On Thursday 06 April 2017 10:20 PM, Paul Rosenzweig wrote:
Sorry Paraminder – but just saying it is absurd doesn’t change the facts. The only way in which US jurisdiction has a superior claim is with respect to the law of jurisdictional organization. In other words, California corporate law governs ICANN’s bylaws formulation and Board and corporate operations preferentially.
Paul, What do you make of the following passage from the gTLD handbook of ICANN? ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the SDN List). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANN has been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. In any given case, however, OFAC could decide not to issue a requested license. ENDS Which other jurisdiction other than the US has these privileges? I really hope this spread of disinformation can be terminated here. This is dangerously tending towards post truth and "alternative facts".
But any place that ICANN does business is a potential place to sue on contract, or tort basis.
Yes, you can sue ICANN, but to what effect is what matters. I have referred you to how in almost all cases ICANN refuses "substantial contacts" outside California, US. You should take a look at the difficulties Indian courts have had to mind Google, Facebook, Whatsapp, etc, even when, unlike ICANN, these corporations cannot wash off their hands from "substantial contacts" in India, for it is from these contacts that they make their money - the advertisement revenue. Unlike them, ICANN would simply say, the courts can do what they may, if they want to disrupt registrar's business, it is upto them, but ICANN isnt going to change its policies for them. This cannot be said to US courts, because US courts can even close down ICANN ....
As for why not move to India – I have tried very hard not to reduce this to a comparison of the value and functioning of judicial systems. I don’t propose to start now.
But if superiority of US jurisdiction forms a good part of your logic to retain current jurisdictional status, you must mention it in this discussion on ICANN's jurisdiction. BTW, as I have often said, I do not ever propose that ICANN be incorporated in another country because that will is disrespectful to the US... Unlike you, I really respect all country jurisdictions and polities, in an international discussion. An insistence of keeping ICANN under US jurisdiction, and not even accepting possibility of customised immunity from US jurisdiction is indeed disrespectful to all other countries, and to the value of democracy itself.. And of course - I must respectfully make this political point -- I am indeed quite disappointed by the GAC members who are supposed to protect their country's and its citizens' sovereignty and right to be self-determination, but who, in the present context, seem to have little inclination to make that case... They must have their constraints, only that I am unable to see or understand them. parminder
Paul
Paul Rosenzweig
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*From:*parminder [mailto:parminder@itforchange.net] *Sent:* Wednesday, April 5, 2017 11:51 PM *To:* Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] Pool.com case summary
On Wednesday 05 April 2017 10:19 PM, Paul Rosenzweig wrote:
And as we have said before, ICANN cannot escape US jurisdiction by moving its headquarters. US law will assert jurisdiction so long as ICANN has “substantial contacts” with the US. The same is true of UK, Germany, Canada, Australia and I believe India …
We have been over this many times, but I simply cannot let pass this absurd proposition that India, for instance, has a comparable jurisdictional leverage over ICANN to US. I do not know why, even as a lawyer, you keep on making it.
And if indeed it was so, why not then lets have ICANN be moved to India or Switzerland.. US can still keep exercising its jurisdiction over ICANN, as you argue it will be able to, and all others can be happy too!
Meanwhile, it is not just the matter of a court exercising jurisdiction, but even more importantly of having leverage to enforce its writ....
As to the "substantial contacts" argument, if you go through the various court cases involving ICANN, you will see that wherever possible ICANN has denied "substantial contacts" is all places other than California, US, arguing that its role in the DNS stops with making a contract with a registry, which contract is deemed to have been made in California and is subject to its laws. Rest, downstream in the DNS, is none of ICANN's business...
parminder
Once again, this is wrong.
