Thanks for raising this point Paul,
This is indeed a question that I faced trying this out. We need an approach that is consistent across all cases, and as you point out, even when cases may not end up being decided against ICANN, there can be an effect.
So my suggestion is to assess :
- Whether there was actually an impact
- Whether there would have been an impact if the case had been decided, or would be decided in the future, against ICANN (potential impact)
It’s going to be another phase of our work to determine which lessons we draw from the cases, and whether we believe it’s appropriate to take these potential impacts into account within the work of our group. If, by then, we want to exclude the “potential impact” sections, we’ll do so, but at the data collection level, when we fill the form, I think we should include this piece of information.
Best
Mathieu
De : Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com]
Envoyé : vendredi 27 janvier 2017 17:01
À : 'Mueller, Milton L'; 'Mathieu Weill'; ws2-jurisdiction@icann.org
Objet : RE: [Ws2-jurisdiction] Case summary - 2 drafts for your review
I agree with Milton. By contrast, for example, the DotAfrica case is relevant as it reflects an instance where the legal system did have an effect on ICANN’s actions (that’s a statement of fact – not an assertion that the effect was good or bad). The question in the end will be what those effects are; whether they are adverse; and if changing to another jurisdiction would make the situation worse or better
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com
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From: Mueller, Milton L [mailto:milton@gatech.edu]
Sent: Friday, January 27, 2017 10:36 AM
To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; 'Mathieu Weill' <mathieu.weill@afnic.fr>; ws2-jurisdiction@icann.org
Subject: RE: [Ws2-jurisdiction] Case summary - 2 drafts for your review
I have to agree mostly with Paul on this:
In the “Effect on our Work” section I wonder at how you handled it. For me, the answer in the Arizona case would be “none” since the suit was dismissed early. To be sure you write of its potential effect – which had it succceded would have been significant. But that gives too much credit to the filing of a suit doesn’t it? Shouldn’t our inquiry be whether or not the exisiting legal system adequately protects our work from non-meritorious interference. And so, shouldn’t the Arizona case be a good sign that, at least in this case, the court reached a result that had no impact?
That case was a desperation delaying act that had no real legal basis, which the court quickly recognized. Apparently the plaintiffs realized it was groundless too - which is why they abandoned the case after failing to get the injunction. In others words, this was an attempt to use legal procedure to delay an outcome until the political situation changed, not a challenge based on the specific characteristics of US or Calif law. Unless one can argue that the U.S. jurisdiction is uniquely prone to these kinds of tricks working (and here I leave it to people with more comparative law experience than me), I don’t think the case is relevant.