Our work so far, and a way forward
All, In order to move forward, and based on the discussions so far, I suggest the following approach. First, we should continue the current approach of defining and refining the various layers of jurisdiction, and I encourage you all to go to the Google doc and add your views. https://docs.google.com/ document/d/1oE9xDIAJhr4Nx7vNO_mWotSXuUtTgJMRs6U92yTgOH4/edit?usp=sharing Second, we won't investigate changing ICANN's headquarters or incorporation jurisdiction at this time. However, it's not off the table -- if we identify an issue during our work and we can't find a less drastic way to deal with that issue, we will revisit this point at that time. We can then revisit the concerns that people have raised regarding such a recommendation in the context of a particular issue. Third, we should put aside "confirming and assessing the gap analysis" for the moment. There is still a diversity of views on what this "gap analysis" was and what we need to do to confirm and assess it. As a result, our time has been spent discussing the parameters of the assignment, rather than working on the assignment itself. I believe that we will be better able to define the scope of this item and move to substance, if we spend some time looking at the substance of an issue that is clearly within our scope. After we finish clarifying the multiple layers of jurisdiction, we should move to an issue that is clearly within our scope -- something we have to do. That way we can move to the substance of the issue and not spend a lot of time on "scope." An issue that is clearly within our scope relates to ICANN's jurisdictions for settlement of disputes (i.e., venue and choice of law). There should not be any question that this is within the scope of our group (Annex 12 refers to this as the "focus" for our group). Based on Annex 12, this involves looking at: "The influence that ICANN’s existing jurisdiction" relating to resolution of disputes "may have on the actual operation of policies and accountability mechanisms." I suggest that we examine this "influence" and determine what this "influence" is. Our work looking at venue and choice of law in the "multiple layers of jurisdiction" will help us in this task. A note on process -- it is very important that we focus on creating written material. In our calls, we should be working on and working from these written materials. Ultimately, these writings will feed into our deliverable. Put another way, you should focus your contributions on adding to the drafts (currently, the "layers of jurisdiction" document), rather than on relying solely on oral interventions in our calls -- after all we have 168 hours in a week, and only 1 hour for our call. I look forward to our upcoming call. Best regards, Greg
Grec Thanks It seems reasonable if we do not any think from the table and if important points are not pushed to the end where there would be no time to discuss them By the way all 168 hours are not for jurisdiction as people have to perform other tasks inside or outside ICANN Regards Kavouss Sent from my iPhone
On 10 Oct 2016, at 06:58, Greg Shatan <gregshatanipc@gmail.com> wrote:
All,
In order to move forward, and based on the discussions so far, I suggest the following approach.
First, we should continue the current approach of defining and refining the various layers of jurisdiction, and I encourage you all to go to the Google doc and add your views. https://docs.google.com/document/d/1oE9xDIAJhr4Nx7vNO_mWotSXuUtTgJMRs6U92yTg...
Second, we won't investigate changing ICANN's headquarters or incorporation jurisdiction at this time. However, it's not off the table -- if we identify an issue during our work and we can't find a less drastic way to deal with that issue, we will revisit this point at that time. We can then revisit the concerns that people have raised regarding such a recommendation in the context of a particular issue.
Third, we should put aside "confirming and assessing the gap analysis" for the moment. There is still a diversity of views on what this "gap analysis" was and what we need to do to confirm and assess it. As a result, our time has been spent discussing the parameters of the assignment, rather than working on the assignment itself. I believe that we will be better able to define the scope of this item and move to substance, if we spend some time looking at the substance of an issue that is clearly within our scope.
After we finish clarifying the multiple layers of jurisdiction, we should move to an issue that is clearly within our scope -- something we have to do. That way we can move to the substance of the issue and not spend a lot of time on "scope."
An issue that is clearly within our scope relates to ICANN's jurisdictions for settlement of disputes (i.e., venue and choice of law). There should not be any question that this is within the scope of our group (Annex 12 refers to this as the "focus" for our group). Based on Annex 12, this involves looking at: "The influence that ICANN’s existing jurisdiction" relating to resolution of disputes "may have on the actual operation of policies and accountability mechanisms." I suggest that we examine this "influence" and determine what this "influence" is. Our work looking at venue and choice of law in the "multiple layers of jurisdiction" will help us in this task.
A note on process -- it is very important that we focus on creating written material. In our calls, we should be working on and working from these written materials. Ultimately, these writings will feed into our deliverable. Put another way, you should focus your contributions on adding to the drafts (currently, the "layers of jurisdiction" document), rather than on relying solely on oral interventions in our calls -- after all we have 168 hours in a week, and only 1 hour for our call.
I look forward to our upcoming call.
Best regards,
Greg _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
On Monday 10 October 2016 10:28 AM, Greg Shatan wrote:
All,
In order to move forward, and based on the discussions so far, I suggest the following approach.
First, we should continue the current approach of defining and refining the various layers of jurisdiction, and I encourage you all to go to the Google doc and add your views. https://docs.google.com/document/d/1oE9xDIAJhr4Nx7vNO_mWotSXuUtTgJMRs6U92yTg... <https://docs.google.com/document/d/1oE9xDIAJhr4Nx7vNO_mWotSXuUtTgJMRs6U92yTg...>
Second, we won't investigate changing ICANN's headquarters or incorporation jurisdiction at this time. However, it's not off the table -- if we identify an issue during our work and we can't find a less drastic way to deal with that issue, we will revisit this point at that time. We can then revisit the concerns that people have raised regarding such a recommendation in the context of a particular issue.
While I can always insert this in the Google doc, I prefer to first discuss this here. (And yes I am repeating it.) The jurisdiction issue is best divided as (1) application of public law, (2) application of private law, (3) the rest of sundry stuff - like about different global offices and interaction with respective domestic jurisdiction (these are of relatively minor significance, and there may not be much to 'decide' about them in advance) Place of incorporation and location of HQ (which is almost always the same) may be the proxy for 'application of public law' but they do not necessarily conflate. US government by decree has given jurisdictional immunities even to such bodies that are *not* created under international law and simply registered as private bodies, in the US or elsewhere. This certainly is an important possibility to look into for ICANN, which insulates it from application of US public law - in terms of its key organisational activities -- without moving the headquarters or even jurisdiction of incorporation. I will repeat the question I put to the chairs in my last email: "are we considering this issue of application of US public law to ICANN, and the problems that it may cause with respect to its policy processes, and being able to appropriately carry out its global governance role? " The concerns around application of public law are very different than those of application of private law -- and often different actors have these two different kinds of concerns. Public law also have application over private law cases. If this group does not intend to get into the 'application of public law' question and stick to issues of private law, then let it decide and state as much in clear terms. Such actors whose interest in the jurisdiction question comes primarily from the public law aspect can then disengage from spending further time in this process - as for instance I will like to do.
Third, we should put aside "confirming and assessing the gap analysis" for the moment. There is still a diversity of views on what this "gap analysis" was and what we need to do to confirm and assess it. As a result, our time has been spent discussing the parameters of the assignment, rather than working on the assignment itself. I believe that we will be better able to define the scope of this item and move to substance, if we spend some time looking at the substance of an issue that is clearly within our scope.
After we finish clarifying the multiple layers of jurisdiction, we should move to an issue that is clearly within our scope -- something we have to do. That way we can move to the substance of the issue and not spend a lot of time on "scope."
An issue that is clearly within our scope relates to ICANN's jurisdictions for settlement of disputes (i.e., venue and choice of law).
One way is to look at this is as concerning the application of private law on iCANN matters. But then, like in the case of .xxx, what if the dispute invokes a public law (US competition law in this instance) -- which one can be assured that every disputant will do as long as it can find a favourable US public law which seems to side with the way the disputant wants things to go. As we explore the issue of 'settlement of disputes' are we going to look only to private law part and not public law? That IMHO would be quite inappropriate. But then if we are going to look into both private law and public law elements, the discussion gets messy because private law can involve choice of jurisdiction but not public law. This is why I think it is best if we divide our work and discussions as I suggested above, separately about issues of public law and those of private law. But, as I said before, issues of public law are simply out, let us then be clear about it. I request a clarification by the chairs.
There should not be any question that this is within the scope of our group (Annex 12 refers to this as the "focus" for our group). Based on Annex 12, this involves looking at: "The influence that ICANN’s existing jurisdiction" relating to resolution of disputes "may have on the actual operation of policies
Application of US public law on ICANN has enormous influence on 'actual operation of (ICANN) policies'. And so we are very much within our mandate in discussing issues arising from 'public law' aspect.
and accountability mechanisms." I suggest that we examine this "influence" and determine what this "influence" is. Our work looking at venue and choice of law in the "multiple layers of jurisdiction" will help us in this task.
I gave a few instances in my last email of influence of US public law on operation of ICANN policies. Would these examples qualify to be considered under this or not?
A note on process -- it is very important that we focus on creating written material. In our calls, we should be working on and working from these written materials. Ultimately, these writings will feed into our deliverable. Put another way, you should focus your contributions on adding to the drafts (currently, the "layers of jurisdiction" document), rather than on relying solely on oral interventions in our calls -- after all we have 168 hours in a week, and only 1 hour for our call.
I agree. Calls can only help confirm or resolve some outstanding issues, and lay further directions. What we can accomplish in writing we should do. In that regard, I also think that to th extent issues can be addressed and resolved in email exchanges here they best be done so... Thanks, parminder
I look forward to our upcoming call.
Best regards,
Greg
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
I don't think the question of public law is out of consideration. There is much talk of "applicable [public] law" when we consider dispute resolution/choice of law, for example. However, it is not clear how those issues fit into the "jurisdiction layer" model that seems to be clarifying and driving our agenda. So I hope Greg and Vinay can weigh in on that issue for us. If I understand you correctly, public law issues are analogous to a "stress test;" there is no major issue with it now, but we need to explore how the new ICANN regime will react if something happens. E.g., the European Commission opens an antitrust investigation into ICANN, or a (unlikely) Trump administration pushes a bill through Congress re-regulating ICANN From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Tuesday, October 11, 2016 3:59 AM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Our work so far, and a way forward On Monday 10 October 2016 10:28 AM, Greg Shatan wrote: All, In order to move forward, and based on the discussions so far, I suggest the following approach. First, we should continue the current approach of defining and refining the various layers of jurisdiction, and I encourage you all to go to the Google doc and add your views. https://docs.google.com/document/d/1oE9xDIAJhr4Nx7vNO_mWotSXuUtTgJMRs6U92yTg... Second, we won't investigate changing ICANN's headquarters or incorporation jurisdiction at this time. However, it's not off the table -- if we identify an issue during our work and we can't find a less drastic way to deal with that issue, we will revisit this point at that time. We can then revisit the concerns that people have raised regarding such a recommendation in the context of a particular issue. While I can always insert this in the Google doc, I prefer to first discuss this here. (And yes I am repeating it.) The jurisdiction issue is best divided as (1) application of public law, (2) application of private law, (3) the rest of sundry stuff - like about different global offices and interaction with respective domestic jurisdiction (these are of relatively minor significance, and there may not be much to 'decide' about them in advance) Place of incorporation and location of HQ (which is almost always the same) may be the proxy for 'application of public law' but they do not necessarily conflate. US government by decree has given jurisdictional immunities even to such bodies that are *not* created under international law and simply registered as private bodies, in the US or elsewhere. This certainly is an important possibility to look into for ICANN, which insulates it from application of US public law - in terms of its key organisational activities -- without moving the headquarters or even jurisdiction of incorporation. I will repeat the question I put to the chairs in my last email: "are we considering this issue of application of US public law to ICANN, and the problems that it may cause with respect to its policy processes, and being able to appropriately carry out its global governance role? " The concerns around application of public law are very different than those of application of private law -- and often different actors have these two different kinds of concerns. Public law also have application over private law cases. If this group does not intend to get into the 'application of public law' question and stick to issues of private law, then let it decide and state as much in clear terms. Such actors whose interest in the jurisdiction question comes primarily from the public law aspect can then disengage from spending further time in this process - as for instance I will like to do. Third, we should put aside "confirming and assessing the gap analysis" for the moment. There is still a diversity of views on what this "gap analysis" was and what we need to do to confirm and assess it. As a result, our time has been spent discussing the parameters of the assignment, rather than working on the assignment itself. I believe that we will be better able to define the scope of this item and move to substance, if we spend some time looking at the substance of an issue that is clearly within our scope. After we finish clarifying the multiple layers of jurisdiction, we should move to an issue that is clearly within our scope -- something we have to do. That way we can move to the substance of the issue and not spend a lot of time on "scope." An issue that is clearly within our scope relates to ICANN's jurisdictions for settlement of disputes (i.e., venue and choice of law). One way is to look at this is as concerning the application of private law on iCANN matters. But then, like in the case of .xxx, what if the dispute invokes a public law (US competition law in this instance) -- which one can be assured that every disputant will do as long as it can find a favourable US public law which seems to side with the way the disputant wants things to go. As we explore the issue of 'settlement of disputes' are we going to look only to private law part and not public law? That IMHO would be quite inappropriate. But then if we are going to look into both private law and public law elements, the discussion gets messy because private law can involve choice of jurisdiction but not public law. This is why I think it is best if we divide our work and discussions as I suggested above, separately about issues of public law and those of private law. But, as I said before, issues of public law are simply out, let us then be clear about it. I request a clarification by the chairs. There should not be any question that this is within the scope of our group (Annex 12 refers to this as the "focus" for our group). Based on Annex 12, this involves looking at: "The influence that ICANN's existing jurisdiction" relating to resolution of disputes "may have on the actual operation of policies Application of US public law on ICANN has enormous influence on 'actual operation of (ICANN) policies'. And so we are very much within our mandate in discussing issues arising from 'public law' aspect. and accountability mechanisms." I suggest that we examine this "influence" and determine what this "influence" is. Our work looking at venue and choice of law in the "multiple layers of jurisdiction" will help us in this task. I gave a few instances in my last email of influence of US public law on operation of ICANN policies. Would these examples qualify to be considered under this or not? A note on process -- it is very important that we focus on creating written material. In our calls, we should be working on and working from these written materials. Ultimately, these writings will feed into our deliverable. Put another way, you should focus your contributions on adding to the drafts (currently, the "layers of jurisdiction" document), rather than on relying solely on oral interventions in our calls -- after all we have 168 hours in a week, and only 1 hour for our call. I agree. Calls can only help confirm or resolve some outstanding issues, and lay further directions. What we can accomplish in writing we should do. In that regard, I also think that to th extent issues can be addressed and resolved in email exchanges here they best be done so... Thanks, parminder I look forward to our upcoming call. Best regards, Greg _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Although I am a properly licensed attorney in the United States, I am not clear on what the definition is of "public law" vs. private law. That is not a concept that I am familiar with. Are talking about statutory law vs. common law, or are we talking about private causes of action vs. government causes of action. Sorry, but just trying to wrap my head around this and why it matters. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com> or jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Mueller, Milton L Sent: Tuesday, October 11, 2016 10:51 AM To: parminder <parminder@itforchange.net>; ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Our work so far, and a way forward I don't think the question of public law is out of consideration. There is much talk of "applicable [public] law" when we consider dispute resolution/choice of law, for example. However, it is not clear how those issues fit into the "jurisdiction layer" model that seems to be clarifying and driving our agenda. So I hope Greg and Vinay can weigh in on that issue for us. If I understand you correctly, public law issues are analogous to a "stress test;" there is no major issue with it now, but we need to explore how the new ICANN regime will react if something happens. E.g., the European Commission opens an antitrust investigation into ICANN, or a (unlikely) Trump administration pushes a bill through Congress re-regulating ICANN From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Tuesday, October 11, 2016 3:59 AM To: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Our work so far, and a way forward On Monday 10 October 2016 10:28 AM, Greg Shatan wrote: All, In order to move forward, and based on the discussions so far, I suggest the following approach. First, we should continue the current approach of defining and refining the various layers of jurisdiction, and I encourage you all to go to the Google doc and add your views. https://docs.google.com/document/d/1oE9xDIAJhr4Nx7vNO_mWotSXuUtTgJMRs6U92yTg... Second, we won't investigate changing ICANN's headquarters or incorporation jurisdiction at this time. However, it's not off the table -- if we identify an issue during our work and we can't find a less drastic way to deal with that issue, we will revisit this point at that time. We can then revisit the concerns that people have raised regarding such a recommendation in the context of a particular issue. While I can always insert this in the Google doc, I prefer to first discuss this here. (And yes I am repeating it.) The jurisdiction issue is best divided as (1) application of public law, (2) application of private law, (3) the rest of sundry stuff - like about different global offices and interaction with respective domestic jurisdiction (these are of relatively minor significance, and there may not be much to 'decide' about them in advance) Place of incorporation and location of HQ (which is almost always the same) may be the proxy for 'application of public law' but they do not necessarily conflate. US government by decree has given jurisdictional immunities even to such bodies that are *not* created under international law and simply registered as private bodies, in the US or elsewhere. This certainly is an important possibility to look into for ICANN, which insulates it from application of US public law - in terms of its key organisational activities -- without moving the headquarters or even jurisdiction of incorporation. I will repeat the question I put to the chairs in my last email: "are we considering this issue of application of US public law to ICANN, and the problems that it may cause with respect to its policy processes, and being able to appropriately carry out its global governance role? " The concerns around application of public law are very different than those of application of private law -- and often different actors have these two different kinds of concerns. Public law also have application over private law cases. If this group does not intend to get into the 'application of public law' question and stick to issues of private law, then let it decide and state as much in clear terms. Such actors whose interest in the jurisdiction question comes primarily from the public law aspect can then disengage from spending further time in this process - as for instance I will like to do. Third, we should put aside "confirming and assessing the gap analysis" for the moment. There is still a diversity of views on what this "gap analysis" was and what we need to do to confirm and assess it. As a result, our time has been spent discussing the parameters of the assignment, rather than working on the assignment itself. I believe that we will be better able to define the scope of this item and move to substance, if we spend some time looking at the substance of an issue that is clearly within our scope. After we finish clarifying the multiple layers of jurisdiction, we should move to an issue that is clearly within our scope -- something we have to do. That way we can move to the substance of the issue and not spend a lot of time on "scope." An issue that is clearly within our scope relates to ICANN's jurisdictions for settlement of disputes (i.e., venue and choice of law). One way is to look at this is as concerning the application of private law on iCANN matters. But then, like in the case of .xxx, what if the dispute invokes a public law (US competition law in this instance) -- which one can be assured that every disputant will do as long as it can find a favourable US public law which seems to side with the way the disputant wants things to go. As we explore the issue of 'settlement of disputes' are we going to look only to private law part and not public law? That IMHO would be quite inappropriate. But then if we are going to look into both private law and public law elements, the discussion gets messy because private law can involve choice of jurisdiction but not public law. This is why I think it is best if we divide our work and discussions as I suggested above, separately about issues of public law and those of private law. But, as I said before, issues of public law are simply out, let us then be clear about it. I request a clarification by the chairs. There should not be any question that this is within the scope of our group (Annex 12 refers to this as the "focus" for our group). Based on Annex 12, this involves looking at: "The influence that ICANN's existing jurisdiction" relating to resolution of disputes "may have on the actual operation of policies Application of US public law on ICANN has enormous influence on 'actual operation of (ICANN) policies'. And so we are very much within our mandate in discussing issues arising from 'public law' aspect. and accountability mechanisms." I suggest that we examine this "influence" and determine what this "influence" is. Our work looking at venue and choice of law in the "multiple layers of jurisdiction" will help us in this task. I gave a few instances in my last email of influence of US public law on operation of ICANN policies. Would these examples qualify to be considered under this or not? A note on process -- it is very important that we focus on creating written material. In our calls, we should be working on and working from these written materials. Ultimately, these writings will feed into our deliverable. Put another way, you should focus your contributions on adding to the drafts (currently, the "layers of jurisdiction" document), rather than on relying solely on oral interventions in our calls -- after all we have 168 hours in a week, and only 1 hour for our call. I agree. Calls can only help confirm or resolve some outstanding issues, and lay further directions. What we can accomplish in writing we should do. In that regard, I also think that to th extent issues can be addressed and resolved in email exchanges here they best be done so... Thanks, parminder I look forward to our upcoming call. Best regards, Greg _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Public law is legislation/court precedent, private law is contract. From: Jeff Neuman [mailto:jeff.neuman@comlaude.com] Sent: Tuesday, October 11, 2016 11:20 AM To: Mueller, Milton L <milton@gatech.edu>; parminder <parminder@itforchange.net>; ws2-jurisdiction@icann.org Subject: RE: [Ws2-jurisdiction] Our work so far, and a way forward Although I am a properly licensed attorney in the United States, I am not clear on what the definition is of "public law" vs. private law. That is not a concept that I am familiar with. Are talking about statutory law vs. common law, or are we talking about private causes of action vs. government causes of action. Sorry, but just trying to wrap my head around this and why it matters. