On Monday 17 October 2016 09:47 PM, Greg Shatan wrote:
I would like to clarify one statement that I made earlier, since it seems to have been misunderstood.
snip
 It appears that in Civil law, stemming from Roman law, the terms
​"public law" and "private law" ​
are used
​to ​distinguish and 
define
​, respectively​
(i) laws
​ created by the state​
governing the activities of the state and the interaction between the state and the individual or private entity vs. laws
​created by the state ​
governing the activities of individuals/private entities and their interaction with each other.
​  Thus, in Civil Law, public law and private law together make up the entire body of state-created law.  By contrast, in Common Law usage​, at least in the U.S., "public law" refers to the entire body of state-created law.

​(As a side note, judge-made precedent generally does not have the binding effect in Civil Law that it does in Common Law, but that's not really relevant here.) ​


​Moving on, ​
​I think ​
​the distinction between "private law" and "public law" creates confusion rather than clarity in this discussion.​  Perhaps it would be better to distinguish between "state actions" (i.e., disputes initiated by the state against a private party) and "private actions" (i.e., disputes initiated by one private party against another).

There are many cases where either state or a private party could initiate action under the same law.....

IMHO, the real distinction that we may be interested in about whether (1) choice of jurisdiction is available or (2) not . We as a group are looking at what we/ ICANN can "do" about the jurisdiction issue, and therefore the degrees of freedom available is the key element to consider here.

In cases where choice of jurisdiction may be available, as in writing contracts, we have a set of issues and recs to determine, for instance, if a contract is regarding activities that are largely going to take place in one particular country, it may be prudent to put that choice of jurisdiction in the contract. This WG can perhaps give a set of recs like this one.

In cases where no choice of jurisdiction is available, the key issue to determine is (1) whether this situation is sufferable, and the problems it creates are not too acute and/ or can be contained in other ways, and/or (2) whether any possibility of immunisation from US jurisdiction is available, and workable.

parminder






Greg