Parminder,

My point is that we need to be clear about which "layer(s)" are being discussed.  I didn't say they were independent of each other.  The layers of jurisdiction are an essential part of our analytical framework, so understanding the relationship that a statement, claim, position or activity has to this analytical framework is critical. 

It would be helpful to the Subgroup if you can relate your statements above to the layer(s) of jurisdiction, and also clarify your terms, since some of the terms you use do not have consistent or commonly understood meanings.

In particular, the term "public law" is not typically used in analyzing U.S. law to the best of my knowledge and experience, and has no meaning I'm aware of in relation to U.S. law.  It may have other and varying meanings in other legal systems.

In order for me (and the Subgroup) to understand the points you are trying to make here, I have a number of questions that would really help clarifying your terminology and your points.  I apologize that there are a fair number of questions, but I'm really trying to understand what you're saying, and these are the questions I had as I was trying to figure it out.  (You should read the subquestions below each question before answering each question set, since the subquestions are in part my own attempts to understand what you meant.) 

I look forward to your answers.

1.  Can you explain the value and purpose of distinguishing between "public law" and "private law"?
 
2.  Can you explain what you mean by "public law"?  
a. Do you mean all of the laws of a jurisdiction (e.g., California statutes, regulations and case law) or do you mean only a subset of those laws?  
b. Can you also explain what you mean by "private law"?
c. Does "private law" only refer to the agreements made between parties to a contract (which, technically speaking, aren't "laws" at all)?
d. Or is some part of a jurisdiction's statutes, regulations and case law (at least for a common law jurisdiction) also "private law"? If so, which part?  

3. If some statutes, etc. are "public" and others "private", how would one distinguish between private and public laws (since they are not characterized that way)?  

4. Does the distinction between "public law" and "private law" relate in any way to the party that is applying the law?
a. For example: If a government agency seeks to enforce a law against a private party, is that public law?  
b. If a private party seeks to enforce that same law against a private party, is that private law?
c. Does this change if the government agency sues the private party in court, as opposed to using other methods (e.g., fines)?
d. Does this change if the private party sues the other private party in court, as opposed to making a demand and seeking compliance without going to court?
e. How about if a private party seeks to enforce the terms of a contract? Is this private law when making a demand? Is it still private law if the private party sues in court?
f. What if enforcement of the term requires analysis under a statute (e.g., a non-compete clause may not be enforceable if it violates laws against certain types or features of non-compete clauses)?  
g. Is that statute a private or public law?
h. In this question 4, would any answer be different if a government entity was seeking to enforce the contract?
i.  In this question 4, would any answer be different if a private party is seeking to enforce a contract with a government entity?

5.  What is the "hierarchy" of layers of jurisdiction?  What makes one layer more important than another?  What makes this hierarchy "strong"?  Can you cite any source for this hierarchy?

6.  Which of our layers of jurisdiction is the "public law jurisdiction"? If it's more than one, how does it relate to each one?

Turning to your statements, it would be helpful to the Subgroup (including me) if you would clarify the following:

1. What do you mean when you say "public law of applicable public law jurisdiction will triumph what is put in an contract and its interpretation by any given "choice of law"."?

a. What is the context of this statement?  Are you referring to litigation? Or are you referring to a dispute between private parties that is not in court (e.g., a disagreement over the meaning of a contractual term?

b. When you say "public law ... will triumph what is put in an contract" do you mean that a contractual provision that violates the law will not be enforceable?  Does this "triumph" only come because the court hearing the dispute rules that the provision violates the law?  Or could this triumph come in a dispute between two parties that is still just a private disagreement?

c.  When you say "public law ... will triumph what is put in an contract and its interpretation by any given "choice of law"" what do you mean?  Do you mean that a court will always apply the law of its own jurisdiction even if there is a choice of law clause specifying a different jurisdiction (and even if the parties interpret the contract using the law of that different jurisdiction)?  Or do you mean that the decision of a court interpreting a contract using the law of another jurisdiction due to a "choice of law" provision will somehow be overruled by some sort of non-judicial government action?

d. By "public law of applicable public law jurisdiction" do you mean the statutes, regulations and case law of the applicable jurisdiction (e.g., California law if California law applies because of the Incorporation and Headquarters Location of ICANN)?  How does this contrast with the public law of the jurisdiction specified by the "choice of law" provision in the contract? (For example, if someone were to sue ICANN in California but the "choice of law" provision specifies Swiss law.)

e.  When you refer to "its interpretation by any given "choice of law"" who is doing the interpreting? Do you mean a court's interpretation of a contract using the jurisdiction specified in a "choice of law"?  Or do you mean a party's interpretation using that jurisdiction?  Or do you mean that the "choice of law" (which is a contractual provision, not a jurisdiction) can somehow act to interpret the contract? (if so, this will require some explanation, because I can't follow this.  I assume this is not what you mean, even though it's the literal interpretation of what you've said.)

f.  How does this statement relate to enhancing ICANN's accountability?

2.  You say "It s therefore more important to consider the application of public law jurisdiction and how it impacts ICANN's policy processes...."

a.  "More important" than what?

b. When you say the "application of public law jurisdiction" who is doing the applying?

c.  How does one apply "public law jurisdiction"?  Do you mean applying the laws of a particular jurisdiction? Or specifically only the "public laws" of a particular jurisdiction? (Again, I need to understand what you mean when you say "public law") Or do you somehow mean that the "public law jurisdiction" is being applied (as distinguished from applying the laws of that jurisdiction)? If so, what is the distinction?

d.  Are you drawing a distinction between "public law jurisdiction" and some other kind of "jurisdiction"?

e.  What are specific "applications" of "public law jurisdiction"?  How might each "impact ICANN's policy processes"?

f. How does your statement relate to enhancing ICANN's accountability?

g. In particular, how does the concern with "ICANN's policy processes" relate to enhancing ICANN's accountability?

​3.​ You say "
There may be other issues on the private law side, but they are secondary to the above key one.
​"​  

​a. ​
What is the "private law side"? Do you mean all disputes involving contracts, whether litigation, arbitration or merely a private disagreement?  Or do you only mean private disagreements? 
​Or do you mean all disputes between private parties, whether contractual or not?​

​b.  In di
sputes involving contracts
​, do you mean disputes​
where the only question is whether a party breached the terms of the contract, and no statutory law is being applied to make that determination?  If that's the case, would it still be on the "private law side" if case law (in a common law jurisdiction) was cited by the decision-maker?  Or is it the "private law side" only if no statutes, regulations or case law is involved?

c
​.  Why would issues on the private law side be secondary to the statement you refer to as the "above key one"?

d.  How does this relate to enhancing ICANN's accountability?​

Thank you again for answering these questions.  This will be very helpful in understanding your points.  Once we understand them, it will be possible to discuss them with a common understanding.

Best regards,

Greg

Greg Shatan
C: 917-816-6428
S: gsshatan
Phone-to-Skype: 646-845-9428
gregshatanipc@gmail.com


On Fri, Apr 7, 2017 at 11:35 PM, parminder <parminder@itforchange.net> wrote:

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



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