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com> or jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Mueller, Milton L Sent: Tuesday, October 11, 2016 10:51 AM To: parminder <parminder@itforchange.net<mailto:parminder@itforchange.net>>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Our work so far, and a way forward I don't think the question of public law is out of consideration. There is much talk of "applicable [public] law" when we consider dispute resolution/choice of law, for example. However, it is not clear how those issues fit into the "jurisdiction layer" model that seems to be clarifying and driving our agenda. So I hope Greg and Vinay can weigh in on that issue for us. If I understand you correctly, public law issues are analogous to a "stress test;" there is no major issue with it now, but we need to explore how the new ICANN regime will react if something happens. E.g., the European Commission opens an antitrust investigation into ICANN, or a (unlikely) Trump administration pushes a bill through Congress re-regulating ICANN From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Tuesday, October 11, 2016 3:59 AM To: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Our work so far, and a way forward On Monday 10 October 2016 10:28 AM, Greg Shatan wrote: All, In order to move forward, and based on the discussions so far, I suggest the following approach. First, we should continue the current approach of defining and refining the various layers of jurisdiction, and I encourage you all to go to the Google doc and add your views. https://docs.google.com/document/d/1oE9xDIAJhr4Nx7vNO_mWotSXuUtTgJMRs6U92yTg... Second, we won't investigate changing ICANN's headquarters or incorporation jurisdiction at this time. However, it's not off the table -- if we identify an issue during our work and we can't find a less drastic way to deal with that issue, we will revisit this point at that time. We can then revisit the concerns that people have raised regarding such a recommendation in the context of a particular issue. While I can always insert this in the Google doc, I prefer to first discuss this here. (And yes I am repeating it.) The jurisdiction issue is best divided as (1) application of public law, (2) application of private law, (3) the rest of sundry stuff - like about different global offices and interaction with respective domestic jurisdiction (these are of relatively minor significance, and there may not be much to 'decide' about them in advance) Place of incorporation and location of HQ (which is almost always the same) may be the proxy for 'application of public law' but they do not necessarily conflate. US government by decree has given jurisdictional immunities even to such bodies that are *not* created under international law and simply registered as private bodies, in the US or elsewhere. This certainly is an important possibility to look into for ICANN, which insulates it from application of US public law - in terms of its key organisational activities -- without moving the headquarters or even jurisdiction of incorporation. I will repeat the question I put to the chairs in my last email: "are we considering this issue of application of US public law to ICANN, and the problems that it may cause with respect to its policy processes, and being able to appropriately carry out its global governance role? " The concerns around application of public law are very different than those of application of private law -- and often different actors have these two different kinds of concerns. Public law also have application over private law cases. If this group does not intend to get into the 'application of public law' question and stick to issues of private law, then let it decide and state as much in clear terms. Such actors whose interest in the jurisdiction question comes primarily from the public law aspect can then disengage from spending further time in this process - as for instance I will like to do. Third, we should put aside "confirming and assessing the gap analysis" for the moment. There is still a diversity of views on what this "gap analysis" was and what we need to do to confirm and assess it. As a result, our time has been spent discussing the parameters of the assignment, rather than working on the assignment itself. I believe that we will be better able to define the scope of this item and move to substance, if we spend some time looking at the substance of an issue that is clearly within our scope. After we finish clarifying the multiple layers of jurisdiction, we should move to an issue that is clearly within our scope -- something we have to do. That way we can move to the substance of the issue and not spend a lot of time on "scope." An issue that is clearly within our scope relates to ICANN's jurisdictions for settlement of disputes (i.e., venue and choice of law). One way is to look at this is as concerning the application of private law on iCANN matters. But then, like in the case of .xxx, what if the dispute invokes a public law (US competition law in this instance) -- which one can be assured that every disputant will do as long as it can find a favourable US public law which seems to side with the way the disputant wants things to go. As we explore the issue of 'settlement of disputes' are we going to look only to private law part and not public law? That IMHO would be quite inappropriate. But then if we are going to look into both private law and public law elements, the discussion gets messy because private law can involve choice of jurisdiction but not public law. This is why I think it is best if we divide our work and discussions as I suggested above, separately about issues of public law and those of private law. But, as I said before, issues of public law are simply out, let us then be clear about it. I request a clarification by the chairs. There should not be any question that this is within the scope of our group (Annex 12 refers to this as the "focus" for our group). Based on Annex 12, this involves looking at: "The influence that ICANN's existing jurisdiction" relating to resolution of disputes "may have on the actual operation of policies Application of US public law on ICANN has enormous influence on 'actual operation of (ICANN) policies'. And so we are very much within our mandate in discussing issues arising from 'public law' aspect. and accountability mechanisms." I suggest that we examine this "influence" and determine what this "influence" is. Our work looking at venue and choice of law in the "multiple layers of jurisdiction" will help us in this task. I gave a few instances in my last email of influence of US public law on operation of ICANN policies. Would these examples qualify to be considered under this or not? A note on process -- it is very important that we focus on creating written material. In our calls, we should be working on and working from these written materials. Ultimately, these writings will feed into our deliverable. Put another way, you should focus your contributions on adding to the drafts (currently, the "layers of jurisdiction" document), rather than on relying solely on oral interventions in our calls -- after all we have 168 hours in a week, and only 1 hour for our call. I agree. Calls can only help confirm or resolve some outstanding issues, and lay further directions. What we can accomplish in writing we should do. In that regard, I also think that to th extent issues can be addressed and resolved in email exchanges here they best be done so... Thanks, parminder I look forward to our upcoming call. Best regards, Greg _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
I echo Jeff's question. Milton's definition is one possible one, but I'm not sure that is what Parminder means. I agree that Milton's tracks my general understanding of how those terms might be used in a U.S. common law context. All US legislation is considered "Public Law". However, five minutes of Google searching reveals significantly different uses. It appears that in Civil law, stemming from Roman law, the terms are used define (i) laws governing the activities of the state and the interaction between the state and the individual or private entity vs. laws governing the activities of individuals/private entities and their interaction with each other. In International law, "international public law" governs the actions of nations (but may in the case of treaties be turned into laws that govern the actions of individuals), while "international private law" applies directly to the acts of individuals and business entities. There also appears to be a usage of these two terms based on how the laws are enforced -- a public law is one enforced by the state, while a private law is enforced by one individual/entity against another. However, there are many laws (at least in the US) that offer both state and private causes of action (e.g., both Department of Justice or a private plaintiff can bring a claim under the Americans with Disabilities Act). While criminal laws can only be enforced by the State (on behalf of the People), many criminal laws have civil law counterparts (e.g., murder/manslaughter vs. wrongful death, theft vs. conversion, etc. Broadly, Tort law is a series of private causes of action that are roughly equivalent with criminal causes of action); of course, imprisonment is exclusively a criminal law remedy (at least in the US). There are also concepts (such as Qui Tam and Article 78 proceedings) where state action can either be started or challenged by private actors under certain circumstances; these further blur the public/private distinction in this system of classification.. Finally, looking at various items found in the search, it appears that there are some countries (both civil and common law jurisdictions) where this classification is actively used, and others where it is not. So it is neither universal, nor understood the same way when it is used. *Parminder, Can you clarify what you mean by "public law" and "private law"? Without a better understanding, it would be premature to answer your question. Alternatively, you could rephrase this without reliance on a public law/private law dichotomy. Thanks!* Greg On Tue, Oct 11, 2016 at 11:21 AM, Mueller, Milton L <milton@gatech.edu> wrote:
Public law is legislation/court precedent, private law is contract.
*From:* Jeff Neuman [mailto:jeff.neuman@comlaude.com] *Sent:* Tuesday, October 11, 2016 11:20 AM *To:* Mueller, Milton L <milton@gatech.edu>; parminder < parminder@itforchange.net>; ws2-jurisdiction@icann.org *Subject:* RE: [Ws2-jurisdiction] Our work so far, and a way forward
Although I am a properly licensed attorney in the United States, I am not clear on what the definition is of “public law” vs. private law. That is not a concept that I am familiar with. Are talking about statutory law vs. common law, or are we talking about private causes of action vs. government causes of action.
Sorry, but just trying to wrap my head around this and why it matters.
*Jeffrey J. Neuman*
*Senior Vice President *|*Valideus USA* | *Com Laude USA*
1751 Pinnacle Drive, Suite 600
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T: +1.703.635.7514
M: +1.202.549.5079
@Jintlaw
*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Mueller, Milton L *Sent:* Tuesday, October 11, 2016 10:51 AM *To:* parminder <parminder@itforchange.net>; ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] Our work so far, and a way forward
I don’t think the question of public law is out of consideration. There is much talk of “applicable [public] law” when we consider dispute resolution/choice of law, for example. However, it is not clear how those issues fit into the “jurisdiction layer” model that seems to be clarifying and driving our agenda. So I hope Greg and Vinay can weigh in on that issue for us.
If I understand you correctly, public law issues are analogous to a “stress test;” there is no major issue with it now, but we need to explore how the new ICANN regime will react if something happens. E.g., the European Commission opens an antitrust investigation into ICANN, or a (unlikely) Trump administration pushes a bill through Congress re-regulating ICANN
*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of * parminder *Sent:* Tuesday, October 11, 2016 3:59 AM *To:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] Our work so far, and a way forward
On Monday 10 October 2016 10:28 AM, Greg Shatan wrote:
All,
In order to move forward, and based on the discussions so far, I suggest the following approach.
First, we should continue the current approach of defining and refining the various layers of jurisdiction, and I encourage you all to go to the Google doc and add your views. https://docs.google.com/ document/d/1oE9xDIAJhr4Nx7vNO_mWotSXuUtTgJMRs6U92yTgOH4/edit?usp=sharing
Second, we won't investigate changing ICANN's headquarters or incorporation jurisdiction at this time. However, it's not off the table -- if we identify an issue during our work and we can't find a less drastic way to deal with that issue, we will revisit this point at that time. We can then revisit the concerns that people have raised regarding such a recommendation in the context of a particular issue.
While I can always insert this in the Google doc, I prefer to first discuss this here. (And yes I am repeating it.) The jurisdiction issue is best divided as (1) application of public law, (2) application of private law, (3) the rest of sundry stuff - like about different global offices and interaction with respective domestic jurisdiction (these are of relatively minor significance, and there may not be much to 'decide' about them in advance)
Place of incorporation and location of HQ (which is almost always the same) may be the proxy for 'application of public law' but they do not necessarily conflate. US government by decree has given jurisdictional immunities even to such bodies that are *not* created under international law and simply registered as private bodies, in the US or elsewhere. This certainly is an important possibility to look into for ICANN, which insulates it from application of US public law - in terms of its key organisational activities -- without moving the headquarters or even jurisdiction of incorporation.
I will repeat the question I put to the chairs in my last email: "are we considering this issue of application of US public law to ICANN, and the problems that it may cause with respect to its policy processes, and being able to appropriately carry out its global governance role? "
The concerns around application of public law are very different than those of application of private law -- and often different actors have these two different kinds of concerns. Public law also have application over private law cases.
If this group does not intend to get into the 'application of public law' question and stick to issues of private law, then let it decide and state as much in clear terms. Such actors whose interest in the jurisdiction question comes primarily from the public law aspect can then disengage from spending further time in this process - as for instance I will like to do.
Third, we should put aside "confirming and assessing the gap analysis" for the moment. There is still a diversity of views on what this "gap analysis" was and what we need to do to confirm and assess it. As a result, our time has been spent discussing the parameters of the assignment, rather than working on the assignment itself. I believe that we will be better able to define the scope of this item and move to substance, if we spend some time looking at the substance of an issue that is clearly within our scope.
After we finish clarifying the multiple layers of jurisdiction, we should move to an issue that is clearly within our scope -- something we have to do. That way we can move to the substance of the issue and not spend a lot of time on "scope."
An issue that is clearly within our scope relates to ICANN's jurisdictions for settlement of disputes (i.e., venue and choice of law).
One way is to look at this is as concerning the application of private law on iCANN matters. But then, like in the case of .xxx, what if the dispute invokes a public law (US competition law in this instance) -- which one can be assured that every disputant will do as long as it can find a favourable US public law which seems to side with the way the disputant wants things to go. As we explore the issue of 'settlement of disputes' are we going to look only to private law part and not public law? That IMHO would be quite inappropriate. But then if we are going to look into both private law and public law elements, the discussion gets messy because private law can involve choice of jurisdiction but not public law. This is why I think it is best if we divide our work and discussions as I suggested above, separately about issues of public law and those of private law.
But, as I said before, issues of public law are simply out, let us then be clear about it. I request a clarification by the chairs.
There should not be any question that this is within the scope of our group (Annex 12 refers to this as the "focus" for our group). Based on Annex 12, this involves looking at: "The influence that ICANN’s existing jurisdiction" relating to resolution of disputes "may have on the actual operation of policies
Application of US public law on ICANN has enormous influence on 'actual operation of (ICANN) policies'. And so we are very much within our mandate in discussing issues arising from 'public law' aspect.
and accountability mechanisms." I suggest that we examine this "influence" and determine what this "influence" is. Our work looking at venue and choice of law in the "multiple layers of jurisdiction" will help us in this task.
I gave a few instances in my last email of influence of US public law on operation of ICANN policies. Would these examples qualify to be considered under this or not?
A note on process -- it is very important that we focus on creating written material. In our calls, we should be working on and working from these written materials. Ultimately, these writings will feed into our deliverable. Put another way, you should focus your contributions on adding to the drafts (currently, the "layers of jurisdiction" document), rather than on relying solely on oral interventions in our calls -- after all we have 168 hours in a week, and only 1 hour for our call.
I agree. Calls can only help confirm or resolve some outstanding issues, and lay further directions. What we can accomplish in writing we should do. In that regard, I also think that to th extent issues can be addressed and resolved in email exchanges here they best be done so...
Thanks, parminder
I look forward to our upcoming call.
Best regards,
Greg
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Ws2-jurisdiction mailing list
Ws2-jurisdiction@icann.org
https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
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Thanks Greg, I sent my earlier email before I saw this email of yours, but yes you have rightly picked the key points. There will always be some grey zones and overlaps in areas of social sciences, including legal studies and systems. But the distinction is clear enough to be often spoken of in court judgements and so on. In case of private law, the state has no interest at all in a situation unless a private party seeks enforcement. In case of public law, it is the larger society, or the state on its behalf, which has direct stake and interest in the issue, and can take up the matter suo motto, or on it being brought to its notice by an individual. With regard to our current discussion, the element of 'choice of jurisdiction' becomes important in showing an important difference between these two kinds of laws. In case of public law, there is simply no choice of jurisdiction ever. You attach yourself to a society, you are subject to its public law. No choices here. But in case of private law there can be, though not always, the possibility of choice of jurisdiction, like two parties entering a contract mutually agreeing on a particular jurisdiction for dispute resolution. Therefore these two classes of laws have to be discussed separately when we do the jurisdiction discussion - they admit of entirely different treatment. Public law application in fully and inextricably linked to place of incorporation/ HQ location/ substantial physical operations. In many important cases of private law however there can be a choice, and how this choice can and should be exercised will be a distinct area of discussion and recommendation of this group. However, the discussion and possible recommendation will have to be entirely different is case there is no choice of jurisdiction involved, which is true for application of public law. parmidner On Tuesday 11 October 2016 09:11 PM, Greg Shatan wrote:
I echo Jeff's question.
Milton's definition is one possible one, but I'm not sure that is what Parminder means. I agree that Milton's tracks my general understanding of how those terms might be used in a U.S. common law context. All US legislation is considered "Public Law".
However, five minutes of Google searching reveals significantly different uses. It appears that in Civil law, stemming from Roman law, the terms are used define (i) laws governing the activities of the state and the interaction between the state and the individual or private entity vs. laws governing the activities of individuals/private entities and their interaction with each other.
In International law, "international public law" governs the actions of nations (but may in the case of treaties be turned into laws that govern the actions of individuals), while "international private law" applies directly to the acts of individuals and business entities.
There also appears to be a usage of these two terms based on how the laws are enforced -- a public law is one enforced by the state, while a private law is enforced by one individual/entity against another. However, there are many laws (at least in the US) that offer both state and private causes of action (e.g., both Department of Justice or a private plaintiff can bring a claim under the Americans with Disabilities Act). While criminal laws can only be enforced by the State (on behalf of the People), many criminal laws have civil law counterparts (e.g., murder/manslaughter vs. wrongful death, theft vs. conversion, etc. Broadly, Tort law is a series of private causes of action that are roughly equivalent with criminal causes of action); of course, imprisonment is exclusively a criminal law remedy (at least in the US). There are also concepts (such as Qui Tam and Article 78 proceedings) where state action can either be started or challenged by private actors under certain circumstances; these further blur the public/private distinction in this system of classification..
Finally, looking at various items found in the search, it appears that there are some countries (both civil and common law jurisdictions) where this classification is actively used, and others where it is not. So it is neither universal, nor understood the same way when it is used.
*Parminder, Can you clarify what you mean by "public law" and "private law"? Without a better understanding, it would be premature to answer your question. Alternatively, you could rephrase this without reliance on a public law/private law dichotomy. Thanks!* * * Greg
On Tue, Oct 11, 2016 at 11:21 AM, Mueller, Milton L <milton@gatech.edu <mailto:milton@gatech.edu>> wrote:
Public law is legislation/court precedent, private law is contract.
*From:*Jeff Neuman [mailto:jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com>] *Sent:* Tuesday, October 11, 2016 11:20 AM *To:* Mueller, Milton L <milton@gatech.edu <mailto:milton@gatech.edu>>; parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>>; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* RE: [Ws2-jurisdiction] Our work so far, and a way forward
Although I am a properly licensed attorney in the United States, I am not clear on what the definition is of “public law” vs. private law. That is not a concept that I am familiar with. Are talking about statutory law vs. common law, or are we talking about private causes of action vs. government causes of action.
Sorry, but just trying to wrap my head around this and why it matters.
*Jeffrey J. Neuman*
*Senior Vice President *|*Valideus USA***| *Com Laude USA*
1751 Pinnacle Drive, Suite 600
Mclean, VA 22102, United States
E: jeff.neuman@valideus.com <mailto:jeff.neuman@valideus.com>or jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com>
T: +1.703.635.7514 <tel:%2B1.703.635.7514>
M: +1.202.549.5079 <tel:%2B1.202.549.5079>
@Jintlaw
*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Mueller, Milton L *Sent:* Tuesday, October 11, 2016 10:51 AM *To:* parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>>; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Our work so far, and a way forward
I don’t think the question of public law is out of consideration. There is much talk of “applicable [public] law” when we consider dispute resolution/choice of law, for example. However, it is not clear how those issues fit into the “jurisdiction layer” model that seems to be clarifying and driving our agenda. So I hope Greg and Vinay can weigh in on that issue for us.
If I understand you correctly, public law issues are analogous to a “stress test;” there is no major issue with it now, but we need to explore how the new ICANN regime will react if something happens. E.g., the European Commission opens an antitrust investigation into ICANN, or a (unlikely) Trump administration pushes a bill through Congress re-regulating ICANN
*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *parminder *Sent:* Tuesday, October 11, 2016 3:59 AM *To:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Our work so far, and a way forward
On Monday 10 October 2016 10:28 AM, Greg Shatan wrote:
All,
In order to move forward, and based on the discussions so far, I suggest the following approach.
First, we should continue the current approach of defining and refining the various layers of jurisdiction, and I encourage you all to go to the Google doc and add your views. https://docs.google.com/document/d/1oE9xDIAJhr4Nx7vNO_mWotSXuUtTgJMRs6U92yTg... <https://docs.google.com/document/d/1oE9xDIAJhr4Nx7vNO_mWotSXuUtTgJMRs6U92yTg...>
Second, we won't investigate changing ICANN's headquarters or incorporation jurisdiction at this time. However, it's not off the table -- if we identify an issue during our work and we can't find a less drastic way to deal with that issue, we will revisit this point at that time. We can then revisit the concerns that people have raised regarding such a recommendation in the context of a particular issue.
While I can always insert this in the Google doc, I prefer to first discuss this here. (And yes I am repeating it.) The jurisdiction issue is best divided as (1) application of public law, (2) application of private law, (3) the rest of sundry stuff - like about different global offices and interaction with respective domestic jurisdiction (these are of relatively minor significance, and there may not be much to 'decide' about them in advance)
Place of incorporation and location of HQ (which is almost always the same) may be the proxy for 'application of public law' but they do not necessarily conflate. US government by decree has given jurisdictional immunities even to such bodies that are *not* created under international law and simply registered as private bodies, in the US or elsewhere. This certainly is an important possibility to look into for ICANN, which insulates it from application of US public law - in terms of its key organisational activities -- without moving the headquarters or even jurisdiction of incorporation.
