Yes Greg, They may be layers involved, but it must also be remembered that these layers are not independent of one another -- there is a strong hierarchy involved. Especially, public law of applicable public law jurisdiction will triumph what is put in an contract and its interpretation by any given "choice of law". It s therefore more important to consider the application of public law jurisdiction and how it impacts ICANN's policy processes.... There may be other issues on the private law side, but they are secondary to the above key one. parminder On Saturday 08 April 2017 06:48 AM, Greg Shatan wrote:
All,
I think it would be helpful to remind ourselves of the "Multiple Layers of Jurisdiction" set out in Work Stream 1. It would also be helpful to be accurate, specific and clear which layer one is referring to when talking about "jurisdiction," or the effect(s) of "jurisdiction."
The word "jurisdiction" is being used very loosely in some of our discussions. It is not particularly helpful to use the term "jurisdiction" vaguely or ambiguously, or as if it were a monolithic concept.
Here is a summary of the "Multiple Layers of Jurisdiction," adapted from the Subgroup's working document of the same name (underlined text is the suggested short name for the layer):
*MULTIPLE LAYERS OF JURISDICTION*
1. *Jurisdiction of _Incorporation_*.
a. The jurisdiction in which an entity is legally incorporated.
2. *Jurisdiction of _Headquarters Location_.*
a. The jurisdiction in which an entity’s headquarters is physically located.
3. *Jurisdiction of other places of _physical presence_.*
a. Other places where an entity maintains an ongoing physical presence__sufficient to subject the entity and its actions to some or all of the laws of that jurisdiction (as Incorporation and Headquarters Jurisdiction do).
b. This may also determine whether an entity can be subject to suit in the courts of that jurisdiction (i.e., “_personal jurisdiction_”).
4. *Jurisdiction for the law to be used in interpretation of contracts, etc. (_Governing Law/Choice of Law_) and actions of the Empowered Community.*
a. The jurisdiction whose laws will be used to interpret the rights and responsibilities of parties to a contract, whether in the normal course of business or during a dispute (e.g., litigation, arbitration or other dispute resolution mechanism).
b. More broadly, the substantive law to be applied during a litigation, arbitration or other dispute resolution mechanism.
c. In matters involving agreements, the governing law may have been specified in the agreement (e.g., in a “choice of law” clause).
d. If no governing law is specified or in non-contract cases, the governing law will be determined by the judge, panel or other decision-maker using principles of “conflicts of laws”, typically after submissions by the parties.
5. *Jurisdiction for the physical location of litigation of disputes (_Venue_)*.
a. The forum in which the dispute will be heard:
i) The type of proceeding (e.g., litigation (including the type of court), arbitration (including the provider/rules), IRP, etc.).
ii) The provider of that proceeding (e.g., Federal or national court, state or local court, an arbitration provider, etc.).
iii) The physical location (if any) in which the proceeding will take place (e.g., the country, state/province, city, etc.).
iv) A separate but related concept is “_subject matter jurisdiction_” (i.e., whether the court or other forum has the power to hear a case about a particular type of subject matter)
6. *Relationships with national jurisdictions for particular domestic issues.*
a. This “layer” was listed as one of the layers of jurisdiction in Annex 12.
7. *Meeting NTIA requirements.*
a. This “layer” was listed as one of the layers of jurisdiction in Annex 12.
We should make a conspicuous effort to relate any discussions of "jurisdiction" back to the specific "layer(s)" of jurisdiction we are referring to. This will help us have more effective discussions and to produce more useful output from those discussions.
Greg
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction