On Saturday 25 February 2017 07:38 PM, Nigel Roberts wrote:
Ladies and Gentlemen
Although the haste of the pre-transition days has gone, I think we
should still be proportionate in spending the corporations legal
budget.
It is entirely a waste of money, in my opinion, to instruct
lawyers to inform on a proposition which is objected to.
It is irrelevant WHETHER ICANN may waive immunity.
ICANN *SHOULD NOT HAVE* immunity.
Nigel,
May I request a clarification on your views, since the question at
present is not just "whether ICANN should have immunity" but a more
nuanced one - "whether ICANN should have immunity in a manner that
it can still avail of the concerned US law to ensure smooth
functioning of its community accountability mechanism".
Is it you view that ICANN should *not* have immunity from
US jurisdiction *even if* it can be had while still
being able to avail of the concerned US law to ensure smooth
functioning of its community accountability mechanism? (Apart of
course from normal immunity exceptions like most criminal matters
etc.) Thanks.
And if your answer is still "no" even to such partial immunity ,
does it matter to you that, in such a case, ICANN can no way be
considered to be moving towards being a "truly international
organisation" as called for by the NetMundial statement, arising
from a process of which ICANN itself was a co-convenor -- nor does
to confirm to the call for "accelerating the globalisation of ICANN"
in the Montevideo statement by the technical community (including
ICANN).
Have we now committed ourselves to moving backwards.
parminder
On 25/02/17 13:51, Kavouss Arasteh wrote:
Dear Grec
I fully agree with Seun.
We must raise this question legally and ask for a NEUTRAL LEGAL
VIEW
There is désagrément on the matter.
Several person said, there is no possibility to Immune ICANN
from US LAW
Others said .it has had a precedence.
This exchange of correspondence is totally counter productive
and must
be resolved properly.
I terrefort request Greg, to formulate the question/ view on the
matter
and after consultation with Co-Chair ask for an international
Neutral
Legal View .
Regards
Kavouss
2017-02-25 10:43 GMT+01:00 Seun Ojedeji
<seun.ojedeji@gmail.com
<mailto:seun.ojedeji@gmail.com>>:
On Feb 25, 2017 5:21 AM, "parminder"
<parminder@itforchange.net
<mailto:parminder@itforchange.net>> wrote:
Becky, thanks for your response and please see inline.
Absent the statutory grant of
authority found in California
law (and the laws of other jurisdictions no doubt),
the
community powers are likely not enforceable.
As argued in my previous email, based on an legal memo
attached
to an ICANN report, it is evident that ICANN can waive
immunity
with regard to operation of relevant California non
profit law
required for its accountability mechanism. I am happy to
seek
legal advice on this point. But from what looks apparent
now,
your above statement may not hold true.
SO: FWIW, Can we then derive a question from this for the
legal to
answer? I think it may be better we have something
officially/formerly documented with regards to this,
otherwise we
will just keep coming back to it everytime. It will be good
to be
able to provide documentation is future to show that it's a
matter
that has been discussed and brought to a "consensus based"
conclusion.
Regards
____
__ __
I am also confused about how one would reconcile the
privileges and immunity approach with deliberately
chosen
language in the Bylaws. Under the US International
Organizations Immunities Act, ICANN would first have
to be an
“international organization” as defined in the Act
thus: For
the purposes of this subchapter, the term
“international
organization” means a public international
organization in
which the United States participates pursuant to any
treaty or
under the authority of any Act of Congress authorizing
such
participation or making an appropriation for such
participation, and which shall have been designated by
the
President through appropriate Executive order as being
entitled to enjoy the privileges, exemptions, and
immunities
provided in this subchapter.” 22 U.S. Code 228. The
Swiss
Host State Act, 2007, has similar requirements.
Yes, it needs action by both the Congress and the
President of
the US. The former will need to just amend some existing
laws
related to some international orgs and add ICANN
somewhere in
it. Simple work. And the President has to issue a decree
under
the Immunities Act.
ICANN is not a treaty-based
organization,
This is not required.
nor is it conducting work normally carried out by an
intergovernmental organization.
As shown by Jorge, this is not true.
Turning it into a treaty-based
organization
No need to turn it into treaty based org to get US
immunity.
would seem to me to violate the Bylaws-mandated Core
Value
that requires ICANN to */remain rooted in the private
sector/*.