I will repeat the question I put to the chairs in my last email: "are we considering this issue of application of US public law to ICANN, and the problems that it may cause with respect to its policy processes, and being able to appropriately carry out its global governance role? "
The concerns around application of public law are very different than those of application of private law -- and often different actors have these two different kinds of concerns. Public law also have application over private law cases.
If this group does not intend to get into the 'application of public law' question and stick to issues of private law, then let it decide and state as much in clear terms. Such actors whose interest in the jurisdiction question comes primarily from the public law aspect can then disengage from spending further time in this process - as for instance I will like to do.
Third, we should put aside "confirming and assessing the gap analysis" for the moment. There is still a diversity of views on what this "gap analysis" was and what we need to do to confirm and assess it. As a result, our time has been spent discussing the parameters of the assignment, rather than working on the assignment itself. I believe that we will be better able to define the scope of this item and move to substance, if we spend some time looking at the substance of an issue that is clearly within our scope.
After we finish clarifying the multiple layers of jurisdiction, we should move to an issue that is clearly within our scope -- something we have to do. That way we can move to the substance of the issue and not spend a lot of time on "scope."
An issue that is clearly within our scope relates to ICANN's jurisdictions for settlement of disputes (i.e., venue and choice of law).
One way is to look at this is as concerning the application of private law on iCANN matters. But then, like in the case of .xxx, what if the dispute invokes a public law (US competition law in this instance) -- which one can be assured that every disputant will do as long as it can find a favourable US public law which seems to side with the way the disputant wants things to go. As we explore the issue of 'settlement of disputes' are we going to look only to private law part and not public law? That IMHO would be quite inappropriate. But then if we are going to look into both private law and public law elements, the discussion gets messy because private law can involve choice of jurisdiction but not public law. This is why I think it is best if we divide our work and discussions as I suggested above, separately about issues of public law and those of private law.
But, as I said before, issues of public law are simply out, let us then be clear about it. I request a clarification by the chairs.
There should not be any question that this is within the scope of our group (Annex 12 refers to this as the "focus" for our group). Based on Annex 12, this involves looking at: "The influence that ICANN’s existing jurisdiction" relating to resolution of disputes "may have on the actual operation of policies
Application of US public law on ICANN has enormous influence on 'actual operation of (ICANN) policies'. And so we are very much within our mandate in discussing issues arising from 'public law' aspect.
and accountability mechanisms." I suggest that we examine this "influence" and determine what this "influence" is. Our work looking at venue and choice of law in the "multiple layers of jurisdiction" will help us in this task.
I gave a few instances in my last email of influence of US public law on operation of ICANN policies. Would these examples qualify to be considered under this or not?
A note on process -- it is very important that we focus on creating written material. In our calls, we should be working on and working from these written materials. Ultimately, these writings will feed into our deliverable. Put another way, you should focus your contributions on adding to the drafts (currently, the "layers of jurisdiction" document), rather than on relying solely on oral interventions in our calls -- after all we have 168 hours in a week, and only 1 hour for our call.
I agree. Calls can only help confirm or resolve some outstanding issues, and lay further directions. What we can accomplish in writing we should do. In that regard, I also think that to th extent issues can be addressed and resolved in email exchanges here they best be done so...
Thanks, parminder
I look forward to our upcoming call.
Best regards,
Greg
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https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>
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While you have given us a richer sense of the nuances, Greg, I don’t see any serious disjunction in meaning here. I think it is a waste of time to get too hung up on Parminder’s use of the public/private dichotomy. His concerns are clear based on the specific examples he provided of issues (OFAC, antitrust, etc.) in the message I just replied to. It appears that in Civil law, stemming from Roman law, the terms are used define (i) laws governing the activities of the state and the interaction between the state and the individual or private entity vs. laws governing the activities of individuals/private entities and their interaction with each other. MM: That sounds _very similar_ to my statement that public law is legislation/court precedent, private law is contract. “Laws governing the activities of the state and the interaction between the state and the individual or private entity” sounds a lot like legislation and government regulation to me; “laws governing the activities of individuals/private entities and their interaction with each other” sounds a lot like contract. In International law, "international public law" governs the actions of nations (but may in the case of treaties be turned into laws that govern the actions of individuals), while "international private law" applies directly to the acts of individuals and business entities. MM: Forget about international public law. That gets us into treaties; fortunately we are out of that realm. There also appears to be a usage of these two terms based on how the laws are enforced -- a public law is one enforced by the state, while a private law is enforced by one individual/entity against another. However, there are many laws (at least in the US) that offer both state and private causes of action (e.g., both Department of Justice or a private plaintiff can bring a claim under the Americans with Disabilities Act). MM: But the ADA is clearly public law. Parminder, Can you clarify what you mean by "public law" and "private law"? Without a better understanding, it would be premature to answer your question. Alternatively, you could rephrase this without reliance on a public law/private law dichotomy. Thanks!
On Tuesday 11 October 2016 10:22 PM, Mueller, Milton L wrote:
While you have given us a richer sense of the nuances, Greg, I don’t see any serious disjunction in meaning here. I think it is a waste of time to get too hung up on Parminder’s use of the public/private dichotomy. His concerns are clear based on the specific examples he provided of issues (OFAC, antitrust, etc.) in the message I just replied to.
It appears that in Civil law, stemming from Roman law, the terms are used define (i) laws governing the activities of the state and the interaction between the state and the individual or private entity vs. laws governing the activities of individuals/private entities and their interaction with each other.
MM: That sounds _/very similar/_ to my statement that public law is legislation/court precedent, private law is contract. “Laws governing the activities of the state and the interaction between the state and the individual or private entity” sounds a lot like legislation and government regulation to me; “laws governing the activities of individuals/private entities and their interaction with each other” sounds a lot like contract.
I am happy agree with these - both Greg's and Milton's - descriptions of public versus private law... That is as much clarity we can get for a social-legal concept, and not one of natural sciences.... I dont think I said anything at all different in how I described them, but whatever... parminder ]
In International law, "international public law" governs the actions of nations (but may in the case of treaties be turned into laws that govern the actions of individuals), while "international private law" applies directly to the acts of individuals and business entities.
MM: Forget about international public law. That gets us into treaties; fortunately we are out of that realm.
There also appears to be a usage of these two terms based on how the laws are enforced -- a public law is one enforced by the state, while a private law is enforced by one individual/entity against another. However, there are many laws (at least in the US) that offer both state and private causes of action (e.g., both Department of Justice or a private plaintiff can bring a claim under the Americans with Disabilities Act).
MM: But the ADA is clearly public law.
*Parminder, Can you clarify what you mean by "public law" and "private law"? Without a better understanding, it would be premature to answer your question. Alternatively, you could rephrase this without reliance on a public law/private law dichotomy. Thanks!*
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I would like to clarify one statement that I made earlier, since it seems to have been misunderstood. It appears that in Civil law, stemming from Roman law, the terms are used
define (i) laws governing the activities of the state and the interaction between the state and the individual or private entity vs. laws governing the activities of individuals/private entities and their interaction with each other.
MM: That sounds _*very similar*_ to my statement that public law is legislation/court precedent, private law is contract. “Laws governing the activities of the state and the interaction between the state and the individual or private entity” sounds a lot like legislation and government regulation to me; “laws governing the activities of individuals/private entities and their interaction with each other” sounds a lot like contract.
GS: No, I was actually trying to say something quite different, and make a key distinction between the Civil Law concepts and the Common Law concepts (which Milton correctly stated). I was referring to laws passed by the state *in both instances*, not to party-made "law" in contracts (which are really "rules of engagement" and only "law" by analogy). I'll revise my sentence slightly:
*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). Greg
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
* * * * * * * *
On Tuesday 11 October 2016 08:49 PM, Jeff Neuman wrote:
Although I am a properly licensed attorney in the United States, I am not clear on what the definition is of “public law” vs. private law. That is not a concept that I am familiar with. Are talking about statutory law vs. common law, or are we talking about private causes of action vs. government causes of action.
Sorry, but just trying to wrap my head around this and why it matters.
Taking the simple descriptions most easily at hand .. *"Private law* is that part of a civil law <https://en.wikipedia.org/wiki/Civil_law_%28legal_system%29> legal system <https://en.wikipedia.org/wiki/Legal_system> which is part of the /jus commune <https://en.wikipedia.org/wiki/Jus_commune>/ that involves relationships between individuals, such as the law of contracts <https://en.wikipedia.org/wiki/Contract> or torts <https://en.wikipedia.org/wiki/Tort>^[1] <https://en.wikipedia.org/wiki/Private_law#cite_note-Mattei-1> " https://en.wikipedia.org/wiki/Private_law *"Public law* (lat. /ius publicum/) is that part of law <https://en.wikipedia.org/wiki/Law> which governs relationships between individuals and the government <https://en.wikipedia.org/wiki/Government>, and those relationships between individuals which are of direct concern to society <https://en.wikipedia.org/wiki/Society>.^[1] " <https://en.wikipedia.org/wiki/Public_law#cite_note-oxdic-1> https://en.wikipedia.org/wiki/Public_law parminder
*Jeffrey J. Neuman*
*Senior Vice President *|*Valideus USA***| *Com Laude USA*
1751 Pinnacle Drive, Suite 600
Mclean, VA 22102, United States
E: jeff.neuman@valideus.com <mailto:jeff.neuman@valideus.com>or jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com>
T: +1.703.635.7514
M: +1.202.549.5079
@Jintlaw
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Mueller, Milton L *Sent:* Tuesday, October 11, 2016 10:51 AM *To:* parminder <parminder@itforchange.net>; ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] Our work so far, and a way forward
I don’t think the question of public law is out of consideration. There is much talk of “applicable [public] law” when we consider dispute resolution/choice of law, for example. However, it is not clear how those issues fit into the “jurisdiction layer” model that seems to be clarifying and driving our agenda. So I hope Greg and Vinay can weigh in on that issue for us.
If I understand you correctly, public law issues are analogous to a “stress test;” there is no major issue with it now, but we need to explore how the new ICANN regime will react if something happens. E.g., the European Commission opens an antitrust investigation into ICANN, or a (unlikely) Trump administration pushes a bill through Congress re-regulating ICANN
*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Tuesday, October 11, 2016 3:59 AM *To:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Our work so far, and a way forward
On Monday 10 October 2016 10:28 AM, Greg Shatan wrote:
All,
In order to move forward, and based on the discussions so far, I suggest the following approach.
First, we should continue the current approach of defining and refining the various layers of jurisdiction, and I encourage you all to go to the Google doc and add your views. https://docs.google.com/document/d/1oE9xDIAJhr4Nx7vNO_mWotSXuUtTgJMRs6U92yTg...
Second, we won't investigate changing ICANN's headquarters or incorporation jurisdiction at this time. However, it's not off the table -- if we identify an issue during our work and we can't find a less drastic way to deal with that issue, we will revisit this point at that time. We can then revisit the concerns that people have raised regarding such a recommendation in the context of a particular issue.
While I can always insert this in the Google doc, I prefer to first discuss this here. (And yes I am repeating it.) The jurisdiction issue is best divided as (1) application of public law, (2) application of private law, (3) the rest of sundry stuff - like about different global offices and interaction with respective domestic jurisdiction (these are of relatively minor significance, and there may not be much to 'decide' about them in advance)
Place of incorporation and location of HQ (which is almost always the same) may be the proxy for 'application of public law' but they do not necessarily conflate. US government by decree has given jurisdictional immunities even to such bodies that are *not* created under international law and simply registered as private bodies, in the US or elsewhere. This certainly is an important possibility to look into for ICANN, which insulates it from application of US public law - in terms of its key organisational activities -- without moving the headquarters or even jurisdiction of incorporation.
I will repeat the question I put to the chairs in my last email: "are we considering this issue of application of US public law to ICANN, and the problems that it may cause with respect to its policy processes, and being able to appropriately carry out its global governance role? "
The concerns around application of public law are very different than those of application of private law -- and often different actors have these two different kinds of concerns. Public law also have application over private law cases.
If this group does not intend to get into the 'application of public law' question and stick to issues of private law, then let it decide and state as much in clear terms. Such actors whose interest in the jurisdiction question comes primarily from the public law aspect can then disengage from spending further time in this process - as for instance I will like to do.
Third, we should put aside "confirming and assessing the gap analysis" for the moment. There is still a diversity of views on what this "gap analysis" was and what we need to do to confirm and assess it. As a result, our time has been spent discussing the parameters of the assignment, rather than working on the assignment itself. I believe that we will be better able to define the scope of this item and move to substance, if we spend some time looking at the substance of an issue that is clearly within our scope.
After we finish clarifying the multiple layers of jurisdiction, we should move to an issue that is clearly within our scope -- something we have to do. That way we can move to the substance of the issue and not spend a lot of time on "scope."
An issue that is clearly within our scope relates to ICANN's jurisdictions for settlement of disputes (i.e., venue and choice of law).
One way is to look at this is as concerning the application of private law on iCANN matters. But then, like in the case of .xxx, what if the dispute invokes a public law (US competition law in this instance) -- which one can be assured that every disputant will do as long as it can find a favourable US public law which seems to side with the way the disputant wants things to go. As we explore the issue of 'settlement of disputes' are we going to look only to private law part and not public law? That IMHO would be quite inappropriate. But then if we are going to look into both private law and public law elements, the discussion gets messy because private law can involve choice of jurisdiction but not public law. This is why I think it is best if we divide our work and discussions as I suggested above, separately about issues of public law and those of private law.
But, as I said before, issues of public law are simply out, let us then be clear about it. I request a clarification by the chairs.
There should not be any question that this is within the scope of our group (Annex 12 refers to this as the "focus" for our group). Based on Annex 12, this involves looking at: "The influence that ICANN’s existing jurisdiction" relating to resolution of disputes "may have on the actual operation of policies
Application of US public law on ICANN has enormous influence on 'actual operation of (ICANN) policies'. And so we are very much within our mandate in discussing issues arising from 'public law' aspect.
and accountability mechanisms." I suggest that we examine this "influence" and determine what this "influence" is. Our work looking at venue and choice of law in the "multiple layers of jurisdiction" will help us in this task.
I gave a few instances in my last email of influence of US public law on operation of ICANN policies. Would these examples qualify to be considered under this or not?
A note on process -- it is very important that we focus on creating written material. In our calls, we should be working on and working from these written materials. Ultimately, these writings will feed into our deliverable. Put another way, you should focus your contributions on adding to the drafts (currently, the "layers of jurisdiction" document), rather than on relying solely on oral interventions in our calls -- after all we have 168 hours in a week, and only 1 hour for our call.
I agree. Calls can only help confirm or resolve some outstanding issues, and lay further directions. What we can accomplish in writing we should do. In that regard, I also think that to th extent issues can be addressed and resolved in email exchanges here they best be done so...
Thanks, parminder
I look forward to our upcoming call.
Best regards,
Greg
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Ws2-jurisdiction mailing list
Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org>
Parminder, Your public law Wikipedia article cites only constitutional law, administrative law, criminal law (and perhaps tax law and procedural law) as being part of public law. Is that what you mean? I also note that this describes civil law as follows; "This differs from civil law in that civil actions are disputes between two parties that are not of significant public concern." This is clearly not true in common law countries, where civil law cases form precedent that can have significant public impacts. Your private law wikipedia quote only refers to a civil law legal system. The article (really, a stub) goes on to say "The concept of private law in common law countries is a little more broad, in that it also encompasses private relationships between governments and private individuals or other entities. That is, relationships between governments and individuals based on the law of contract or torts are governed by private law, and are not considered to be within the scope of public law." I'm still not sure how this dichotomy applies here. On Tue, Oct 11, 2016 at 11:44 AM, parminder <parminder@itforchange.net> wrote:
On Tuesday 11 October 2016 08:49 PM, Jeff Neuman wrote:
Although I am a properly licensed attorney in the United States, I am not clear on what the definition is of “public law” vs. private law. That is not a concept that I am familiar with. Are talking about statutory law vs. common law, or are we talking about private causes of action vs. government causes of action.
Sorry, but just trying to wrap my head around this and why it matters.
Taking the simple descriptions most easily at hand ..
*"Private law* is that part of a civil law <https://en.wikipedia.org/wiki/Civil_law_%28legal_system%29> legal system <https://en.wikipedia.org/wiki/Legal_system> which is part of the *jus commune <https://en.wikipedia.org/wiki/Jus_commune>* that involves relationships between individuals, such as the law of contracts <https://en.wikipedia.org/wiki/Contract> or torts <https://en.wikipedia.org/wiki/Tort>[1] <https://en.wikipedia.org/wiki/Private_law#cite_note-Mattei-1>" https://en.wikipedia.org/wiki/Private_law
*"Public law* (lat. *ius publicum*) is that part of law <https://en.wikipedia.org/wiki/Law> which governs relationships between individuals and the government <https://en.wikipedia.org/wiki/Government>, and those relationships between individuals which are of direct concern to society <https://en.wikipedia.org/wiki/Society>.[1] " <https://en.wikipedia.org/wiki/Public_law#cite_note-oxdic-1> https://en.wikipedia.org/wiki/Public_law
parminder
*Jeffrey J. Neuman*
*Senior Vice President *|*Valideus USA* | *Com Laude USA*
1751 Pinnacle Drive, Suite 600
Mclean, VA 22102, United States
E: jeff.neuman@valideus.com or jeff.neuman@comlaude.com
T: +1.703.635.7514
M: +1.202.549.5079
@Jintlaw
*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Mueller, Milton L *Sent:* Tuesday, October 11, 2016 10:51 AM *To:* parminder <parminder@itforchange.net> <parminder@itforchange.net>; ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] Our work so far, and a way forward
I don’t think the question of public law is out of consideration. There is much talk of “applicable [public] law” when we consider dispute resolution/choice of law, for example. However, it is not clear how those issues fit into the “jurisdiction layer” model that seems to be clarifying and driving our agenda. So I hope Greg and Vinay can weigh in on that issue for us.
If I understand you correctly, public law issues are analogous to a “stress test;” there is no major issue with it now, but we need to explore how the new ICANN regime will react if something happens. E.g., the European Commission opens an antitrust investigation into ICANN, or a (unlikely) Trump administration pushes a bill through Congress re-regulating ICANN
*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of * parminder *Sent:* Tuesday, October 11, 2016 3:59 AM *To:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] Our work so far, and a way forward
On Monday 10 October 2016 10:28 AM, Greg Shatan wrote:
All,
In order to move forward, and based on the discussions so far, I suggest the following approach.
First, we should continue the current approach of defining and refining the various layers of jurisdiction, and I encourage you all to go to the Google doc and add your views. https://docs.google.com/ document/d/1oE9xDIAJhr4Nx7vNO_mWotSXuUtTgJMRs6U92yTgOH4/edit?usp=sharing
Second, we won't investigate changing ICANN's headquarters or incorporation jurisdiction at this time. However, it's not off the table -- if we identify an issue during our work and we can't find a less drastic way to deal with that issue, we will revisit this point at that time. We can then revisit the concerns that people have raised regarding such a recommendation in the context of a particular issue.
While I can always insert this in the Google doc, I prefer to first discuss this here. (And yes I am repeating it.) The jurisdiction issue is best divided as (1) application of public law, (2) application of private law, (3) the rest of sundry stuff - like about different global offices and interaction with respective domestic jurisdiction (these are of relatively minor significance, and there may not be much to 'decide' about them in advance)
Place of incorporation and location of HQ (which is almost always the same) may be the proxy for 'application of public law' but they do not necessarily conflate. US government by decree has given jurisdictional immunities even to such bodies that are *not* created under international law and simply registered as private bodies, in the US or elsewhere. This certainly is an important possibility to look into for ICANN, which insulates it from application of US public law - in terms of its key organisational activities -- without moving the headquarters or even jurisdiction of incorporation.
I will repeat the question I put to the chairs in my last email: "are we considering this issue of application of US public law to ICANN, and the problems that it may cause with respect to its policy processes, and being able to appropriately carry out its global governance role? "
The concerns around application of public law are very different than those of application of private law -- and often different actors have these two different kinds of concerns. Public law also have application over private law cases.
If this group does not intend to get into the 'application of public law' question and stick to issues of private law, then let it decide and state as much in clear terms. Such actors whose interest in the jurisdiction question comes primarily from the public law aspect can then disengage from spending further time in this process - as for instance I will like to do.
Third, we should put aside "confirming and assessing the gap analysis" for the moment. There is still a diversity of views on what this "gap analysis" was and what we need to do to confirm and assess it. As a result, our time has been spent discussing the parameters of the assignment, rather than working on the assignment itself. I believe that we will be better able to define the scope of this item and move to substance, if we spend some time looking at the substance of an issue that is clearly within our scope.