Paul
Paul Rosenzweig
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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:* Wednesday, April 5, 2017 5:58 AM *To:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Pool.com case summary
Although I do see that in some other cases ICANN did contest the jurisdiction over certain of its acts of different states in the US, claiming that California jurisdiction should apply. But the main point of discussion here is about larger application of US jurisdiction over ICANN vis a vis that of other countries.
parminder
On Wednesday 05 April 2017 12:56 PM, parminder wrote:
On Tuesday 04 April 2017 08:32 PM, Paul Rosenzweig wrote:
Statement #2 below is incorrect. I haven’t reviewed them all but at a minimum ICANN contested jurisdiction in Arizona v. ICANN, the law suit filed by the states to attempt to stop the transition.
For my statement # 2 to be incorrect, ICANN should have challenged application of US court jurisdiction in the Arizona case -- In fact there is no Arizona v. ICANN case that I can find. I can only find an Arizona v. NTIA case..... I cant see ICANN to be a party to it, neither has it filed a response. Will you please show me where ICANN challenges US court jurisdiction in this case? Thanks.
parminder
Paul
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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:* Tuesday, April 4, 2017 6:14 AM *To:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Pool.com case summary
On Monday 03 April 2017 07:57 PM, Paul Rosenzweig wrote:
Why would you say that Seun – it is what the lawyers for ICANN argued, but there is no evidence that the Canadian court agree to that submission. I would expect ICANN’s lawyers to make that argument and I would also expect based on what little I know of Canadian law that in the end the court would have rejected the argument.
It is absolutely significant that
(1) In the only documented case which went before a non US court, ICANN promptly contested the court's jurisdiction. This is fact was its primary argument as far as I can see from the case details.
(2) In none of more than 20 other documents cases, all in US courts, ICANN ever contested -- in the slightest -- the court's jurisdiction over ICANN or the matter under consideration.
It clearly shows that everyone -- ICANN, US courts, in fact even all of us -- know what is what vis a vis the absolute jurisdictional powers of US over ICANN, and thus over its policies and their implementation, and very feeble jurisdictional leeway (and even lesser enforcement capacity) that non US courts and other state agencies have over ICANN.
We are simply wasting out time trying to minutely examine facts that are fairly well established and normally not contested.
As you agreed with me in a way, lets come to the crux of the matter, and see what is this group really trying to do, what progress we are making or not making, what is the prognosis of possible outcomes, and so on....
IMHO we are just making ourselves believe that we are doing something in this group, when in fact we are not doing anything at all.
*/Sub-group chairs,/*
Kavouss had put the matter to the CCWG chairs of the email I wrote about the non progress of this groups work. CCWG chair seem to have ordered the matter to be addressed by the sub group. Are you going to take up that matter?
Also note that Paul too agreed with me that we seem not to be going anywhere (or some such, I do not want to put words in his mouth, his email of a few days back may be read)
Thanks, parminder
Paul
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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 *Seun Ojedeji *Sent:* Monday, April 3, 2017 9:41 AM *To:* Mathieu Weill <mathieu.weill@afnic.fr> <mailto:mathieu.weill@afnic.fr> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org> <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Pool.com case summary
Thanks a lot for sharing this Mathieu, I guess this removes any claims that the experience would be the same if ICANN were sued outside of her jurisdiction of incorporation. The following text makes that quite clear:
"Defendant ICANN asserted that the Court lacked jurisdiction because (quoting the argument): ICANN is not resident in Ontario The Action has no real or substantial connection to Ontario Virtually all the evidence and witnesses are in California"
I am not a lawyer but perhaps it may be good to know how flexible it is for non-US customer of ICANN to legally engage/challenge ICANN in her place of incorporation. The impact of this on US-banned countries may also be a good to know.
Regards
On Mon, Apr 3, 2017 at 2:29 PM, Mathieu Weill <mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>> wrote:
Dear Colleagues,
Here is another summary form for the Pool.com vs ICANN case. It’s an interesting case because it was the only one documented as submitted in front of a non-US court. However it was settled before it reached the decision stage.
Best,
-- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06 <tel:+33%201%2039%2030%2083%2006> mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr> Twitter : @mathieuweill *****************************
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