There is a linguistic problem here. Private sector is
understood
differently in the US than almost everywhere else. In
the US, it
is just to be outside government, which ICANN is.
Outside the
US, it mostly mean for profit sector. ICANN is indeed
outside
government(s), and there is no proposal to change that.
But it
is also equally a non profit . That also I hope is not
intended
to be changed.
In any case, whether non profit or for profit,
everything is
always subject to some kind of governmental
jurisdiction. Being
so subject does not change its non profit or even for
profit
nature. So the point is really moot.
This language was contested on
numerous occasions by members
of the GAC, and the community repeatedly insisted on
retaining
this orientation. I think that there can be little
argument
that the community affirmatively committed to
maintaining this
status through the Accountability work.
The community asked this group to consider the issue of
US
jurisdiction over ICANN. And a question can only be
considered
if it is open - -unless, sorry to use that word, we are
all
mutually and together fooling ourselves, and doing
discussions
that really have no meaning or purpose. I really hope
this is
not the case - -although, I must admit, despair often
does
arises that it may actually may be the case.
parminder
____
__ __
__ __
__ __
__ __
____
__ __
*From:*ws2-jurisdiction-bounces@icann.org
<mailto:ws2-jurisdiction-bounces@icann.org>
[mailto:ws2-jurisdiction-bounces@icann.org
<mailto:ws2-jurisdiction-bounces@icann.org>] *On
Behalf Of
*Seun Ojedeji
*Sent:* Tuesday, February 14, 2017 1:43 PM
*To:* Greg Shatan <gregshatanipc@gmail.com>
<mailto:gregshatanipc@gmail.com>
*Cc:* ws2-jurisdiction
<ws2-jurisdiction@icann.org>
<mailto:ws2-jurisdiction@icann.org>
*Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's
jurisdiction____
__ __
Sent from my LG G4
Kindly excuse brevity and typos____
__ __
On Feb 14, 2017 12:29 PM, "Greg Shatan"
<gregshatanipc@gmail.com
<mailto:gregshatanipc@gmail.com>>
wrote:____
Seun,____
__ __
You say that a "Trump travel Ban . . . compared
to____
if a travel Ban is placed on Turkey where ICANN
has a hub.
The former
would have global effects on ICANN than the
latter." ____
__ __
Can you clarify how a travel ban into the US from
a list
of countries would "have global effects on ICANN"
and a
travel ban into Turkey from a list of countries
not have a
similar type of effect? Is this just because more
people
will want to travel to ICANN's operations in the
US than
those in Turkey? ____
__ __
SO: It's not really because more people "want" to,
it's
because for ICANN it may be prudent at times to have
the
meeting in the US. When I say meeting, I am not just
referring
to the 3 global meetings alone.____
__ __
Why is it a global effect on ICANN if it only
concerns a
small number of countries?____
__ __
SO: Sometime ago I was reading an article mentioning
whether
I* organisations should cancel subsequent meetings in
the US
(even though I personally do not think it's worth it
to cancel
already planned Puerto Rico meeting) but imagine the
global
effects if such happen. Beyond that such action by US
govt
also cause unintended(or perhaps unnecessary)
consequences/reactions. Like it won't be out of scope
for an
African govt who is already pissed off with .Africa[1]
and
second level 2 character to also indicate the ban as
an
exhibit to drive a point. ____
__ __
Just checkout how many ICANN related articles that
connects to
the ban has been published lately so you think similar
level
of response would have happened globally if the travel
ban
happened in Turkey? I doubt. So it's not always about
the few
ban countries, it's about the global reaction.____
__ __
For clarity if ICANN were incorporated in Turkey and
same
banned happen, the global effect would have still be
similar
to that of the US at present. So the point is not that
it may
not have happened if ICANN was incorporated in Turkey
(or
Switzerland as Paul puts it) but the point is that it
is
unfair to say the effects to ICANN ORG/community in
both
scenarios is the same____
__ __
Regards____
1. Ofcourse I recognise there is not light at the end
of the
tunnel.____
__ __
[Please note that I personally do not support the
travel
ban, nor do I minimize the effects it has had and
continues to have on citizens of those
countries.]____
__ __
Thanks!____
__ __
Greg____
__ __
____
*Greg Shatan
*C: 917-816-6428 <tel:(917)%20816-6428>
S: gsshatan
Phone-to-Skype: 646-845-9428
<tel:(646)%20845-9428>
gregshatanipc@gmail.com
<mailto:gregshatanipc@gmail.com>____
__ __
On Tue, Feb 14, 2017 at 6:17 AM, Seun Ojedeji
<seun.ojedeji@gmail.com
<mailto:seun.ojedeji@gmail.com>>
wrote:____
Thanks Nigel, I am not asking about an overall
immunity for ICANN but I am talking about
specific
scenario like the ones I have indicated. Maybe
the
right word isn't immunity.____
__ __
Cheers!____
Sent from my LG G4
Kindly excuse brevity and typos____
__ __
On Feb 14, 2017 11:45 AM, "Nigel Roberts"
<nigel@channelisles.net
<mailto:nigel@channelisles.net>>
wrote:____
I think you miss the point about immunity.
It's means "ICANN can do what it likes and
can't
be sued".
On 14/02/17 09:23, Seun Ojedeji wrote:____
Hi,
I am not a lawyer but it doesn't sound
accurate to say that the effect
of the country of (US) on ICANN is
same with
that of other
countries (including the ones hosting
her
regional hubs) because that is
what I think Paul may be implying
here.
As a simple example is a Trump travel
Ban and
the OFAC stuff compared to
if a travel Ban is placed on Turkey
where
ICANN has a hub. The former
would have global effects on ICANN
than the
latter. I for one would be
glad if there can be
immunity/exemption for
ICANN(used in literary
terms) in such scenarios
Regards
Sent from my LG G4
Kindly excuse brevity and typos
On Feb 13, 2017 7:59 PM, "Paul
Rosenzweig"
<paul.rosenzweig@redbranchconsulting.com
<mailto:paul.rosenzweig@redbranchconsulting.com>
<mailto:paul.rosenzweig@redbranchconsulting.com
<mailto:paul.rosenzweig@redbranchconsulting.com>>>
wrote:
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____
__ __
Paul Rosenzweig____
paul.rosenzweig@redbranchconsulting.com
<mailto:paul.rosenzweig@redbranchconsulting.com>
<mailto:paul.rosenzweig@redbranchconsulting.com
<mailto:paul.rosenzweig@redbranchconsulting.com>>____
O: +1 (202) 547-0660
<tel:%2B1%20%28202%29%20547-0660>
<tel:+1%20202-547-0660>____
M: +1 (202) 329-9650
<tel:%2B1%20%28202%29%20329-9650>
<tel:+1%20202-329-9650>____
VOIP: +1 (202) 738-1739
<tel:%2B1%20%28202%29%20738-1739>
<tel:+1%20202-738-1739>____
www.redbranchconsulting.com
<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=SW0awN355LgKou0VH8FoTnUMVW3Ew72doP7GYG8HOWw&e=>
<http://www.redbranchconsulting.com/
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My PGP Key:
https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
<https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=gBJP9BR7SmJmiYPTtMNTO5cs0-iDPOyGn0HBd1gGbLk&e=>
<https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
<https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=gBJP9BR7SmJmiYPTtMNTO5cs0-iDPOyGn0HBd1gGbLk&e=>>____
__ __
*From:*parminder
[mailto:parminder@itforchange.net
<mailto:parminder@itforchange.net>
<mailto:parminder@itforchange.net
<mailto:parminder@itforchange.net>>]
*Sent:* Sunday, February 12, 2017
12:54 AM
*To:* Paul Rosenzweig
<paul.rosenzweig@redbranchconsulting.com
<mailto:paul.rosenzweig@redbranchconsulting.com>
<mailto:paul.rosenzweig@redbranchconsulting.com
<mailto:paul.rosenzweig@redbranchconsulting.com>>>;
ws2-jurisdiction@icann.org
<mailto:ws2-jurisdiction@icann.org>
<mailto: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
____
____
Paul Rosenzweig____
paul.rosenzweig@redbranchconsulting.com
<mailto:paul.rosenzweig@redbranchconsulting.com>
<mailto:paul.rosenzweig@redbranchconsulting.com
<mailto:paul.rosenzweig@redbranchconsulting.com>>____
O: +1 (202) 547-0660
<tel:%2B1%20%28202%29%20547-0660>
<tel:+1%20202-547-0660>____
M: +1 (202) 329-9650
<tel:%2B1%20%28202%29%20329-9650>
<tel:+1%20202-329-9650>____
VOIP: +1 (202) 738-1739
<tel:%2B1%20%28202%29%20738-1739>
<tel:+1%20202-738-1739>____
www.redbranchconsulting.com
<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=SW0awN355LgKou0VH8FoTnUMVW3Ew72doP7GYG8HOWw&e=>
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My PGP Key:
https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
<https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=gBJP9BR7SmJmiYPTtMNTO5cs0-iDPOyGn0HBd1gGbLk&e=>
<https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
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____
*From:*ws2-jurisdiction-bounces@icann.org
<mailto:ws2-jurisdiction-bounces@icann.org>
<mailto:ws2-jurisdiction-bounces@icann.org
<mailto:ws2-jurisdiction-bounces@icann.org>>
[mailto:ws2-jurisdiction-bounces@icann.org
<mailto: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>
<mailto: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) . ____
> of the country of (US) on ICANN
is same
with that of other
countries (including the ones hosting
her
regional hubs) because that is
what I think Paul may be implying
here.