After we finish clarifying the multiple layers of jurisdiction, we should move to an issue that is clearly within our scope -- something we have to do. That way we can move to the substance of the issue and not spend a lot of time on "scope."
An issue that is clearly within our scope relates to ICANN's jurisdictions for settlement of disputes (i.e., venue and choice of law).
One way is to look at this is as concerning the application of private law on iCANN matters. But then, like in the case of .xxx, what if the dispute invokes a public law (US competition law in this instance) -- which one can be assured that every disputant will do as long as it can find a favourable US public law which seems to side with the way the disputant wants things to go. As we explore the issue of 'settlement of disputes' are we going to look only to private law part and not public law? That IMHO would be quite inappropriate. But then if we are going to look into both private law and public law elements, the discussion gets messy because private law can involve choice of jurisdiction but not public law. This is why I think it is best if we divide our work and discussions as I suggested above, separately about issues of public law and those of private law.
But, as I said before, issues of public law are simply out, let us then be clear about it. I request a clarification by the chairs.
There should not be any question that this is within the scope of our group (Annex 12 refers to this as the "focus" for our group). Based on Annex 12, this involves looking at: "The influence that ICANN’s existing jurisdiction" relating to resolution of disputes "may have on the actual operation of policies
Application of US public law on ICANN has enormous influence on 'actual operation of (ICANN) policies'. And so we are very much within our mandate in discussing issues arising from 'public law' aspect.
and accountability mechanisms." I suggest that we examine this "influence" and determine what this "influence" is. Our work looking at venue and choice of law in the "multiple layers of jurisdiction" will help us in this task.
I gave a few instances in my last email of influence of US public law on operation of ICANN policies. Would these examples qualify to be considered under this or not?
A note on process -- it is very important that we focus on creating written material. In our calls, we should be working on and working from these written materials. Ultimately, these writings will feed into our deliverable. Put another way, you should focus your contributions on adding to the drafts (currently, the "layers of jurisdiction" document), rather than on relying solely on oral interventions in our calls -- after all we have 168 hours in a week, and only 1 hour for our call.
I agree. Calls can only help confirm or resolve some outstanding issues, and lay further directions. What we can accomplish in writing we should do. In that regard, I also think that to th extent issues can be addressed and resolved in email exchanges here they best be done so...
Thanks, parminder
I look forward to our upcoming call.
Best regards,
Greg
_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction@icann.org
https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
On Tuesday 11 October 2016 09:25 PM, Greg Shatan wrote:
Parminder,
Your public law Wikipedia article cites only constitutional law, administrative law, criminal law (and perhaps tax law and procedural law) as being part of public law. Is that what you mean? I also note that this describes civil law as follows; "This differs from civil law in that civil actions are disputes between two parties that are not of significant public concern." This is clearly not true in common law countries, where civil law cases form precedent that can have significant public impacts.
Your private law wikipedia quote only refers to a civil law legal system. The article (really, a stub) goes on to say "The concept of private law in common law countries is a little more broad, in that it also encompasses private relationships between governments and private individuals or other entities. That is, relationships between governments and individuals based on the law of contract or torts are governed by private law, and are not considered to be within the scope of public law." I have no problem with this broader conception of private law, to include private relationships between govs and individuals and other entities.
I'm still not sure how this dichotomy applies here.
I have done my best to present it, and I fully clear myself both about the nature of distinction and its central salience to the mandate of this group. Rest is up to the chairs and the group. But if disputes about concepts are best dealt by going to 'particulars' you or others could perhaps try and address the specific case scenarios that I presented in my email (what gets described as 'stress test' around here). That may perhaps clarify better. Thanks parminder
On Tue, Oct 11, 2016 at 11:44 AM, parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>> wrote:
On Tuesday 11 October 2016 08:49 PM, Jeff Neuman wrote:
Although I am a properly licensed attorney in the United States, I am not clear on what the definition is of “public law” vs. private law. That is not a concept that I am familiar with. Are talking about statutory law vs. common law, or are we talking about private causes of action vs. government causes of action.
Sorry, but just trying to wrap my head around this and why it matters.
Taking the simple descriptions most easily at hand ..
*"Private law* is that part of a civil law <https://en.wikipedia.org/wiki/Civil_law_%28legal_system%29> legal system <https://en.wikipedia.org/wiki/Legal_system> which is part of the /jus commune <https://en.wikipedia.org/wiki/Jus_commune>/ that involves relationships between individuals, such as the law of contracts <https://en.wikipedia.org/wiki/Contract> or torts <https://en.wikipedia.org/wiki/Tort>^[1] <https://en.wikipedia.org/wiki/Private_law#cite_note-Mattei-1> "
https://en.wikipedia.org/wiki/Private_law <https://en.wikipedia.org/wiki/Private_law>
*"Public law* (lat. /ius publicum/) is that part of law <https://en.wikipedia.org/wiki/Law> which governs relationships between individuals and the government <https://en.wikipedia.org/wiki/Government>, and those relationships between individuals which are of direct concern to society <https://en.wikipedia.org/wiki/Society>.^[1] " <https://en.wikipedia.org/wiki/Public_law#cite_note-oxdic-1> https://en.wikipedia.org/wiki/Public_law <https://en.wikipedia.org/wiki/Public_law>
parminder
*Jeffrey J. Neuman*
*Senior Vice President *|*Valideus USA***| *Com Laude USA*
1751 Pinnacle Drive, Suite 600
Mclean, VA 22102, United States
E: jeff.neuman@valideus.com <mailto:jeff.neuman@valideus.com>or jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com>
T: +1.703.635.7514 <tel:%2B1.703.635.7514>
M: +1.202.549.5079 <tel:%2B1.202.549.5079>
@Jintlaw
*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Mueller, Milton L *Sent:* Tuesday, October 11, 2016 10:51 AM *To:* parminder <parminder@itforchange.net> <mailto:parminder@itforchange.net>; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Our work so far, and a way forward
I don’t think the question of public law is out of consideration. There is much talk of “applicable [public] law” when we consider dispute resolution/choice of law, for example. However, it is not clear how those issues fit into the “jurisdiction layer” model that seems to be clarifying and driving our agenda. So I hope Greg and Vinay can weigh in on that issue for us.
If I understand you correctly, public law issues are analogous to a “stress test;” there is no major issue with it now, but we need to explore how the new ICANN regime will react if something happens. E.g., the European Commission opens an antitrust investigation into ICANN, or a (unlikely) Trump administration pushes a bill through Congress re-regulating ICANN
*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *parminder *Sent:* Tuesday, October 11, 2016 3:59 AM *To:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Our work so far, and a way forward
On Monday 10 October 2016 10:28 AM, Greg Shatan wrote:
All,
In order to move forward, and based on the discussions so far, I suggest the following approach.
First, we should continue the current approach of defining and refining the various layers of jurisdiction, and I encourage you all to go to the Google doc and add your views. https://docs.google.com/document/d/1oE9xDIAJhr4Nx7vNO_mWotSXuUtTgJMRs6U92yTg... <https://docs.google.com/document/d/1oE9xDIAJhr4Nx7vNO_mWotSXuUtTgJMRs6U92yTg...>
Second, we won't investigate changing ICANN's headquarters or incorporation jurisdiction at this time. However, it's not off the table -- if we identify an issue during our work and we can't find a less drastic way to deal with that issue, we will revisit this point at that time. We can then revisit the concerns that people have raised regarding such a recommendation in the context of a particular issue.
While I can always insert this in the Google doc, I prefer to first discuss this here. (And yes I am repeating it.) The jurisdiction issue is best divided as (1) application of public law, (2) application of private law, (3) the rest of sundry stuff - like about different global offices and interaction with respective domestic jurisdiction (these are of relatively minor significance, and there may not be much to 'decide' about them in advance)
Place of incorporation and location of HQ (which is almost always the same) may be the proxy for 'application of public law' but they do not necessarily conflate. US government by decree has given jurisdictional immunities even to such bodies that are *not* created under international law and simply registered as private bodies, in the US or elsewhere. This certainly is an important possibility to look into for ICANN, which insulates it from application of US public law - in terms of its key organisational activities -- without moving the headquarters or even jurisdiction of incorporation.
I will repeat the question I put to the chairs in my last email: "are we considering this issue of application of US public law to ICANN, and the problems that it may cause with respect to its policy processes, and being able to appropriately carry out its global governance role? "
The concerns around application of public law are very different than those of application of private law -- and often different actors have these two different kinds of concerns. Public law also have application over private law cases.
If this group does not intend to get into the 'application of public law' question and stick to issues of private law, then let it decide and state as much in clear terms. Such actors whose interest in the jurisdiction question comes primarily from the public law aspect can then disengage from spending further time in this process - as for instance I will like to do.
Third, we should put aside "confirming and assessing the gap analysis" for the moment. There is still a diversity of views on what this "gap analysis" was and what we need to do to confirm and assess it. As a result, our time has been spent discussing the parameters of the assignment, rather than working on the assignment itself. I believe that we will be better able to define the scope of this item and move to substance, if we spend some time looking at the substance of an issue that is clearly within our scope.
After we finish clarifying the multiple layers of jurisdiction, we should move to an issue that is clearly within our scope -- something we have to do. That way we can move to the substance of the issue and not spend a lot of time on "scope."
An issue that is clearly within our scope relates to ICANN's jurisdictions for settlement of disputes (i.e., venue and choice of law).
One way is to look at this is as concerning the application of private law on iCANN matters. But then, like in the case of .xxx, what if the dispute invokes a public law (US competition law in this instance) -- which one can be assured that every disputant will do as long as it can find a favourable US public law which seems to side with the way the disputant wants things to go. As we explore the issue of 'settlement of disputes' are we going to look only to private law part and not public law? That IMHO would be quite inappropriate. But then if we are going to look into both private law and public law elements, the discussion gets messy because private law can involve choice of jurisdiction but not public law. This is why I think it is best if we divide our work and discussions as I suggested above, separately about issues of public law and those of private law.
But, as I said before, issues of public law are simply out, let us then be clear about it. I request a clarification by the chairs.
There should not be any question that this is within the scope of our group (Annex 12 refers to this as the "focus" for our group). Based on Annex 12, this involves looking at: "The influence that ICANN’s existing jurisdiction" relating to resolution of disputes "may have on the actual operation of policies
Application of US public law on ICANN has enormous influence on 'actual operation of (ICANN) policies'. And so we are very much within our mandate in discussing issues arising from 'public law' aspect.
and accountability mechanisms." I suggest that we examine this "influence" and determine what this "influence" is. Our work looking at venue and choice of law in the "multiple layers of jurisdiction" will help us in this task.
I gave a few instances in my last email of influence of US public law on operation of ICANN policies. Would these examples qualify to be considered under this or not?
A note on process -- it is very important that we focus on creating written material. In our calls, we should be working on and working from these written materials. Ultimately, these writings will feed into our deliverable. Put another way, you should focus your contributions on adding to the drafts (currently, the "layers of jurisdiction" document), rather than on relying solely on oral interventions in our calls -- after all we have 168 hours in a week, and only 1 hour for our call.
I agree. Calls can only help confirm or resolve some outstanding issues, and lay further directions. What we can accomplish in writing we should do. In that regard, I also think that to th extent issues can be addressed and resolved in email exchanges here they best be done so...
Thanks, parminder
I look forward to our upcoming call.
Best regards,
Greg
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I do not know if the US has a different definition, but in the UK 'public law' means law that applies to actions of the Government. So an action in judicial review to overturn an adverse decision by an executive branch decision-maker is an action in public law. On 11/10/16 16:19, Jeff Neuman wrote:
Although I am a properly licensed attorney in the United States, I am not clear on what the definition is of “public law” vs. private law. That is not a concept that I am familiar with. Are talking about statutory law vs. common law, or are we talking about private causes of action vs. government causes of action.
Sorry, but just trying to wrap my head around this and why it matters.
*Jeffrey J. Neuman*
*Senior Vice President *|*Valideus USA***| *Com Laude USA*
1751 Pinnacle Drive, Suite 600
Mclean, VA 22102, United States
E: jeff.neuman@valideus.com <mailto:jeff.neuman@valideus.com>or jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com>
T: +1.703.635.7514
M: +1.202.549.5079
@Jintlaw
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Mueller, Milton L *Sent:* Tuesday, October 11, 2016 10:51 AM *To:* parminder <parminder@itforchange.net>; ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] Our work so far, and a way forward
I don’t think the question of public law is out of consideration. There is much talk of “applicable [public] law” when we consider dispute resolution/choice of law, for example. However, it is not clear how those issues fit into the “jurisdiction layer” model that seems to be clarifying and driving our agenda. So I hope Greg and Vinay can weigh in on that issue for us.
If I understand you correctly, public law issues are analogous to a “stress test;” there is no major issue with it now, but we need to explore how the new ICANN regime will react if something happens. E.g., the European Commission opens an antitrust investigation into ICANN, or a (unlikely) Trump administration pushes a bill through Congress re-regulating ICANN
*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Tuesday, October 11, 2016 3:59 AM *To:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Our work so far, and a way forward
On Monday 10 October 2016 10:28 AM, Greg Shatan wrote:
All,
In order to move forward, and based on the discussions so far, I suggest the following approach.
First, we should continue the current approach of defining and refining the various layers of jurisdiction, and I encourage you all to go to the Google doc and add your views. https://docs.google.com/document/d/1oE9xDIAJhr4Nx7vNO_mWotSXuUtTgJMRs6U92yTg...
Second, we won't investigate changing ICANN's headquarters or incorporation jurisdiction at this time. However, it's not off the table -- if we identify an issue during our work and we can't find a less drastic way to deal with that issue, we will revisit this point at that time. We can then revisit the concerns that people have raised regarding such a recommendation in the context of a particular issue.
While I can always insert this in the Google doc, I prefer to first discuss this here. (And yes I am repeating it.) The jurisdiction issue is best divided as (1) application of public law, (2) application of private law, (3) the rest of sundry stuff - like about different global offices and interaction with respective domestic jurisdiction (these are of relatively minor significance, and there may not be much to 'decide' about them in advance)
Place of incorporation and location of HQ (which is almost always the same) may be the proxy for 'application of public law' but they do not necessarily conflate. US government by decree has given jurisdictional immunities even to such bodies that are *not* created under international law and simply registered as private bodies, in the US or elsewhere. This certainly is an important possibility to look into for ICANN, which insulates it from application of US public law - in terms of its key organisational activities -- without moving the headquarters or even jurisdiction of incorporation.
I will repeat the question I put to the chairs in my last email: "are we considering this issue of application of US public law to ICANN, and the problems that it may cause with respect to its policy processes, and being able to appropriately carry out its global governance role? "
The concerns around application of public law are very different than those of application of private law -- and often different actors have these two different kinds of concerns. Public law also have application over private law cases.
If this group does not intend to get into the 'application of public law' question and stick to issues of private law, then let it decide and state as much in clear terms. Such actors whose interest in the jurisdiction question comes primarily from the public law aspect can then disengage from spending further time in this process - as for instance I will like to do.
Third, we should put aside "confirming and assessing the gap analysis" for the moment. There is still a diversity of views on what this "gap analysis" was and what we need to do to confirm and assess it. As a result, our time has been spent discussing the parameters of the assignment, rather than working on the assignment itself. I believe that we will be better able to define the scope of this item and move to substance, if we spend some time looking at the substance of an issue that is clearly within our scope.
After we finish clarifying the multiple layers of jurisdiction, we should move to an issue that is clearly within our scope -- something we have to do. That way we can move to the substance of the issue and not spend a lot of time on "scope."
An issue that is clearly within our scope relates to ICANN's jurisdictions for settlement of disputes (i.e., venue and choice of law).
One way is to look at this is as concerning the application of private law on iCANN matters. But then, like in the case of .xxx, what if the dispute invokes a public law (US competition law in this instance) -- which one can be assured that every disputant will do as long as it can find a favourable US public law which seems to side with the way the disputant wants things to go. As we explore the issue of 'settlement of disputes' are we going to look only to private law part and not public law? That IMHO would be quite inappropriate. But then if we are going to look into both private law and public law elements, the discussion gets messy because private law can involve choice of jurisdiction but not public law. This is why I think it is best if we divide our work and discussions as I suggested above, separately about issues of public law and those of private law.
But, as I said before, issues of public law are simply out, let us then be clear about it. I request a clarification by the chairs.
There should not be any question that this is within the scope of our group (Annex 12 refers to this as the "focus" for our group). Based on Annex 12, this involves looking at: "The influence that ICANN’s existing jurisdiction" relating to resolution of disputes "may have on the actual operation of policies
Application of US public law on ICANN has enormous influence on 'actual operation of (ICANN) policies'. And so we are very much within our mandate in discussing issues arising from 'public law' aspect.
and accountability mechanisms." I suggest that we examine this "influence" and determine what this "influence" is. Our work looking at venue and choice of law in the "multiple layers of jurisdiction" will help us in this task.
I gave a few instances in my last email of influence of US public law on operation of ICANN policies. Would these examples qualify to be considered under this or not?
A note on process -- it is very important that we focus on creating written material. In our calls, we should be working on and working from these written materials. Ultimately, these writings will feed into our deliverable. Put another way, you should focus your contributions on adding to the drafts (currently, the "layers of jurisdiction" document), rather than on relying solely on oral interventions in our calls -- after all we have 168 hours in a week, and only 1 hour for our call.
I agree. Calls can only help confirm or resolve some outstanding issues, and lay further directions. What we can accomplish in writing we should do. In that regard, I also think that to th extent issues can be addressed and resolved in email exchanges here they best be done so...
Thanks, parminder
I look forward to our upcoming call.
Best regards,
Greg
_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org>
https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Every federal law is a Public Law. https://www.congress.gov/public-laws/114th-congress The term is not used in relationship to State or local laws, but they serve largely the same function within their jurisdictions, so I would call them public laws as well. Private law is sometimes used to refer to the rules established between the parties in a contract, but clearly these do not have the force of law. Private laws can also refer to laws passed sometimes to assist a particular individual, but that have no broader relevance. These are typically used to solve discrete issues that can't be solve any other way, and they are relatively uncommon. As Milton notes, there's no reason to get hung up on the dichotomy (whatever that dichotomy is). We can look at Parminder's examples and deal with them. These seem to fall into two buckets: legislation and government enforcement, and use of the courts by private parties. Whether we call any of that private law or not really doesn't matter. Greg On Tue, Oct 11, 2016 at 1:23 PM, Nigel Roberts <nigel@channelisles.net> wrote:
I do not know if the US has a different definition, but in the UK 'public law' means law that applies to actions of the Government.
So an action in judicial review to overturn an adverse decision by an executive branch decision-maker is an action in public law.
On 11/10/16 16:19, Jeff Neuman wrote:
Although I am a properly licensed attorney in the United States, I am not clear on what the definition is of “public law” vs. private law. That is not a concept that I am familiar with. Are talking about statutory law vs. common law, or are we talking about private causes of action vs. government causes of action.
Sorry, but just trying to wrap my head around this and why it matters.
*Jeffrey J. Neuman*
*Senior Vice President *|*Valideus USA***| *Com Laude USA*
1751 Pinnacle Drive, Suite 600
Mclean, VA 22102, United States
E: jeff.neuman@valideus.com <mailto:jeff.neuman@valideus.com>or jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com>
T: +1.703.635.7514
M: +1.202.549.5079
@Jintlaw
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Mueller, Milton L *Sent:* Tuesday, October 11, 2016 10:51 AM *To:* parminder <parminder@itforchange.net>; ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] Our work so far, and a way forward
I don’t think the question of public law is out of consideration. There is much talk of “applicable [public] law” when we consider dispute resolution/choice of law, for example. However, it is not clear how those issues fit into the “jurisdiction layer” model that seems to be clarifying and driving our agenda. So I hope Greg and Vinay can weigh in on that issue for us.
If I understand you correctly, public law issues are analogous to a “stress test;” there is no major issue with it now, but we need to explore how the new ICANN regime will react if something happens. E.g., the European Commission opens an antitrust investigation into ICANN, or a (unlikely) Trump administration pushes a bill through Congress re-regulating ICANN
*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Tuesday, October 11, 2016 3:59 AM *To:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Our work so far, and a way forward
On Monday 10 October 2016 10:28 AM, Greg Shatan wrote:
All,
In order to move forward, and based on the discussions so far, I suggest the following approach.
First, we should continue the current approach of defining and refining the various layers of jurisdiction, and I encourage you all to go to the Google doc and add your views. https://docs.google.com/document/d/1oE9xDIAJhr4Nx7vNO_mWotS XuUtTgJMRs6U92yTgOH4/edit?usp=sharing
Second, we won't investigate changing ICANN's headquarters or incorporation jurisdiction at this time. However, it's not off the table -- if we identify an issue during our work and we can't find a less drastic way to deal with that issue, we will revisit this point at that time. We can then revisit the concerns that people have raised regarding such a recommendation in the context of a particular issue.
