strong feelings against such a falsehood but let me try this: I am fine if this group makes a clear determination that "US public law applies to ICANN in exactly the same manner as of any other country" and writes it down as a finding in its report. I will like to see how a group of such well respected people and experts says such a thing. Of course, I am saying this bec I know that the group would never formally enter such a determination. But now since you have made this claim, and I do remember you have made it a few times earlier, and no one else has refuted it, Let me make a few points, but very briefly, bec I really do not consider this a serious proposition at all. I gave many examples of how US public law can interfere with ICANN's policy operation. Can you provide me with corresponding ways in which another country's law can interfere in the same or even similar way.... I do not want to bore the group by re listing all those examples, which I have done more than once in this discussion. A US court can change the decision of delegation of any gTLD, wherever the registry may be based. It can also impose the wisdom of US law over the domain allocation conditions of a gTLD. This it can do by direct fiat to ICANN. Other countries can interfere in operation of the DNS within their jurisdiction. They can direct registries and registrars located within their jurisdiction to act or not act in certain ways. US, on the other hand, can directly force the hand of ICANN in terms of its entire global operation, policy making as well as implementation work, including changes in the root file. I work in the management of an Indian non profit, which does multi country research projects. It would be most astonishing for me to hear that my non profit is equally subject to non Indian jurisdictions as it is to the Indian law. I am quite painfully aware that this is not a fact, not even close to it. For instance, when we do multi country project coordinated and run from India, I fully know how Indian law applies on the entirety of our actions and therefore of the overall project, whereas the courts of another country where a research team may do research for/ with us can interfere within that county for that part of the project. it is so simple and commonly understood, I wonder why am I even arguing it. Please lets not trash other people's important concerns in such of hand-ish manner... US's public law being applied unilaterally on the ICANN is a real problem with regard to the latter's global governance function. Let us explore what we can do*
2016-10-30 10:53 GMT+01:00 parminder <parminder@itforchange.net>:
On Saturday 29 October 2016 07:37 PM, Paul Rosenzweig wrote:
I’m sorry, but that’s just wrong Paraminder. The fact that ICANN is a US corproaration has nothing to do with its subject to public law in any way different than the fact that it has an office in Istabul subjects it to Turkish public law. To the extent ICANN operates as a coroporation it is subject to the public law of every jurisdiction where it operates. It can be sued for anti-competitive behavior in India today, if someone were so minded, provided that an allegation of violating Indian law could be raised.
Paul, on the contrary I'd request you, lets talk on facts, and not fanciful notions.
It is plain wrong to say that US public law applies on ICANN in the same way as Turkish or Indian law does. I dont know why are you even proposing such a completely unsustainable notion. I am not sure how to express my strong feelings against such a falsehood but let me try this: I am fine if this group makes a clear determination that "US public law applies to ICANN in exactly the same manner as of any other country" and writes it down as a finding in its report. I will like to see how a group of such well respected people and experts says such a thing. Of course, I am saying this bec I know that the group would never formally enter such a determination.
But now since you have made this claim, and I do remember you have made it a few times earlier, and no one else has refuted it, Let me make a few points, but very briefly, bec I really do not consider this a serious proposition at all.
I gave many examples of how US public law can interfere with ICANN's policy operation. Can you provide me with corresponding ways in which another country's law can interfere in the same or even similar way.... I do not want to bore the group by re listing all those examples, which I have done more than once in this discussion.
A US court can change the decision of delegation of any gTLD, wherever the registry may be based. It can also impose the wisdom of US law over the domain allocation conditions of a gTLD. This it can do by direct fiat to ICANN.
Other countries can interfere in operation of the DNS within their jurisdiction. They can direct registries and registrars located within their jurisdiction to act or not act in certain ways. US, on the other hand, can directly force the hand of ICANN in terms of its entire global operation, policy making as well as implementation work, including changes in the root file.