As a simple example is a Trump travel
Ban and
the OFAC stuff compared to
if a travel Ban is placed on Turkey
where
ICANN has a hub. The former
would have global effects on ICANN
than the
latter. I for one would be
glad if there can be
immunity/exemption for
ICANN(used in literary
terms) in such scenarios
Regards
Sent from my LG G4
Kindly excuse brevity and typos
On Feb 13, 2017 7:59 PM, "Paul
Rosenzweig"
<paul.rosenzweig@redbranchconsulting.com
<mailto:paul.rosenzweig@redbranchconsulting.com>
<mailto:paul.rosenzweig@redbranchconsulting.com
<mailto:paul.rosenzweig@redbranchconsulting.com>>>
wrote:
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____
__ __
Paul Rosenzweig____
paul.rosenzweig@redbranchconsulting.com
<mailto:paul.rosenzweig@redbranchconsulting.com>
<mailto:paul.rosenzweig@redbranchconsulting.com
<mailto:paul.rosenzweig@redbranchconsulting.com>>____
O: +1 (202) 547-0660
<tel:%2B1%20%28202%29%20547-0660>
<tel:+1%20202-547-0660>____
M: +1 (202) 329-9650
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<tel:+1%20202-329-9650>____
VOIP: +1 (202) 738-1739
<tel:%2B1%20%28202%29%20738-1739>
<tel:+1%20202-738-1739>____
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__ __
*From:*parminder
[mailto:parminder@itforchange.net
<mailto:parminder@itforchange.net>
<mailto:parminder@itforchange.net
<mailto:parminder@itforchange.net>>]
*Sent:* Sunday, February 12, 2017
12:54 AM
*To:* Paul Rosenzweig
<paul.rosenzweig@redbranchconsulting.com
<mailto:paul.rosenzweig@redbranchconsulting.com>
<mailto:paul.rosenzweig@redbranchconsulting.com
<mailto:paul.rosenzweig@redbranchconsulting.com>>>;
ws2-jurisdiction@icann.org
<mailto:ws2-jurisdiction@icann.org>
<mailto: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
____
____
Paul Rosenzweig____
paul.rosenzweig@redbranchconsulting.com
<mailto:paul.rosenzweig@redbranchconsulting.com>
<mailto:paul.rosenzweig@redbranchconsulting.com
<mailto:paul.rosenzweig@redbranchconsulting.com>>____
O: +1 (202) 547-0660
<tel:%2B1%20%28202%29%20547-0660>
<tel:+1%20202-547-0660>____
M: +1 (202) 329-9650
<tel:%2B1%20%28202%29%20329-9650>
<tel:+1%20202-329-9650>____
VOIP: +1 (202) 738-1739
<tel:%2B1%20%28202%29%20738-1739>
<tel:+1%20202-738-1739>____
www.redbranchconsulting.com
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My PGP Key:
https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
<https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=gBJP9BR7SmJmiYPTtMNTO5cs0-iDPOyGn0HBd1gGbLk&e=>
<https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
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____
*From:*ws2-jurisdiction-bounces@icann.org
<mailto:ws2-jurisdiction-bounces@icann.org>
<mailto:ws2-jurisdiction-bounces@icann.org
<mailto:ws2-jurisdiction-bounces@icann.org>>
[mailto:ws2-jurisdiction-bounces@icann.org
<mailto: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>
<mailto: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
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