While I can always insert this in the Google doc, I prefer to first discuss this here. (And yes I am repeating it.) The jurisdiction issue is best divided as (1) application of public law, (2) application of private law, (3) the rest of sundry stuff - like about different global offices and interaction with respective domestic jurisdiction (these are of relatively minor significance, and there may not be much to 'decide' about them in advance)
Place of incorporation and location of HQ (which is almost always the same) may be the proxy for 'application of public law' but they do not necessarily conflate. US government by decree has given jurisdictional immunities even to such bodies that are *not* created under international law and simply registered as private bodies, in the US or elsewhere. This certainly is an important possibility to look into for ICANN, which insulates it from application of US public law - in terms of its key organisational activities -- without moving the headquarters or even jurisdiction of incorporation.
I will repeat the question I put to the chairs in my last email: "are we considering this issue of application of US public law to ICANN, and the problems that it may cause with respect to its policy processes, and being able to appropriately carry out its global governance role? "
The concerns around application of public law are very different than those of application of private law -- and often different actors have these two different kinds of concerns. Public law also have application over private law cases.
If this group does not intend to get into the 'application of public law' question and stick to issues of private law, then let it decide and state as much in clear terms. Such actors whose interest in the jurisdiction question comes primarily from the public law aspect can then disengage from spending further time in this process - as for instance I will like to do.
Third, we should put aside "confirming and assessing the gap analysis" for the moment. There is still a diversity of views on what this "gap analysis" was and what we need to do to confirm and assess it. As a result, our time has been spent discussing the parameters of the assignment, rather than working on the assignment itself. I believe that we will be better able to define the scope of this item and move to substance, if we spend some time looking at the substance of an issue that is clearly within our scope.
After we finish clarifying the multiple layers of jurisdiction, we should move to an issue that is clearly within our scope -- something we have to do. That way we can move to the substance of the issue and not spend a lot of time on "scope."
An issue that is clearly within our scope relates to ICANN's jurisdictions for settlement of disputes (i.e., venue and choice of law).
One way is to look at this is as concerning the application of private law on iCANN matters. But then, like in the case of .xxx, what if the dispute invokes a public law (US competition law in this instance) -- which one can be assured that every disputant will do as long as it can find a favourable US public law which seems to side with the way the disputant wants things to go. As we explore the issue of 'settlement of disputes' are we going to look only to private law part and not public law? That IMHO would be quite inappropriate. But then if we are going to look into both private law and public law elements, the discussion gets messy because private law can involve choice of jurisdiction but not public law. This is why I think it is best if we divide our work and discussions as I suggested above, separately about issues of public law and those of private law.
But, as I said before, issues of public law are simply out, let us then be clear about it. I request a clarification by the chairs.
There should not be any question that this is within the scope of our group (Annex 12 refers to this as the "focus" for our group). Based on Annex 12, this involves looking at: "The influence that ICANN’s existing jurisdiction" relating to resolution of disputes "may have on the actual operation of policies
Application of US public law on ICANN has enormous influence on 'actual operation of (ICANN) policies'. And so we are very much within our mandate in discussing issues arising from 'public law' aspect.
and accountability mechanisms." I suggest that we examine this "influence" and determine what this "influence" is. Our work looking at venue and choice of law in the "multiple layers of jurisdiction" will help us in this task.
I gave a few instances in my last email of influence of US public law on operation of ICANN policies. Would these examples qualify to be considered under this or not?
A note on process -- it is very important that we focus on creating written material. In our calls, we should be working on and working from these written materials. Ultimately, these writings will feed into our deliverable. Put another way, you should focus your contributions on adding to the drafts (currently, the "layers of jurisdiction" document), rather than on relying solely on oral interventions in our calls -- after all we have 168 hours in a week, and only 1 hour for our call.
I agree. Calls can only help confirm or resolve some outstanding issues, and lay further directions. What we can accomplish in writing we should do. In that regard, I also think that to th extent issues can be addressed and resolved in email exchanges here they best be done so...
Thanks, parminder
I look forward to our upcoming call.
Best regards,
Greg
_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org>
https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
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As I mentioned, the distinction between public law and private law is for instance spoken of in many judgements of the highest courts in India, and is in general understood and public law being that involving the interests of the state/ society in an issue and private law as only of specific individual parties. Anyway, since we need to focus on our task at hand, I will point to what should most matter to us with regard to this distinction. We are taking about the jurisdiction issue, and what may need to be and can be done in this regard about the jurisdiction over ICANN. In this regard it is most salient that in the application of public law there is no choice of jurisdiction available to the parties, and they are subject the jurisdiction of the state where they are located in the application of private law, often though not always a choice of jurisdiction is available to the parties, especially as and if previously agreed to. anyway, as Milton says, it is more important to address the kind of scenarios that I have listed. thanks, parminder On Tuesday 11 October 2016 10:53 PM, Nigel Roberts wrote:
I do not know if the US has a different definition, but in the UK 'public law' means law that applies to actions of the Government.
So an action in judicial review to overturn an adverse decision by an executive branch decision-maker is an action in public law.
On 11/10/16 16:19, Jeff Neuman wrote:
Although I am a properly licensed attorney in the United States, I am not clear on what the definition is of “public law” vs. private law. That is not a concept that I am familiar with. Are talking about statutory law vs. common law, or are we talking about private causes of action vs. government causes of action.
Sorry, but just trying to wrap my head around this and why it matters.
*Jeffrey J. Neuman*
*Senior Vice President *|*Valideus USA***| *Com Laude USA*
1751 Pinnacle Drive, Suite 600
Mclean, VA 22102, United States
E: jeff.neuman@valideus.com <mailto:jeff.neuman@valideus.com>or jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com>
T: +1.703.635.7514
M: +1.202.549.5079
@Jintlaw
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Mueller, Milton L *Sent:* Tuesday, October 11, 2016 10:51 AM *To:* parminder <parminder@itforchange.net>; ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] Our work so far, and a way forward
I don’t think the question of public law is out of consideration. There is much talk of “applicable [public] law” when we consider dispute resolution/choice of law, for example. However, it is not clear how those issues fit into the “jurisdiction layer” model that seems to be clarifying and driving our agenda. So I hope Greg and Vinay can weigh in on that issue for us.
If I understand you correctly, public law issues are analogous to a “stress test;” there is no major issue with it now, but we need to explore how the new ICANN regime will react if something happens. E.g., the European Commission opens an antitrust investigation into ICANN, or a (unlikely) Trump administration pushes a bill through Congress re-regulating ICANN
*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Tuesday, October 11, 2016 3:59 AM *To:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Our work so far, and a way forward
On Monday 10 October 2016 10:28 AM, Greg Shatan wrote:
All,
In order to move forward, and based on the discussions so far, I suggest the following approach.
First, we should continue the current approach of defining and refining the various layers of jurisdiction, and I encourage you all to go to the Google doc and add your views.
https://docs.google.com/document/d/1oE9xDIAJhr4Nx7vNO_mWotSXuUtTgJMRs6U92yTg...
Second, we won't investigate changing ICANN's headquarters or incorporation jurisdiction at this time. However, it's not off the table -- if we identify an issue during our work and we can't find a less drastic way to deal with that issue, we will revisit this point at that time. We can then revisit the concerns that people have raised regarding such a recommendation in the context of a particular issue.
While I can always insert this in the Google doc, I prefer to first discuss this here. (And yes I am repeating it.) The jurisdiction issue is best divided as (1) application of public law, (2) application of private law, (3) the rest of sundry stuff - like about different global offices and interaction with respective domestic jurisdiction (these are of relatively minor significance, and there may not be much to 'decide' about them in advance)
Place of incorporation and location of HQ (which is almost always the same) may be the proxy for 'application of public law' but they do not necessarily conflate. US government by decree has given jurisdictional immunities even to such bodies that are *not* created under international law and simply registered as private bodies, in the US or elsewhere. This certainly is an important possibility to look into for ICANN, which insulates it from application of US public law - in terms of its key organisational activities -- without moving the headquarters or even jurisdiction of incorporation.
I will repeat the question I put to the chairs in my last email: "are we considering this issue of application of US public law to ICANN, and the problems that it may cause with respect to its policy processes, and being able to appropriately carry out its global governance role? "
The concerns around application of public law are very different than those of application of private law -- and often different actors have these two different kinds of concerns. Public law also have application over private law cases.
If this group does not intend to get into the 'application of public law' question and stick to issues of private law, then let it decide and state as much in clear terms. Such actors whose interest in the jurisdiction question comes primarily from the public law aspect can then disengage from spending further time in this process - as for instance I will like to do.
Third, we should put aside "confirming and assessing the gap analysis" for the moment. There is still a diversity of views on what this "gap analysis" was and what we need to do to confirm and assess it. As a result, our time has been spent discussing the parameters of the assignment, rather than working on the assignment itself. I believe that we will be better able to define the scope of this item and move to substance, if we spend some time looking at the substance of an issue that is clearly within our scope.
After we finish clarifying the multiple layers of jurisdiction, we should move to an issue that is clearly within our scope -- something we have to do. That way we can move to the substance of the issue and not spend a lot of time on "scope."
An issue that is clearly within our scope relates to ICANN's jurisdictions for settlement of disputes (i.e., venue and choice of law).
One way is to look at this is as concerning the application of private law on iCANN matters. But then, like in the case of .xxx, what if the dispute invokes a public law (US competition law in this instance) -- which one can be assured that every disputant will do as long as it can find a favourable US public law which seems to side with the way the disputant wants things to go. As we explore the issue of 'settlement of disputes' are we going to look only to private law part and not public law? That IMHO would be quite inappropriate. But then if we are going to look into both private law and public law elements, the discussion gets messy because private law can involve choice of jurisdiction but not public law. This is why I think it is best if we divide our work and discussions as I suggested above, separately about issues of public law and those of private law.
But, as I said before, issues of public law are simply out, let us then be clear about it. I request a clarification by the chairs.
There should not be any question that this is within the scope of our group (Annex 12 refers to this as the "focus" for our group). Based on Annex 12, this involves looking at: "The influence that ICANN’s existing jurisdiction" relating to resolution of disputes "may have on the actual operation of policies
Application of US public law on ICANN has enormous influence on 'actual operation of (ICANN) policies'. And so we are very much within our mandate in discussing issues arising from 'public law' aspect.
and accountability mechanisms." I suggest that we examine this "influence" and determine what this "influence" is. Our work looking at venue and choice of law in the "multiple layers of jurisdiction" will help us in this task.
I gave a few instances in my last email of influence of US public law on operation of ICANN policies. Would these examples qualify to be considered under this or not?
A note on process -- it is very important that we focus on creating written material. In our calls, we should be working on and working from these written materials. Ultimately, these writings will feed into our deliverable. Put another way, you should focus your contributions on adding to the drafts (currently, the "layers of jurisdiction" document), rather than on relying solely on oral interventions in our calls -- after all we have 168 hours in a week, and only 1 hour for our call.
I agree. Calls can only help confirm or resolve some outstanding issues, and lay further directions. What we can accomplish in writing we should do. In that regard, I also think that to th extent issues can be addressed and resolved in email exchanges here they best be done so...
Thanks, parminder
I look forward to our upcoming call.
Best regards,
Greg
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Dear Parminder Thank you very much for the message. You said for public law *"in the application of public law there is no choice of jurisdiction available to the parties, and they are subject the jurisdiction of the state where they are located"* *What do you mean by " they" who are they ? both parties, one party ?* You also said *"in the application of private law, often though not always a choice of jurisdiction is available to the parties, especially as and if previously agreed to." * It is not clear what you were to say, your statement is unfortunately vagueas May you put it differently Kavouss 2016-10-16 15:19 GMT+02:00 parminder <parminder@itforchange.net>:
As I mentioned, the distinction between public law and private law is for instance spoken of in many judgements of the highest courts in India, and is in general understood and public law being that involving the interests of the state/ society in an issue and private law as only of specific individual parties. Anyway, since we need to focus on our task at hand, I will point to what should most matter to us with regard to this distinction. We are taking about the jurisdiction issue, and what may need to be and can be done in this regard about the jurisdiction over ICANN. In this regard it is most salient that
in the application of public law there is no choice of jurisdiction available to the parties, and they are subject the jurisdiction of the state where they are located
in the application of private law, often though not always a choice of jurisdiction is available to the parties, especially as and if previously agreed to.
anyway, as Milton says, it is more important to address the kind of scenarios that I have listed.
thanks, parminder
On Tuesday 11 October 2016 10:53 PM, Nigel Roberts wrote:
I do not know if the US has a different definition, but in the UK 'public law' means law that applies to actions of the Government.
So an action in judicial review to overturn an adverse decision by an executive branch decision-maker is an action in public law.
On 11/10/16 16:19, Jeff Neuman wrote:
Although I am a properly licensed attorney in the United States, I am not clear on what the definition is of “public law” vs. private law. That is not a concept that I am familiar with. Are talking about statutory law vs. common law, or are we talking about private causes of action vs. government causes of action.
Sorry, but just trying to wrap my head around this and why it matters.
*Jeffrey J. Neuman*
*Senior Vice President *|*Valideus USA***| *Com Laude USA*
1751 Pinnacle Drive, Suite 600
Mclean, VA 22102, United States
E: jeff.neuman@valideus.com <mailto:jeff.neuman@valideus.com> <jeff.neuman@valideus.com>or jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com> <jeff.neuman@comlaude.com>
T: +1.703.635.7514
M: +1.202.549.5079
@Jintlaw
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Mueller, Milton L *Sent:* Tuesday, October 11, 2016 10:51 AM *To:* parminder <parminder@itforchange.net> <parminder@itforchange.net>; ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] Our work so far, and a way forward
I don’t think the question of public law is out of consideration. There is much talk of “applicable [public] law” when we consider dispute resolution/choice of law, for example. However, it is not clear how those issues fit into the “jurisdiction layer” model that seems to be clarifying and driving our agenda. So I hope Greg and Vinay can weigh in on that issue for us.
If I understand you correctly, public law issues are analogous to a “stress test;” there is no major issue with it now, but we need to explore how the new ICANN regime will react if something happens. E.g., the European Commission opens an antitrust investigation into ICANN, or a (unlikely) Trump administration pushes a bill through Congress re-regulating ICANN
*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> <ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *parminder *Sent:* Tuesday, October 11, 2016 3:59 AM *To:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> <ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Our work so far, and a way forward
On Monday 10 October 2016 10:28 AM, Greg Shatan wrote:
All,
In order to move forward, and based on the discussions so far, I suggest the following approach.
First, we should continue the current approach of defining and refining the various layers of jurisdiction, and I encourage you all to go to the Google doc and add your views. https://docs.google.com/document/d/1oE9xDIAJhr4Nx7vNO_ mWotSXuUtTgJMRs6U92yTgOH4/edit?usp=sharing
Second, we won't investigate changing ICANN's headquarters or incorporation jurisdiction at this time. However, it's not off the table -- if we identify an issue during our work and we can't find a less drastic way to deal with that issue, we will revisit this point at that time. We can then revisit the concerns that people have raised regarding such a recommendation in the context of a particular issue.
While I can always insert this in the Google doc, I prefer to first discuss this here. (And yes I am repeating it.) The jurisdiction issue is best divided as (1) application of public law, (2) application of private law, (3) the rest of sundry stuff - like about different global offices and interaction with respective domestic jurisdiction (these are of relatively minor significance, and there may not be much to 'decide' about them in advance)
Place of incorporation and location of HQ (which is almost always the same) may be the proxy for 'application of public law' but they do not necessarily conflate. US government by decree has given jurisdictional immunities even to such bodies that are *not* created under international law and simply registered as private bodies, in the US or elsewhere. This certainly is an important possibility to look into for ICANN, which insulates it from application of US public law - in terms of its key organisational activities -- without moving the headquarters or even jurisdiction of incorporation.
I will repeat the question I put to the chairs in my last email: "are we considering this issue of application of US public law to ICANN, and the problems that it may cause with respect to its policy processes, and being able to appropriately carry out its global governance role? "
The concerns around application of public law are very different than those of application of private law -- and often different actors have these two different kinds of concerns. Public law also have application over private law cases.
If this group does not intend to get into the 'application of public law' question and stick to issues of private law, then let it decide and state as much in clear terms. Such actors whose interest in the jurisdiction question comes primarily from the public law aspect can then disengage from spending further time in this process - as for instance I will like to do.
Third, we should put aside "confirming and assessing the gap analysis" for the moment. There is still a diversity of views on what this "gap analysis" was and what we need to do to confirm and assess it. As a result, our time has been spent discussing the parameters of the assignment, rather than working on the assignment itself. I believe that we will be better able to define the scope of this item and move to substance, if we spend some time looking at the substance of an issue that is clearly within our scope.
After we finish clarifying the multiple layers of jurisdiction, we should move to an issue that is clearly within our scope -- something we have to do. That way we can move to the substance of the issue and not spend a lot of time on "scope."
An issue that is clearly within our scope relates to ICANN's jurisdictions for settlement of disputes (i.e., venue and choice of law).
One way is to look at this is as concerning the application of private law on iCANN matters. But then, like in the case of .xxx, what if the dispute invokes a public law (US competition law in this instance) -- which one can be assured that every disputant will do as long as it can find a favourable US public law which seems to side with the way the disputant wants things to go. As we explore the issue of 'settlement of disputes' are we going to look only to private law part and not public law? That IMHO would be quite inappropriate. But then if we are going to look into both private law and public law elements, the discussion gets messy because private law can involve choice of jurisdiction but not public law. This is why I think it is best if we divide our work and discussions as I suggested above, separately about issues of public law and those of private law.
But, as I said before, issues of public law are simply out, let us then be clear about it. I request a clarification by the chairs.
There should not be any question that this is within the scope of our group (Annex 12 refers to this as the "focus" for our group). Based on Annex 12, this involves looking at: "The influence that ICANN’s existing jurisdiction" relating to resolution of disputes "may have on the actual operation of policies
Application of US public law on ICANN has enormous influence on 'actual operation of (ICANN) policies'. And so we are very much within our mandate in discussing issues arising from 'public law' aspect.
and accountability mechanisms." I suggest that we examine this "influence" and determine what this "influence" is. Our work looking at venue and choice of law in the "multiple layers of jurisdiction" will help us in this task.
I gave a few instances in my last email of influence of US public law on operation of ICANN policies. Would these examples qualify to be considered under this or not?
A note on process -- it is very important that we focus on creating written material. In our calls, we should be working on and working from these written materials. Ultimately, these writings will feed into our deliverable. Put another way, you should focus your contributions on adding to the drafts (currently, the "layers of jurisdiction" document), rather than on relying solely on oral interventions in our calls -- after all we have 168 hours in a week, and only 1 hour for our call.
I agree. Calls can only help confirm or resolve some outstanding issues, and lay further directions. What we can accomplish in writing we should do. In that regard, I also think that to th extent issues can be addressed and resolved in email exchanges here they best be done so...
Thanks, parminder
I look forward to our upcoming call.
Best regards,
Greg
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On Sunday 16 October 2016 07:08 PM, Kavouss Arasteh wrote:
Dear Parminder Thank you very much for the message. You said for public law /"in the application of public law there is no choice of jurisdiction available to the parties, and they are subject the jurisdiction of the state where they are located"/ /What do you mean by "they" who are they ? both parties, one party ?/ You also said /"in the application of private law, often though not always a choice of jurisdiction is available to the parties, especially as and if previously agreed to." / It is not clear what you were to say, your statement is unfortunately vagueas May you put it differently Kavouss
Sure, Kavouss. I agree I could have been clearer. Public law concerns issues between the society and one or more individuals. The society is legally represented by the state, and so in public law case/ dispute, this one side is fixed and cannot be changed. Any party(one or more) that gets involved in a public law dispute has no choice of jurisdiction, and the jurisdiction where this party (or parties if there is more than one) is located, and is a part of the wider society, will apply. So, in case of public law, there is no choice of jurisdiction, jurisdiction of the place where a party (or parties) is located/ incorporated will apply. In case of private law, it is an issue between two or more individuals (or legal entities) and in many cases it is possible that they can preselect a jurisdiction of application if there is a dispute about given matters for which the jurisdiction is preselected. This generally happens in various contracts. Application of labour law is a good example. Labour law consists of some values and standards that a society decides must apply to every employment. It is a public law. There is *no* choice for a set of employer and employed, or even a trade union on the latter's behalf, to agree *not* to be subject to a society's labour laws. However, one can enter into a contract of service (which may otherwise look quite like employment) whereby the conditions of the contract can be mutual agreed. I dont know how it is different countries, but sometimes in such cases disputes under the contract can be subject to mutually preselected jurisdiction. Private law is in operation here. IN case of private law, it may be possible to choose the jurisdiction that will be applicable to disputes. However, public law can always upstage private law application; for instance labour courts can hold that certain contracts of service should really have been cases of regular employment, subject to public labour laws. Uber for instance makes out private contracts (under private law) with its drivers. You would have heard that many drivers have sued the company that this arrangement should in fact be of regular employment, subject to labour laws (public law). Hope this clarifies. parminder
2016-10-16 15:19 GMT+02:00 parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>>:
As I mentioned, the distinction between public law and private law is for instance spoken of in many judgements of the highest courts in India, and is in general understood and public law being that involving the interests of the state/ society in an issue and private law as only of specific individual parties. Anyway, since we need to focus on our task at hand, I will point to what should most matter to us with regard to this distinction. We are taking about the jurisdiction issue, and what may need to be and can be done in this regard about the jurisdiction over ICANN. In this regard it is most salient that
in the application of public law there is no choice of jurisdiction available to the parties, and they are subject the jurisdiction of the state where they are located
in the application of private law, often though not always a choice of jurisdiction is available to the parties, especially as and if previously agreed to.
anyway, as Milton says, it is more important to address the kind of scenarios that I have listed.
thanks, parminder
On Tuesday 11 October 2016 10:53 PM, Nigel Roberts wrote:
I do not know if the US has a different definition, but in the UK 'public law' means law that applies to actions of the Government.