I work in the management of an Indian non profit, which does multi country research projects. It would be most astonishing for me to hear that my non profit is equally subject to non Indian jurisdictions as it is to the Indian law. I am quite painfully aware that this is not a fact, not even close to it. For instance, when we do multi country project coordinated and run from India, I fully know how Indian law applies on the entirety of our actions and therefore of the overall project, whereas the courts of another country where a research team may do research for/ with us can interfere within that county for that part of the project. it is so simple and commonly understood, I wonder why am I even arguing it.
Please lets not trash other people's important concerns in such offhand-ish manner... US's public law being applied unilaterally on the ICANN is a real problem with regard to the latter's global governance function. Let us explore what we can do about it..
parminder
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com
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M: +1 (202) 329-9650 <%2B1%20%28202%29%20329-9650>
VOIP: +1 (202) 738-1739 <%2B1%20%28202%29%20738-1739>
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*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounc es@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of * parminder *Sent:* Saturday, October 29, 2016 5:30 AM *To:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document
On Friday 28 October 2016 07:39 PM, Paul Rosenzweig wrote:
To which one needs to add that the principal reason the case is in California is that California is specified as the venue (and also as the substantive decisional law) in ICANN’s contracts. As a general matter ICANN is free to specify that the next such dispute be determined by an arbital panel in London (as an example) if it wishes, or using Swiss (another example) concepts of procedural due process.
This may be true for issues of breach of contract, but not for issues of public law, like anti competitive practices, or fraud. In the latter set, there is no choice of law available. ICANN as US not profit is subject to US law and can be sued under it, or the state may take suo moto action.
As from tis discussion, It has been clear during the working of this group that, in terms of the mandate of this group to give recs on the jurisdiction issue, there are two very different set of issues that come up for consideration which will require very different kind of recs.
One set is of such issues where a choice of jurisdiction is available. With regard to these issues, this subgroup has to determine how this available choice should be exercised.
The second set is of such issues where no choice of application of law is available, and the law of the place of incorporation and HQ applies. This is the trickly part, and we have to determine (1) what kind of problems may faced in the future, (2) how serious they are, their ramifications etc, (3) what, if anything at all, can be done with regard to this issue (4) what are the benefits and drawbacks of different possible options, (5) considering all these elements, is it worth recommending one or more options.
It will be most useful is our work is organised in line with the kind of recommendations that we may make, which I see is as above. I do not see why our current documents keep these two different kinds of issues mixed, which admit of very different 'jurisdictional' treatment. Neither can I understand the logic of trying to eliminate right away some possible options that come much later in the discussion, instead of leading a structured discussion towards them.
parminder
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com
O: +1 (202) 547-0660 <%2B1%20%28202%29%20547-0660>
M: +1 (202) 329-9650 <%2B1%20%28202%29%20329-9650>
VOIP: +1 (202) 738-1739 <%2B1%20%28202%29%20738-1739>
www.redbranchconsulting.com
My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/
*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounc es@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Mueller, Milton L *Sent:* Thursday, October 27, 2016 9:04 PM *To:* Jorge.Cancio@bakom.admin.ch; ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document
One thing to keep in mind about these court cases. The litigation concerns such things as whether ICANN was in breach of contract, whether it committed fraud, and whether it needs to be ordered to follow the IRP decision. It does _*not*_ put an American court in the position of deciding which of two applicants for the .AFRICA domain are the more worthy. In other words, the U.S. court in this case is not the policy maker, it is a settler of legal disputes among contracting or would-be contracting parties.
--MM
*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounc es@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of * Jorge.Cancio@bakom.admin.ch *Sent:* Thursday, October 27, 2016 4:00 PM *To:* gregshatanipc@gmail.com; ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document
Hi, here’s the website about the „.africa“ issue I mentioned in the chat: http://www.africainonespace.org/litigation.php
Cheers
Jorge
*Von:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounc es@icann.org <ws2-jurisdiction-bounces@icann.org>] *Im Auftrag von *Greg Shatan *Gesendet:* Donnerstag, 27. Oktober 2016 20:59 *An:* ws2-jurisdiction@icann.org *Betreff:* [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document
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