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



it is a settler of legal disputes among contracting or would-be contracting parties.

 

--MM

 

 

From: ws2-jurisdiction-bounces@icann.org [mailto: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-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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