So an action in judicial review to overturn an adverse decision by an executive branch decision-maker is an action in public law.
On 11/10/16 16:19, Jeff Neuman wrote:
Although I am a properly licensed attorney in the United States, I am not clear on what the definition is of “public law” vs. private law. That is not a concept that I am familiar with. Are talking about statutory law vs. common law, or are we talking about private causes of action vs. government causes of action.
Sorry, but just trying to wrap my head around this and why it matters.
*Jeffrey J. Neuman*
*Senior Vice President *|*Valideus USA***| *Com Laude USA*
1751 Pinnacle Drive, Suite 600
Mclean, VA 22102, United States
E: jeff.neuman@valideus.com <mailto:jeff.neuman@valideus.com> <mailto:jeff.neuman@valideus.com> <mailto:jeff.neuman@valideus.com>or jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com> <mailto:jeff.neuman@comlaude.com> <mailto:jeff.neuman@comlaude.com>
T: +1.703.635.7514 <tel:%2B1.703.635.7514>
M: +1.202.549.5079 <tel:%2B1.202.549.5079>
@Jintlaw
*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Mueller, Milton L *Sent:* Tuesday, October 11, 2016 10:51 AM *To:* parminder <parminder@itforchange.net> <mailto:parminder@itforchange.net>; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Our work so far, and a way forward
I don’t think the question of public law is out of consideration. There is much talk of “applicable [public] law” when we consider dispute resolution/choice of law, for example. However, it is not clear how those issues fit into the “jurisdiction layer” model that seems to be clarifying and driving our agenda. So I hope Greg and Vinay can weigh in on that issue for us.
If I understand you correctly, public law issues are analogous to a “stress test;” there is no major issue with it now, but we need to explore how the new ICANN regime will react if something happens. E.g., the European Commission opens an antitrust investigation into ICANN, or a (unlikely) Trump administration pushes a bill through Congress re-regulating ICANN
*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> <mailto:ws2-jurisdiction-bounces@icann.org> <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *parminder *Sent:* Tuesday, October 11, 2016 3:59 AM *To:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> <mailto:ws2-jurisdiction@icann.org> <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Our work so far, and a way forward
On Monday 10 October 2016 10:28 AM, Greg Shatan wrote:
All,
In order to move forward, and based on the discussions so far, I suggest the following approach.
First, we should continue the current approach of defining and refining the various layers of jurisdiction, and I encourage you all to go to the Google doc and add your views.
https://docs.google.com/document/d/1oE9xDIAJhr4Nx7vNO_mWotSXuUtTgJMRs6U92yTg... <https://docs.google.com/document/d/1oE9xDIAJhr4Nx7vNO_mWotSXuUtTgJMRs6U92yTg...>
Second, we won't investigate changing ICANN's headquarters or incorporation jurisdiction at this time. However, it's not off the table -- if we identify an issue during our work and we can't find a less drastic way to deal with that issue, we will revisit this point at that time. We can then revisit the concerns that people have raised regarding such a recommendation in the context of a particular issue.
While I can always insert this in the Google doc, I prefer to first discuss this here. (And yes I am repeating it.) The jurisdiction issue is best divided as (1) application of public law, (2) application of private law, (3) the rest of sundry stuff - like about different global offices and interaction with respective domestic jurisdiction (these are of relatively minor significance, and there may not be much to 'decide' about them in advance)
Place of incorporation and location of HQ (which is almost always the same) may be the proxy for 'application of public law' but they do not necessarily conflate. US government by decree has given jurisdictional immunities even to such bodies that are *not* created under international law and simply registered as private bodies, in the US or elsewhere. This certainly is an important possibility to look into for ICANN, which insulates it from application of US public law - in terms of its key organisational activities -- without moving the headquarters or even jurisdiction of incorporation.
I will repeat the question I put to the chairs in my last email: "are we considering this issue of application of US public law to ICANN, and the problems that it may cause with respect to its policy processes, and being able to appropriately carry out its global governance role? "
The concerns around application of public law are very different than those of application of private law -- and often different actors have these two different kinds of concerns. Public law also have application over private law cases.
If this group does not intend to get into the 'application of public law' question and stick to issues of private law, then let it decide and state as much in clear terms. Such actors whose interest in the jurisdiction question comes primarily from the public law aspect can then disengage from spending further time in this process - as for instance I will like to do.
Third, we should put aside "confirming and assessing the gap analysis" for the moment. There is still a diversity of views on what this "gap analysis" was and what we need to do to confirm and assess it. As a result, our time has been spent discussing the parameters of the assignment, rather than working on the assignment itself. I believe that we will be better able to define the scope of this item and move to substance, if we spend some time looking at the substance of an issue that is clearly within our scope.
After we finish clarifying the multiple layers of jurisdiction, we should move to an issue that is clearly within our scope -- something we have to do. That way we can move to the substance of the issue and not spend a lot of time on "scope."
An issue that is clearly within our scope relates to ICANN's jurisdictions for settlement of disputes (i.e., venue and choice of law).
One way is to look at this is as concerning the application of private law on iCANN matters. But then, like in the case of .xxx, what if the dispute invokes a public law (US competition law in this instance) -- which one can be assured that every disputant will do as long as it can find a favourable US public law which seems to side with the way the disputant wants things to go. As we explore the issue of 'settlement of disputes' are we going to look only to private law part and not public law? That IMHO would be quite inappropriate. But then if we are going to look into both private law and public law elements, the discussion gets messy because private law can involve choice of jurisdiction but not public law. This is why I think it is best if we divide our work and discussions as I suggested above, separately about issues of public law and those of private law.
But, as I said before, issues of public law are simply out, let us then be clear about it. I request a clarification by the chairs.
There should not be any question that this is within the scope of our group (Annex 12 refers to this as the "focus" for our group). Based on Annex 12, this involves looking at: "The influence that ICANN’s existing jurisdiction" relating to resolution of disputes "may have on the actual operation of policies
Application of US public law on ICANN has enormous influence on 'actual operation of (ICANN) policies'. And so we are very much within our mandate in discussing issues arising from 'public law' aspect.
and accountability mechanisms." I suggest that we examine this "influence" and determine what this "influence" is. Our work looking at venue and choice of law in the "multiple layers of jurisdiction" will help us in this task.
I gave a few instances in my last email of influence of US public law on operation of ICANN policies. Would these examples qualify to be considered under this or not?
A note on process -- it is very important that we focus on creating written material. In our calls, we should be working on and working from these written materials. Ultimately, these writings will feed into our deliverable. Put another way, you should focus your contributions on adding to the drafts (currently, the "layers of jurisdiction" document), rather than on relying solely on oral interventions in our calls -- after all we have 168 hours in a week, and only 1 hour for our call.
I agree. Calls can only help confirm or resolve some outstanding issues, and lay further directions. What we can accomplish in writing we should do. In that regard, I also think that to th extent issues can be addressed and resolved in email exchanges here they best be done so...
Thanks, parminder
I look forward to our upcoming call.
Best regards,
Greg
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Good clarification. Please add to „constraints on free choice in private law“: Many countries (e.g. EU legislation, Lugano Convention) restrict choice of law and forum in favour of consumers. Best, Erich Schweighofer Von: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] Im Auftrag von parminder Gesendet: Montag, 17. Oktober 2016 07:14 An: Kavouss Arasteh Cc: ws2-jurisdiction@icann.org Betreff: Re: [Ws2-jurisdiction] Our work so far, and a way forward On Sunday 16 October 2016 07:08 PM, Kavouss Arasteh wrote: Dear Parminder Thank you very much for the message. You said for public law "in the application of public law there is no choice of jurisdiction available to the parties, and they are subject the jurisdiction of the state where they are located" What do you mean by " they" who are they ? both parties, one party ? You also said "in the application of private law, often though not always a choice of jurisdiction is available to the parties, especially as and if previously agreed to." It is not clear what you were to say, your statement is unfortunately vagueas May you put it differently Kavouss Sure, Kavouss. I agree I could have been clearer. Public law concerns issues between the society and one or more individuals. The society is legally represented by the state, and so in public law case/ dispute, this one side is fixed and cannot be changed. Any party(one or more) that gets involved in a public law dispute has no choice of jurisdiction, and the jurisdiction where this party (or parties if there is more than one) is located, and is a part of the wider society, will apply. So, in case of public law, there is no choice of jurisdiction, jurisdiction of the place where a party (or parties) is located/ incorporated will apply. In case of private law, it is an issue between two or more individuals (or legal entities) and in many cases it is possible that they can preselect a jurisdiction of application if there is a dispute about given matters for which the jurisdiction is preselected. This generally happens in various contracts. Application of labour law is a good example. Labour law consists of some values and standards that a society decides must apply to every employment. It is a public law. There is *no* choice for a set of employer and employed, or even a trade union on the latter's behalf, to agree *not* to be subject to a society's labour laws. However, one can enter into a contract of service (which may otherwise look quite like employment) whereby the conditions of the contract can be mutual agreed. I dont know how it is different countries, but sometimes in such cases disputes under the contract can be subject to mutually preselected jurisdiction. Private law is in operation here. IN case of private law, it may be possible to choose the jurisdiction that will be applicable to disputes. However, public law can always upstage private law application; for instance labour courts can hold that certain contracts of service should really have been cases of regular employment, subject to public labour laws. Uber for instance makes out private contracts (under private law) with its drivers. You would have heard that many drivers have sued the company that this arrangement should in fact be of regular employment, subject to labour laws (public law). Hope this clarifies. parminder 2016-10-16 15:19 GMT+02:00 parminder <parminder@itforchange.net<mailto:parminder@itforchange.net>>: As I mentioned, the distinction between public law and private law is for instance spoken of in many judgements of the highest courts in India, and is in general understood and public law being that involving the interests of the state/ society in an issue and private law as only of specific individual parties. Anyway, since we need to focus on our task at hand, I will point to what should most matter to us with regard to this distinction. We are taking about the jurisdiction issue, and what may need to be and can be done in this regard about the jurisdiction over ICANN. In this regard it is most salient that in the application of public law there is no choice of jurisdiction available to the parties, and they are subject the jurisdiction of the state where they are located in the application of private law, often though not always a choice of jurisdiction is available to the parties, especially as and if previously agreed to. anyway, as Milton says, it is more important to address the kind of scenarios that I have listed. thanks, parminder On Tuesday 11 October 2016 10:53 PM, Nigel Roberts wrote: I do not know if the US has a different definition, but in the UK 'public law' means law that applies to actions of the Government. So an action in judicial review to overturn an adverse decision by an executive branch decision-maker is an action in public law. On 11/10/16 16:19, Jeff Neuman wrote: Although I am a properly licensed attorney in the United States, I am not clear on what the definition is of “public law” vs. private law. That is not a concept that I am familiar with. Are talking about statutory law vs. common law, or are we talking about private causes of action vs. government causes of action. Sorry, but just trying to wrap my head around this and why it matters. *Jeffrey J. Neuman* *Senior Vice President *|*Valideus USA***| *Com Laude USA* 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com> <mailto:jeff.neuman@valideus.com><mailto:jeff.neuman@valideus.com>or jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> <mailto:jeff.neuman@comlaude.com><mailto:jeff.neuman@comlaude.com> T: +1.703.635.7514<tel:%2B1.703.635.7514> M: +1.202.549.5079<tel:%2B1.202.549.5079> @Jintlaw *From:*ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Mueller, Milton L *Sent:* Tuesday, October 11, 2016 10:51 AM *To:* parminder <parminder@itforchange.net><mailto:parminder@itforchange.net>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Our work so far, and a way forward I don’t think the question of public law is out of consideration. There is much talk of “applicable [public] law” when we consider dispute resolution/choice of law, for example. However, it is not clear how those issues fit into the “jurisdiction layer” model that seems to be clarifying and driving our agenda. So I hope Greg and Vinay can weigh in on that issue for us. If I understand you correctly, public law issues are analogous to a “stress test;” there is no major issue with it now, but we need to explore how the new ICANN regime will react if something happens. E.g., the European Commission opens an antitrust investigation into ICANN, or a (unlikely) Trump administration pushes a bill through Congress re-regulating ICANN *From:*ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> <mailto:ws2-jurisdiction-bounces@icann.org><mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Tuesday, October 11, 2016 3:59 AM *To:* ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> <mailto:ws2-jurisdiction@icann.org><mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Our work so far, and a way forward On Monday 10 October 2016 10:28 AM, Greg Shatan wrote: All, In order to move forward, and based on the discussions so far, I suggest the following approach. First, we should continue the current approach of defining and refining the various layers of jurisdiction, and I encourage you all to go to the Google doc and add your views. https://docs.google.com/document/d/1oE9xDIAJhr4Nx7vNO_mWotSXuUtTgJMRs6U92yTg... Second, we won't investigate changing ICANN's headquarters or incorporation jurisdiction at this time. However, it's not off the table -- if we identify an issue during our work and we can't find a less drastic way to deal with that issue, we will revisit this point at that time. We can then revisit the concerns that people have raised regarding such a recommendation in the context of a particular issue. While I can always insert this in the Google doc, I prefer to first discuss this here. (And yes I am repeating it.) The jurisdiction issue is best divided as (1) application of public law, (2) application of private law, (3) the rest of sundry stuff - like about different global offices and interaction with respective domestic jurisdiction (these are of relatively minor significance, and there may not be much to 'decide' about them in advance) Place of incorporation and location of HQ (which is almost always the same) may be the proxy for 'application of public law' but they do not necessarily conflate. US government by decree has given jurisdictional immunities even to such bodies that are *not* created under international law and simply registered as private bodies, in the US or elsewhere. This certainly is an important possibility to look into for ICANN, which insulates it from application of US public law - in terms of its key organisational activities -- without moving the headquarters or even jurisdiction of incorporation. I will repeat the question I put to the chairs in my last email: "are we considering this issue of application of US public law to ICANN, and the problems that it may cause with respect to its policy processes, and being able to appropriately carry out its global governance role? " The concerns around application of public law are very different than those of application of private law -- and often different actors have these two different kinds of concerns. Public law also have application over private law cases. If this group does not intend to get into the 'application of public law' question and stick to issues of private law, then let it decide and state as much in clear terms. Such actors whose interest in the jurisdiction question comes primarily from the public law aspect can then disengage from spending further time in this process - as for instance I will like to do. Third, we should put aside "confirming and assessing the gap analysis" for the moment. There is still a diversity of views on what this "gap analysis" was and what we need to do to confirm and assess it. As a result, our time has been spent discussing the parameters of the assignment, rather than working on the assignment itself. I believe that we will be better able to define the scope of this item and move to substance, if we spend some time looking at the substance of an issue that is clearly within our scope. After we finish clarifying the multiple layers of jurisdiction, we should move to an issue that is clearly within our scope -- something we have to do. That way we can move to the substance of the issue and not spend a lot of time on "scope." An issue that is clearly within our scope relates to ICANN's jurisdictions for settlement of disputes (i.e., venue and choice of law). One way is to look at this is as concerning the application of private law on iCANN matters. But then, like in the case of .xxx, what if the dispute invokes a public law (US competition law in this instance) -- which one can be assured that every disputant will do as long as it can find a favourable US public law which seems to side with the way the disputant wants things to go. As we explore the issue of 'settlement of disputes' are we going to look only to private law part and not public law? That IMHO would be quite inappropriate. But then if we are going to look into both private law and public law elements, the discussion gets messy because private law can involve choice of jurisdiction but not public law. This is why I think it is best if we divide our work and discussions as I suggested above, separately about issues of public law and those of private law. But, as I said before, issues of public law are simply out, let us then be clear about it. I request a clarification by the chairs. There should not be any question that this is within the scope of our group (Annex 12 refers to this as the "focus" for our group). Based on Annex 12, this involves looking at: "The influence that ICANN’s existing jurisdiction" relating to resolution of disputes "may have on the actual operation of policies Application of US public law on ICANN has enormous influence on 'actual operation of (ICANN) policies'. And so we are very much within our mandate in discussing issues arising from 'public law' aspect. and accountability mechanisms." I suggest that we examine this "influence" and determine what this "influence" is. Our work looking at venue and choice of law in the "multiple layers of jurisdiction" will help us in this task. I gave a few instances in my last email of influence of US public law on operation of ICANN policies. Would these examples qualify to be considered under this or not? A note on process -- it is very important that we focus on creating written material. In our calls, we should be working on and working from these written materials. Ultimately, these writings will feed into our deliverable. Put another way, you should focus your contributions on adding to the drafts (currently, the "layers of jurisdiction" document), rather than on relying solely on oral interventions in our calls -- after all we have 168 hours in a week, and only 1 hour for our call. I agree. Calls can only help confirm or resolve some outstanding issues, and lay further directions. What we can accomplish in writing we should do. In that regard, I also think that to th extent issues can be addressed and resolved in email exchanges here they best be done so... Thanks, parminder I look forward to our upcoming call. Best regards, Greg _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org><mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
On Monday 17 October 2016 10:49 AM, Schweighofer Erich wrote:
Good clarification.
Please add to „constraints on free choice in private law“: Many countries (e.g. EU legislation, Lugano Convention) restrict choice of law and forum in favour of consumers.
Best, Erich Schweighofer
Yes, so also in most other countries... Therefore not only is it of prime importance in our discussions on jurisdiction to distinguish between public law - where no choice of jurisdiction is available -- and private law -- where such choice 'may' in certain cases be available, it is also important to understand and highlight that public law can trounce private law. And so while ICANN and a contracting party may choose a certain jurisdiction of application on matters of contract between them, US public law (where ICANN is located and incorporated) may still come in and decide that certain matters of the contract attract public law application, and intervene accordingly. parminder
*Von:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *Im Auftrag von *parminder *Gesendet:* Montag, 17. Oktober 2016 07:14 *An:* Kavouss Arasteh *Cc:* ws2-jurisdiction@icann.org *Betreff:* Re: [Ws2-jurisdiction] Our work so far, and a way forward
On Sunday 16 October 2016 07:08 PM, Kavouss Arasteh wrote:
Dear Parminder
Thank you very much for the message.
You said for public law
/"in the application of public law there is no choice of jurisdiction available to the parties, and they are subject the jurisdiction of the state where //they are //located"/
/What do you mean by "//they" who are they ? both parties, one party ?/
You also said
/"in the application of private law, often though not always a choice of jurisdiction is available to the parties, especially as and if previously agreed to." /
It is not clear what you were to say, your statement is unfortunately vagueas
May you put it differently
Kavouss
Sure, Kavouss. I agree I could have been clearer.
Public law concerns issues between the society and one or more individuals. The society is legally represented by the state, and so in public law case/ dispute, this one side is fixed and cannot be changed. Any party(one or more) that gets involved in a public law dispute has no choice of jurisdiction, and the jurisdiction where this party (or parties if there is more than one) is located, and is a part of the wider society, will apply.
So, in case of public law, there is no choice of jurisdiction, jurisdiction of the place where a party (or parties) is located/ incorporated will apply.
In case of private law, it is an issue between two or more individuals (or legal entities) and in many cases it is possible that they can preselect a jurisdiction of application if there is a dispute about given matters for which the jurisdiction is preselected. This generally happens in various contracts.
Application of labour law is a good example. Labour law consists of some values and standards that a society decides must apply to every employment. It is a public law. There is *no* choice for a set of employer and employed, or even a trade union on the latter's behalf, to agree *not* to be subject to a society's labour laws. However, one can enter into a contract of service (which may otherwise look quite like employment) whereby the conditions of the contract can be mutual agreed. I dont know how it is different countries, but sometimes in such cases disputes under the contract can be subject to mutually preselected jurisdiction. Private law is in operation here.
IN case of private law, it may be possible to choose the jurisdiction that will be applicable to disputes.
However, public law can always upstage private law application; for instance labour courts can hold that certain contracts of service should really have been cases of regular employment, subject to public labour laws.
Uber for instance makes out private contracts (under private law) with its drivers. You would have heard that many drivers have sued the company that this arrangement should in fact be of regular employment, subject to labour laws (public law).
Hope this clarifies. parminder
2016-10-16 15:19 GMT+02:00 parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>>:
As I mentioned, the distinction between public law and private law is for instance spoken of in many judgements of the highest courts in India, and is in general understood and public law being that involving the interests of the state/ society in an issue and private law as only of specific individual parties. Anyway, since we need to focus on our task at hand, I will point to what should most matter to us with regard to this distinction. We are taking about the jurisdiction issue, and what may need to be and can be done in this regard about the jurisdiction over ICANN. In this regard it is most salient that
in the application of public law there is no choice of jurisdiction available to the parties, and they are subject the jurisdiction of the state where they are located
in the application of private law, often though not always a choice of jurisdiction is available to the parties, especially as and if previously agreed to.
anyway, as Milton says, it is more important to address the kind of scenarios that I have listed.
thanks, parminder
On Tuesday 11 October 2016 10:53 PM, Nigel Roberts wrote:
I do not know if the US has a different definition, but in the UK 'public law' means law that applies to actions of the Government.
So an action in judicial review to overturn an adverse decision by an executive branch decision-maker is an action in public law.
On 11/10/16 16:19, Jeff Neuman wrote:
Although I am a properly licensed attorney in the United States, I am not clear on what the definition is of “public law” vs. private law. That is not a concept that I am familiar with. Are talking about statutory law vs. common law, or are we talking about private causes of action vs. government causes of action.
Sorry, but just trying to wrap my head around this and why it matters.
*Jeffrey J. Neuman*
*Senior Vice President *|*Valideus USA***| *Com Laude USA*
1751 Pinnacle Drive, Suite 600
Mclean, VA 22102, United States
E: jeff.neuman@valideus.com <mailto:jeff.neuman@valideus.com> <mailto:jeff.neuman@valideus.com> <mailto:jeff.neuman@valideus.com>or jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com> <mailto:jeff.neuman@comlaude.com> <mailto:jeff.neuman@comlaude.com>
T: +1.703.635.7514 <tel:%2B1.703.635.7514>
M: +1.202.549.5079 <tel:%2B1.202.549.5079>
@Jintlaw
*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Mueller, Milton L *Sent:* Tuesday, October 11, 2016 10:51 AM *To:* parminder <parminder@itforchange.net> <mailto:parminder@itforchange.net>; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Our work so far, and a way forward
I don’t think the question of public law is out of consideration. There is much talk of “applicable [public] law” when we consider dispute resolution/choice of law, for example. However, it is not clear how those issues fit into the “jurisdiction layer” model that seems to be clarifying and driving our agenda. So I hope Greg and Vinay can weigh in on that issue for us.
If I understand you correctly, public law issues are analogous to a “stress test;” there is no major issue with it now, but we need to explore how the new ICANN regime will react if something happens. E.g., the European Commission opens an antitrust investigation into ICANN, or a (unlikely) Trump administration pushes a bill through Congress re-regulating ICANN
*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> <mailto:ws2-jurisdiction-bounces@icann.org> <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Tuesday, October 11, 2016 3:59 AM *To:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> <mailto:ws2-jurisdiction@icann.org> <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Our work so far, and a way forward
On Monday 10 October 2016 10:28 AM, Greg Shatan wrote:
All,
In order to move forward, and based on the discussions so far, I suggest the following approach.
First, we should continue the current approach of defining and refining the various layers of jurisdiction, and I encourage you all to go to the Google doc and add your views.
https://docs.google.com/document/d/1oE9xDIAJhr4Nx7vNO_mWotSXuUtTgJMRs6U92yTg...
Second, we won't investigate changing ICANN's headquarters or incorporation jurisdiction at this time. However, it's not off the table -- if we identify an issue during our work and we can't find a less drastic way to deal with that issue, we will revisit this point at that time. We can then revisit the concerns that people have raised regarding such a recommendation in the context of a particular issue.
While I can always insert this in the Google doc, I prefer to first discuss this here. (And yes I am repeating it.) The jurisdiction issue is best divided as (1) application of public law, (2) application of private law, (3) the rest of sundry stuff - like about different global offices and interaction with respective domestic jurisdiction (these are of relatively minor significance, and there may not be much to 'decide' about them in advance)
Place of incorporation and location of HQ (which is almost always the same) may be the proxy for 'application of public law' but they do not necessarily conflate. US government by decree has given jurisdictional immunities even to such bodies that are *not* created under international law and simply registered as private bodies, in the US or elsewhere. This certainly is an important possibility to look into for ICANN, which insulates it from application of US public law - in terms of its key organisational activities -- without moving the headquarters or even jurisdiction of incorporation.
I will repeat the question I put to the chairs in my last email: "are we considering this issue of application of US public law to ICANN, and the problems that it may cause with respect to its policy processes, and being able to appropriately carry out its global governance role? "
The concerns around application of public law are very different than those of application of private law -- and often different actors have these two different kinds of concerns. Public law also have application over private law cases.
If this group does not intend to get into the 'application of public law' question and stick to issues of private law, then let it decide and state as much in clear terms. Such actors whose interest in the jurisdiction question comes primarily from the public law aspect can then disengage from spending further time in this process - as for instance I will like to do.
Third, we should put aside "confirming and assessing the gap analysis" for the moment. There is still a diversity of views on what this "gap analysis" was and what we need to do to confirm and assess it. As a result, our time has been spent discussing the parameters of the assignment, rather than working on the assignment itself. I believe that we will be better able to define the scope of this item and move to substance, if we spend some time looking at the substance of an issue that is clearly within our scope.
After we finish clarifying the multiple layers of jurisdiction, we should move to an issue that is clearly within our scope -- something we have to do. That way we can move to the substance of the issue and not spend a lot of time on "scope."
An issue that is clearly within our scope relates to ICANN's jurisdictions for settlement of disputes (i.e., venue and choice of law).
One way is to look at this is as concerning the application of private law on iCANN matters. But then, like in the case of .xxx, what if the dispute invokes a public law (US competition law in this instance) -- which one can be assured that every disputant will do as long as it can find a favourable US public law which seems to side with the way the disputant wants things to go. As we explore the issue of 'settlement of disputes' are we going to look only to private law part and not public law? That IMHO would be quite inappropriate. But then if we are going to look into both private law and public law elements, the discussion gets messy because private law can involve choice of jurisdiction but not public law. This is why I think it is best if we divide our work and discussions as I suggested above, separately about issues of public law and those of private law.
But, as I said before, issues of public law are simply out, let us then be clear about it. I request a clarification by the chairs.
There should not be any question that this is within the scope of our group (Annex 12 refers to this as the "focus" for our group). Based on Annex 12, this involves looking at: "The influence that ICANN’s existing jurisdiction" relating to resolution of disputes "may have on the actual operation of policies
Application of US public law on ICANN has enormous influence on 'actual operation of (ICANN) policies'. And so we are very much within our mandate in discussing issues arising from 'public law' aspect.
and accountability mechanisms." I suggest that we examine this "influence" and determine what this "influence" is. Our work looking at venue and choice of law in the "multiple layers of jurisdiction" will help us in this task.
I gave a few instances in my last email of influence of US public law on operation of ICANN policies. Would these examples qualify to be considered under this or not?
A note on process -- it is very important that we focus on creating written material. In our calls, we should be working on and working from these written materials. Ultimately, these writings will feed into our deliverable. Put another way, you should focus your contributions on adding to the drafts (currently, the "layers of jurisdiction" document), rather than on relying solely on oral interventions in our calls -- after all we have 168 hours in a week, and only 1 hour for our call.
I agree. Calls can only help confirm or resolve some outstanding issues, and lay further directions. What we can accomplish in writing we should do. In that regard, I also think that to th extent issues can be addressed and resolved in email exchanges here they best be done so...
Thanks, parminder
I look forward to our upcoming call.
Best regards,
Greg
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Parminder Would you not agree that a better formulation would be that in any question of public law, the Law and Jurisdiction is, usually, the law that is generally the law and jurisdication that applies, generally, to the RELEVANT PUBLIC AUTHORITY (sometimes called 'emanation of the state')? Examples: Iin determining a public law question of an English town council, the law of England-and-Wales applies, and the English High Court has jurisdiction. Or for a Scottish police authority, Scottish law applies, and the Court of Session has jurisdiction under Chapter 58, similarly. In a question relating to whether the actions of a German Federal ministry are lawful, German law applies and the Administrative Court would have jurisdication. (If the question was about the constutionality of their actions, it would, I expect, be the Constitutional Count ). I said 'usually' at the start, since there are exceptions. Countries with a Federal system of government will have specific rules relating to the relationship of different tiers. European Law is another. At the moment, the UK Government is still subject to EU law, and in any question relating to the interpretation of EU law, the ECJ has ultimate jurisdiction. US lawyers can provide similar examples of where and how you take State and Federal official bodies to court. However, NONE OF THIS IS ANY LONGER RELEVANT, unless someone here can persuade me otherwise. Since Oct 1st, public law is not a concern for ICANN (except perhaps in any question that may arise considering the legality or otherwise of actions by individual GAC members under their own domestic law). ICANN is an entirely private law based entity. It deals in domestic private law (i.e. when it contracts with law service providers, in whatever context) and international private law (when it deals with registries and registries, LARGELY (but not necessarily exclusively) under Californian law and its conflict-of-law provisions. So why are we even talking about it?? On 17/10/16 06:13, parminder wrote:
/"in the application of public law there is no choice of jurisdiction available to the parties, and they are subject the jurisdiction of the state where they are located"/
On Monday 17 October 2016 01:35 PM, Nigel Roberts wrote:
Parminder
Would you not agree that a better formulation would be that in any question of public law, the Law and Jurisdiction is, usually, the law that is generally the law and jurisdication that applies, generally, to the RELEVANT PUBLIC AUTHORITY (sometimes called 'emanation of the state')?
Nigel, if you are saying that public law is only such law that applies to public authorities then I am unable to agree with this definition. Criminal law is one of most well known examples of public law which of course is applicable on everyone and not just public authorities. Sol is for instance, labour law, all regulatory enforcements, and the such. Even thisauthoritative looking website <http://www.allaboutlaw.co.uk/stage/areas-of-law/public-law> from UK says, "In the UK, public law is made up of constitutional/administrative law, tax law and criminal law." It further says, "There are several theories as to why public law is different to private law. These have evolved over time but it’s widely regarded that a combination of the subjection theory and subject theory. The subjection theory suggests that public law governs the relationship between the person and the state and private law governs relationships of individuals. The subject theory suggests that if a person find themselves in membership of a public body, public law applies." It also confirms my earlier example of how employment could both be guided by public law (ex., labour law) and private law (contract law). TO further quote form this UK legal website, " For example, employment law falls into both – the employment contract is a private law matter, whereas health and safety in the workplace is a public law issue." I think these quotations should make the matter clear.
snip
However, NONE OF THIS IS ANY LONGER RELEVANT, unless someone here can persuade me otherwise.
Since Oct 1st, public law is not a concern for ICANN (except perhaps in any question that may arise considering the legality or otherwise of actions by individual GAC members under their own domestic law).
Only if you define public law as that applicable to public authorities, which I am unable to agree with. PL see above quotes from a UK legal website about UK jurisprudence.
ICANN is an entirely private law based entity.
Completely untrue. It is subject to every single public law of the US.
It deals in domestic private law (i.e. when it contracts with law service providers, in whatever context) and international private law (when it deals with registries and registries, LARGELY (but not necessarily exclusively) under Californian law and its conflict-of-law provisions.
In terms of contract, it deals with private law (which still remains in the oversight of public law), but every internal - organisational aspect, as well as external -- governance and policy making part, remains fully subject to all US public laws. It should be so very obvious. In fact I am thinking, why are we even talking about it. Do you really believe that ICANN can make policies and do gTLD delegation in a manner that expressly is in conflict with US competition, or anti-discrimination law (say, only men can take up certain gTLD), and the might of the US state in its obligation to enforce US public law wont come down heavily on any such thing.... Do you really? parminder
So why are we even talking about it??
On 17/10/16 06:13, parminder wrote:
/"in the application of public law there is no choice of jurisdiction available to the parties, and they are subject the jurisdiction of the state where they are located"/
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You are of course correct in including criminal law in the wide definition of public law. But when we talk of an action in public law, we normally mean judicial review or something of that sort with the public authority as one of the parties. My point still stands though. Public law is of almost no relevance to ICANN which is a private law entity. On 17/10/16 09:36, parminder wrote:
On Monday 17 October 2016 01:35 PM, Nigel Roberts wrote:
Parminder
Would you not agree that a better formulation would be that in any question of public law, the Law and Jurisdiction is, usually, the law that is generally the law and jurisdication that applies, generally, to the RELEVANT PUBLIC AUTHORITY (sometimes called 'emanation of the state')?
Nigel, if you are saying that public law is only such law that applies to public authorities then I am unable to agree with this definition. Criminal law is one of most well known examples of public law which of course is applicable on everyone and not just public authorities. Sol is for instance, labour law, all regulatory enforcements, and the such.
Even thisauthoritative looking website <http://www.allaboutlaw.co.uk/stage/areas-of-law/public-law> from UK says, "In the UK, public law is made up of constitutional/administrative law, tax law and criminal law."
It further says, "There are several theories as to why public law is different to private law. These have evolved over time but it’s widely regarded that a combination of the subjection theory and subject theory. The subjection theory suggests that public law governs the relationship between the person and the state and private law governs relationships of individuals. The subject theory suggests that if a person find themselves in membership of a public body, public law applies."
It also confirms my earlier example of how employment could both be guided by public law (ex., labour law) and private law (contract law). TO further quote form this UK legal website, " For example, employment law falls into both – the employment contract is a private law matter, whereas health and safety in the workplace is a public law issue."
I think these quotations should make the matter clear.
snip
However, NONE OF THIS IS ANY LONGER RELEVANT, unless someone here can persuade me otherwise.
Since Oct 1st, public law is not a concern for ICANN (except perhaps in any question that may arise considering the legality or otherwise of actions by individual GAC members under their own domestic law).
Only if you define public law as that applicable to public authorities, which I am unable to agree with. PL see above quotes from a UK legal website about UK jurisprudence.
ICANN is an entirely private law based entity.
Completely untrue. It is subject to every single public law of the US.
It deals in domestic private law (i.e. when it contracts with law service providers, in whatever context) and international private law (when it deals with registries and registries, LARGELY (but not necessarily exclusively) under Californian law and its conflict-of-law provisions.
In terms of contract, it deals with private law (which still remains in the oversight of public law), but every internal - organisational aspect, as well as external -- governance and policy making part, remains fully subject to all US public laws. It should be so very obvious. In fact I am thinking, why are we even talking about it. Do you really believe that ICANN can make policies and do gTLD delegation in a manner that expressly is in conflict with US competition, or anti-discrimination law (say, only men can take up certain gTLD), and the might of the US state in its obligation to enforce US public law wont come down heavily on any such thing.... Do you really?
parminder
So why are we even talking about it??
On 17/10/16 06:13, parminder wrote:
/"in the application of public law there is no choice of jurisdiction available to the parties, and they are subject the jurisdiction of the state where they are located"/
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On Monday 17 October 2016 02:15 PM, Nigel Roberts wrote:
You are of course correct in including criminal law in the wide definition of public law.
But when we talk of an action in public law, we normally mean judicial review or something of that sort with the public authority as one of the parties.
My point still stands though.
Public law is of almost no relevance to ICANN which is a private law entity.
I will perhaps like to be able to say that my organisation, as an NGO in India, is an entirely private law entity and Indian public laws are of no relevance to it.... However, in many different ways, I am painfully aware, how relevant they are, and how easily they can be breathing down my neck.... In any case, not to mire in definitions, I have provided 5 or 6 different kinds of scenario (the mail to which Milton responded) of application of US public law on ICANN, on none of which Milton said that it is not applicable. I request you to comment on each and if you really think so tell me that US public law, as I describe it, is not applicable on ICANN in these specific instances. Thanks, parminder
On 17/10/16 09:36, parminder wrote:
On Monday 17 October 2016 01:35 PM, Nigel Roberts wrote:
Parminder
Would you not agree that a better formulation would be that in any question of public law, the Law and Jurisdiction is, usually, the law that is generally the law and jurisdication that applies, generally, to the RELEVANT PUBLIC AUTHORITY (sometimes called 'emanation of the state')?
Nigel, if you are saying that public law is only such law that applies to public authorities then I am unable to agree with this definition. Criminal law is one of most well known examples of public law which of course is applicable on everyone and not just public authorities. Sol is for instance, labour law, all regulatory enforcements, and the such.
Even thisauthoritative looking website <http://www.allaboutlaw.co.uk/stage/areas-of-law/public-law> from UK says, "In the UK, public law is made up of constitutional/administrative law, tax law and criminal law."
It further says, "There are several theories as to why public law is different to private law. These have evolved over time but it’s widely regarded that a combination of the subjection theory and subject theory. The subjection theory suggests that public law governs the relationship between the person and the state and private law governs relationships of individuals. The subject theory suggests that if a person find themselves in membership of a public body, public law applies."
It also confirms my earlier example of how employment could both be guided by public law (ex., labour law) and private law (contract law). TO further quote form this UK legal website, " For example, employment law falls into both – the employment contract is a private law matter, whereas health and safety in the workplace is a public law issue."
I think these quotations should make the matter clear.
snip
However, NONE OF THIS IS ANY LONGER RELEVANT, unless someone here can persuade me otherwise.
Since Oct 1st, public law is not a concern for ICANN (except perhaps in any question that may arise considering the legality or otherwise of actions by individual GAC members under their own domestic law).
Only if you define public law as that applicable to public authorities, which I am unable to agree with. PL see above quotes from a UK legal website about UK jurisprudence.
ICANN is an entirely private law based entity.
Completely untrue. It is subject to every single public law of the US.
It deals in domestic private law (i.e. when it contracts with law service providers, in whatever context) and international private law (when it deals with registries and registries, LARGELY (but not necessarily exclusively) under Californian law and its conflict-of-law provisions.
In terms of contract, it deals with private law (which still remains in the oversight of public law), but every internal - organisational aspect, as well as external -- governance and policy making part, remains fully subject to all US public laws. It should be so very obvious. In fact I am thinking, why are we even talking about it. Do you really believe that ICANN can make policies and do gTLD delegation in a manner that expressly is in conflict with US competition, or anti-discrimination law (say, only men can take up certain gTLD), and the might of the US state in its obligation to enforce US public law wont come down heavily on any such thing.... Do you really?
parminder
So why are we even talking about it??
On 17/10/16 06:13, parminder wrote:
/"in the application of public law there is no choice of jurisdiction available to the parties, and they are subject the jurisdiction of the state where they are located"/
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On Tuesday 11 October 2016 08:20 PM, Mueller, Milton L wrote:
I don’t think the question of public law is out of consideration. There is much talk of “applicable [public] law” when we consider dispute resolution/choice of law, for example. However, it is not clear how those issues fit into the “jurisdiction layer” model that seems to be clarifying and driving our agenda. So I hope Greg and Vinay can weigh in on that issue for us.
That would be eminently useful. Meanwhile I have tried to insert the issue in the google doc on jurisdictional layers.
If I understand you correctly, public law issues are analogous to a “stress test;” there is no major issue with it now, but we need to explore how the new ICANN regime will react if something happens.
Yes and no. It depends on whether you considered the issue of setting up of outer 'accountability mechanisms' - as were set up earlier in the process - as analogous to a "stress test". Even there one could say, there is really no actual issue right now, but one needs to be prepared for what would happen as some - very likely - issues come up. Same with the "application of public law" issue - it concerns matters that are almost structurally imminent, sooner or later, as could have been said about outer accountability attracting matters. In fact, one can say even more imminent in case of "public law application" than attracting the need for activating the outer accountability mechanism . We know that .xxx and .africa cases are already in the court, and many more would come as thousands of gTLDs are taken up
E.g., the European Commission opens an antitrust investigation into ICANN, or a (unlikely) Trump administration pushes a bill through Congress re-regulating ICANN
Other polities claiming jurisdiction over ICANN - like in your EU example, is one class of problems. These can only be avoided if all jurisdictions give a prior undertaking that they would not do any such thing, which generally comes as part of a treaty. But right now I am less interested in this class of problems, and more in those which are likely to arise from within the US. I am not even beginning to think of what a Trump administration may do -- though in fact the rest of the world should be thinking of it. Core Internet infrastructure is too important not to get into these kinds of thoughts. It could be Trump, or another like him in future (allow me to make a political comment -- the race has been so close that one can easily say that an equally vicious but a little less stupid Trump could have quite likely made it to the White House :) ). I am still only thinking of things that are imminent under any US administration. You or anyone else hasnt replied to some questions I have repeatedly raised: 1. What happens if the concerned US court holds .xxx to be against US's competition law? Describe the steps that will follow, and how can ICANN avoid bending its policy making process and authority to the will of the US state. 2. Same about .africa. 3. With 100s of new gTLDs getting operational, many of them private closed ones with generic names (but that is hardly the only issue, there could be many others), is it not obvious that we will be seeing many court cases around them... What would ICANN do the moment an adverse judgement comes? 4. What if OFAC doesn’t give licence to ICANN for dealing with a particular country due to great deterioration of relationships with the US. 5. What if the FCC revises its decision of forbearance about its authority over Internet addressing system (as it did on the issue of whether Internet was title one or title two)? 6. There are almost as many US agencies that can exercise mandate over ICANN's domain name policies as there are sectors that the Internet and thus its naming system impacts. (ICANN allowed some 'regulatory policies' to buyers of .pharmacy, and going forward as it also does this with many other sectoral domain names, all of these can be challenged, in the courts, as well as with sectoral regulatory bodies). What then? If you even begin trying to deal with these questions, you will realise what a volcanic earth we are sitting upon, in refusing to see the public law jurisdiction issue. thanks parminder
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Tuesday, October 11, 2016 3:59 AM *To:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] Our work so far, and a way forward
On Monday 10 October 2016 10:28 AM, Greg Shatan wrote:
All,
In order to move forward, and based on the discussions so far, I suggest the following approach.
First, we should continue the current approach of defining and refining the various layers of jurisdiction, and I encourage you all to go to the Google doc and add your views. https://docs.google.com/document/d/1oE9xDIAJhr4Nx7vNO_mWotSXuUtTgJMRs6U92yTg...
Second, we won't investigate changing ICANN's headquarters or incorporation jurisdiction at this time. However, it's not off the table -- if we identify an issue during our work and we can't find a less drastic way to deal with that issue, we will revisit this point at that time. We can then revisit the concerns that people have raised regarding such a recommendation in the context of a particular issue.
While I can always insert this in the Google doc, I prefer to first discuss this here. (And yes I am repeating it.) The jurisdiction issue is best divided as (1) application of public law, (2) application of private law, (3) the rest of sundry stuff - like about different global offices and interaction with respective domestic jurisdiction (these are of relatively minor significance, and there may not be much to 'decide' about them in advance)
Place of incorporation and location of HQ (which is almost always the same) may be the proxy for 'application of public law' but they do not necessarily conflate. US government by decree has given jurisdictional immunities even to such bodies that are *not* created under international law and simply registered as private bodies, in the US or elsewhere. This certainly is an important possibility to look into for ICANN, which insulates it from application of US public law - in terms of its key organisational activities -- without moving the headquarters or even jurisdiction of incorporation.
I will repeat the question I put to the chairs in my last email: "are we considering this issue of application of US public law to ICANN, and the problems that it may cause with respect to its policy processes, and being able to appropriately carry out its global governance role? "
The concerns around application of public law are very different than those of application of private law -- and often different actors have these two different kinds of concerns. Public law also have application over private law cases.
If this group does not intend to get into the 'application of public law' question and stick to issues of private law, then let it decide and state as much in clear terms. Such actors whose interest in the jurisdiction question comes primarily from the public law aspect can then disengage from spending further time in this process - as for instance I will like to do.
Third, we should put aside "confirming and assessing the gap analysis" for the moment. There is still a diversity of views on what this "gap analysis" was and what we need to do to confirm and assess it. As a result, our time has been spent discussing the parameters of the assignment, rather than working on the assignment itself. I believe that we will be better able to define the scope of this item and move to substance, if we spend some time looking at the substance of an issue that is clearly within our scope.
After we finish clarifying the multiple layers of jurisdiction, we should move to an issue that is clearly within our scope -- something we have to do. That way we can move to the substance of the issue and not spend a lot of time on "scope."
An issue that is clearly within our scope relates to ICANN's jurisdictions for settlement of disputes (i.e., venue and choice of law).
One way is to look at this is as concerning the application of private law on iCANN matters. But then, like in the case of .xxx, what if the dispute invokes a public law (US competition law in this instance) -- which one can be assured that every disputant will do as long as it can find a favourable US public law which seems to side with the way the disputant wants things to go. As we explore the issue of 'settlement of disputes' are we going to look only to private law part and not public law? That IMHO would be quite inappropriate. But then if we are going to look into both private law and public law elements, the discussion gets messy because private law can involve choice of jurisdiction but not public law. This is why I think it is best if we divide our work and discussions as I suggested above, separately about issues of public law and those of private law.
But, as I said before, issues of public law are simply out, let us then be clear about it. I request a clarification by the chairs.
There should not be any question that this is within the scope of our group (Annex 12 refers to this as the "focus" for our group). Based on Annex 12, this involves looking at: "The influence that ICANN’s existing jurisdiction" relating to resolution of disputes "may have on the actual operation of policies
Application of US public law on ICANN has enormous influence on 'actual operation of (ICANN) policies'. And so we are very much within our mandate in discussing issues arising from 'public law' aspect.
and accountability mechanisms." I suggest that we examine this "influence" and determine what this "influence" is. Our work looking at venue and choice of law in the "multiple layers of jurisdiction" will help us in this task.
I gave a few instances in my last email of influence of US public law on operation of ICANN policies. Would these examples qualify to be considered under this or not?
A note on process -- it is very important that we focus on creating written material. In our calls, we should be working on and working from these written materials. Ultimately, these writings will feed into our deliverable. Put another way, you should focus your contributions on adding to the drafts (currently, the "layers of jurisdiction" document), rather than on relying solely on oral interventions in our calls -- after all we have 168 hours in a week, and only 1 hour for our call.
I agree. Calls can only help confirm or resolve some outstanding issues, and lay further directions. What we can accomplish in writing we should do. In that regard, I also think that to th extent issues can be addressed and resolved in email exchanges here they best be done so...
Thanks, parminder
I look forward to our upcoming call.
Best regards,
Greg
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1. What happens if the concerned US court holds .xxx to be against US's competition law? Describe the steps that will follow, and how can ICANN avoid bending its policy making process and authority to the will of the US state. MM: I don't think that's a problem for ICANN. It's a problem for the entity that was delegated .XXX. Since XXX holds a tiny sliver of the domain name market, even in the porn space, this is a very remote risk. 2. Same about .africa. Same response. 3. With 100s of new gTLDs getting operational, many of them private closed ones with generic names (but that is hardly the only issue, there could be many others), is it not obvious that we will be seeing many court cases around them... What would ICANN do the moment an adverse judgement comes? See above. Not an issue for ICANN. Most of these court cases are between private parties, but even regulations or antitrust actions would be directed against the holder of the gTLD, not ICANN. Only if ICANN itself were accused of fostering a monopoly would it be the target of such litigation. 4. What if OFAC doesn't give licence to ICANN for dealing with a particular country due to great deterioration of relationships with the US. Now, you have hit on a real issue. I believe however that NTIA has taken some precautions here, but I don't recall what they are. 5. What if the FCC revises its decision of forbearance about its authority over Internet addressing system (as it did on the issue of whether Internet was title one or title two)? MM: This would require legislation, because nothing in the existing Communications Act gives the FCC any authority over DNS or IP addressing. So this is just another example of "what if the US legislates to regulate ICANN in some way?" Which of course is a risk if ICANN were in ANY jurisdiction. 6. There are almost as many US agencies that can exercise mandate over ICANN's domain name policies as there are sectors that the Internet and thus its naming system impacts. (ICANN allowed some 'regulatory policies' to buyers of .pharmacy, and going forward as it also does this with many other sectoral domain names, all of these can be challenged, in the courts, as well as with sectoral regulatory bodies). What then? MM: These dangers are greatly diminished post-transition. If you even begin trying to deal with these questions, you will realise what a volcanic earth we are sitting upon, in refusing to see the public law jurisdiction issue. MM: Don't agree we are sitting on a volcano, but do agree there are issues that need to be anticipated, a kind of "stress test"
Milton, Thanks for your engagement with these issues. Some responses below. On Tuesday 11 October 2016 10:21 PM, Mueller, Milton L wrote:
1. What happens if the concerned US court holds .xxx to be against US's competition law? Describe the steps that will follow, and how can ICANN avoid bending its policy making process and authority to the will of the US state.
MM: I don’t think that’s a problem for ICANN. It’s a problem for the entity that was delegated .XXX. Since XXX holds a tiny sliver of the domain name market, even in the porn space, this is a very remote risk.
Is there not problem even if .xxx was not a US company owned, which has no reason to like/ accept being governed by US laws? Milton, when we frame regimes for rule of law, and of justice, we do not say, well that is small fry, a small 'sliver of the market', rules and justice has to be the same for all - small or big. It is a question of principle -- can US law force ICANN polices, or their operationalisation ? If they can, as you seem to agree here, it is problem that we must find a solution to. Annex 12 says "At this point in the CCWG-Accountability’s work, the main issues that need to be investigated within Work Stream 2 relate to the influence that I/*CANN ́s existing jurisdiction may have on the actual operation of policies */and accountability mechanisms." (emphasis added) This is directly an issue where ICANN's existing jurisdiction has influence on actual operation of its policies -- in this case its policies under which .xxx was delegated.
2. Same about .africa.
Same response.
Same response from me as well - other than that here, unlike for .xxx, those who claim the gTLD, and thus will be affected by an adverse decision of the US court, are parties not belonging to the US and thus should not be dictated to by US courts.
3. With 100s of new gTLDs getting operational, many of them private closed ones with generic names (but that is hardly the only issue, there could be many others), is it not obvious that we will be seeing many court cases around them... What would ICANN do the moment an adverse judgement comes?
See above. Not an issue for ICANN. Most of these court cases are between private parties, but even regulations or antitrust actions would be directed against the holder of the gTLD, not ICANN. Only if ICANN itself were accused of fostering a monopoly would it be the target of such litigation.
Again, you seem to be fully unaffected by how global parties - companies, and people - who expect ICANN to be a global governance body and thus do thing just-fully, and they able to partake equally of the rights and benefits of a global domain name governance systems are unable to fulfil this legitimate, and democratic, expectation. If this means nothing to you, and only such actions that directly affect ICANN's organisation etc are meaningful, I have not much more to say here... My principal case is of how ICANN's current jurisdiction affects the global DNS, its governance, its legitimacy, justfullness, etc -- and not just now it affects ICANN's organisation. Perhaps lets separate these two issues then, treat them separately. (1), impact of ICANN jurisdiction on ICANN's organisation, (2) its impact on ICANN governance and operation of global DNS, including allocation of gTLDs/ ccTLDs, and managing the relationship with them. For the me (2) is by far more important, but if (1) is your focus, we can consider them both, separately.
4. What if OFAC doesn’t give licence to ICANN for dealing with a particular country due to great deterioration of relationships with the US.
Now, you have hit on a real issue. I believe however that NTIA has taken some precautions here, but I don’t recall what they are.
NTIA's 'precautions' - even more so, the unrecollected ones :) - are meaningless for non US people/ businesses who really are looking to get out of NTIA's 'protection' - isnt that all this oversight transition is supposed to be about ?
5. What if the FCC revises its decision of forbearance about its authority over Internet addressing system (as it did on the issue of whether Internet was title one or title two)?
MM: This would require legislation, because nothing in the existing Communications Act gives the FCC any authority over DNS or IP addressing. So this is just another example of “what if the US legislates to regulate ICANN in some way?” Which of course is a risk if ICANN were in ANY jurisdiction.
This is not true -- in the same way as, without any new legislation, FCC revised its stand on forbearance over seeing Internet as a telecom utility, and made it title 2. 'Forbearance' has this legal meaning of legal authority being there but not being exercised -- FCC's chair has clearly used the term 'forbear' in recent utterances about FCC's authority over Internet addresses. And in any case, what if as you say such a thing will require a legislation from the US legislature -- that is no comfort to non USians/
6. There are almost as many US agencies that can exercise mandate over ICANN's domain name policies as there are sectors that the Internet and thus its naming system impacts. (ICANN allowed some 'regulatory policies' to buyers of .pharmacy, and going forward as it also does this with many other sectoral domain names, all of these can be challenged, in the courts, as well as with sectoral regulatory bodies). What then?
MM: These dangers are greatly diminished post-transition.
I see now way how the danger of any US executive authority exercising mandate over ICANN have diminished post transition other than your word for it..... And then I do not want them diminished (even that they havent), I want them extinguished. Statutory US bodies need to and will do whatever they can to further their policies and law, and would order any US body accordingly - nothing has changed, one may just be imagining that it has.
If you even begin trying to deal with these questions, you will realise what a volcanic earth we are sitting upon, in refusing to see the public law jurisdiction issue.
MM: Don’t agree we are sitting on a volcano, but do agree there are issues that need to be anticipated, a kind of “stress test”
Yes, thanks, exactly that. We need to follow through each of these scenarios to possible logical conclusions - looking at all plausible ways they can go. parminder
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An important scenario that I forgot to list earlier, though I have been discussing it variously, is as follows: US customs has, over the years, been very active seizing domain names of business they see as offending US intellectual property law,, even for businesses that mostly operated outside of the US. And since most businesses have been .com they went to .com registry to effect these seizures - .rojadirecta is a well known case. What happens when many global businesses take up gTLDs in their names - and I keep giving the hypothetical example of an Indian generic drug company, Generic Drugs, with a hypothetical gTLD .genericdrugs ... A gTLD can only be seized by ICANN, and I see no reason that US customs will no similarly force ICANN to do what they were previously getting done through Verisign. (If you dont think so, please show me reason/ justification.) In the circumstances, Generic Drugs, (1) should either not take a gTLD, which is a denial of its right to leverage the global DNS as other global businesses are doing, and thus not acceptable, or (2) it should begin observing US laws even with regard to its global and national business outside the US (where US companies may be in competition with it), which is even less acceptable as US's continued jurisdiction over ICANN gets used to extend US laws globally (something already being done by many other means, and strongly resented globally) I took an drugs company example, but it could be a company in any other area, as all sectors get networked, digitalised, data-fied, and so on, and therefore their digital avatar, space and digital space signifiers (domain names) become central to their businesses. It could be an education company -- say a company that provides digital books to visually disabled. A global treaty recently got signed on this issue with against much resistance from the US, and it is still to be ratifed by the US and there are many powerful voices inside the US opposed to such ratification. Would such a company have to ever remain on tenterhooks about what US gov could do to its gTLD? This is how power really operates - it does not always have to act out, its presence is enough, and such thingd would see US excercise illegitimate political power over the whole world. It could be an increasingly digitised/ data-fied media company, an agriculture company, a transport company -- anyone!! Do these issues appear trivial to anyone? If not, what is their resolution? parminder On Sunday 16 October 2016 11:24 AM, parminder wrote:
Milton,
Thanks for your engagement with these issues. Some responses below.
On Tuesday 11 October 2016 10:21 PM, Mueller, Milton L wrote:
1. What happens if the concerned US court holds .xxx to be against US's competition law? Describe the steps that will follow, and how can ICANN avoid bending its policy making process and authority to the will of the US state.
MM: I don’t think that’s a problem for ICANN. It’s a problem for the entity that was delegated .XXX. Since XXX holds a tiny sliver of the domain name market, even in the porn space, this is a very remote risk.
Is there not problem even if .xxx was not a US company owned, which has no reason to like/ accept being governed by US laws? Milton, when we frame regimes for rule of law, and of justice, we do not say, well that is small fry, a small 'sliver of the market', rules and justice has to be the same for all - small or big. It is a question of principle -- can US law force ICANN polices, or their operationalisation ? If they can, as you seem to agree here, it is problem that we must find a solution to.
Annex 12 says "At this point in the CCWG-Accountability’s work, the main issues that need to be investigated within Work Stream 2 relate to the influence that I/*CANN ́s existing jurisdiction may have on the actual operation of policies */and accountability mechanisms." (emphasis added)
This is directly an issue where ICANN's existing jurisdiction has influence on actual operation of its policies -- in this case its policies under which .xxx was delegated.
2. Same about .africa.
Same response.
Same response from me as well - other than that here, unlike for .xxx, those who claim the gTLD, and thus will be affected by an adverse decision of the US court, are parties not belonging to the US and thus should not be dictated to by US courts.
3. With 100s of new gTLDs getting operational, many of them private closed ones with generic names (but that is hardly the only issue, there could be many others), is it not obvious that we will be seeing many court cases around them... What would ICANN do the moment an adverse judgement comes?
See above. Not an issue for ICANN. Most of these court cases are between private parties, but even regulations or antitrust actions would be directed against the holder of the gTLD, not ICANN. Only if ICANN itself were accused of fostering a monopoly would it be the target of such litigation.
Again, you seem to be fully unaffected by how global parties - companies, and people - who expect ICANN to be a global governance body and thus do thing just-fully, and they able to partake equally of the rights and benefits of a global domain name governance systems are unable to fulfil this legitimate, and democratic, expectation. If this means nothing to you, and only such actions that directly affect ICANN's organisation etc are meaningful, I have not much more to say here... My principal case is of how ICANN's current jurisdiction affects the global DNS, its governance, its legitimacy, justfullness, etc -- and not just now it affects ICANN's organisation.
Perhaps lets separate these two issues then, treat them separately. (1), impact of ICANN jurisdiction on ICANN's organisation, (2) its impact on ICANN governance and operation of global DNS, including allocation of gTLDs/ ccTLDs, and managing the relationship with them.
For the me (2) is by far more important, but if (1) is your focus, we can consider them both, separately.
4. What if OFAC doesn’t give licence to ICANN for dealing with a particular country due to great deterioration of relationships with the US.
Now, you have hit on a real issue. I believe however that NTIA has taken some precautions here, but I don’t recall what they are.
NTIA's 'precautions' - even more so, the unrecollected ones :) - are meaningless for non US people/ businesses who really are looking to get out of NTIA's 'protection' - isnt that all this oversight transition is supposed to be about ?
5. What if the FCC revises its decision of forbearance about its authority over Internet addressing system (as it did on the issue of whether Internet was title one or title two)?
MM: This would require legislation, because nothing in the existing Communications Act gives the FCC any authority over DNS or IP addressing. So this is just another example of “what if the US legislates to regulate ICANN in some way?” Which of course is a risk if ICANN were in ANY jurisdiction.
This is not true -- in the same way as, without any new legislation, FCC revised its stand on forbearance over seeing Internet as a telecom utility, and made it title 2. 'Forbearance' has this legal meaning of legal authority being there but not being exercised -- FCC's chair has clearly used the term 'forbear' in recent utterances about FCC's authority over Internet addresses. And in any case, what if as you say such a thing will require a legislation from the US legislature -- that is no comfort to non USians/
6. There are almost as many US agencies that can exercise mandate over ICANN's domain name policies as there are sectors that the Internet and thus its naming system impacts. (ICANN allowed some 'regulatory policies' to buyers of .pharmacy, and going forward as it also does this with many other sectoral domain names, all of these can be challenged, in the courts, as well as with sectoral regulatory bodies). What then?
MM: These dangers are greatly diminished post-transition.
I see now way how the danger of any US executive authority exercising mandate over ICANN have diminished post transition other than your word for it..... And then I do not want them diminished (even that they havent), I want them extinguished. Statutory US bodies need to and will do whatever they can to further their policies and law, and would order any US body accordingly - nothing has changed, one may just be imagining that it has.
If you even begin trying to deal with these questions, you will realise what a volcanic earth we are sitting upon, in refusing to see the public law jurisdiction issue.
MM: Don’t agree we are sitting on a volcano, but do agree there are issues that need to be anticipated, a kind of “stress test”
Yes, thanks, exactly that. We need to follow through each of these scenarios to possible logical conclusions - looking at all plausible ways they can go.
parminder
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Parminder I have not responded to this because it seems to me that your comments are based on a very extensive misunderstanding of the whole jurisdiction issue and I don’t have time to wade through them all. In a nutshell, you repeatedly mistake the jurisdiction in which a registry is incorporated with the jurisdiction in which ICANN is headquartered and therefore conclude erroneously that US law has an overwhelming influence on the policies. To give but one example, all domain seizures of .com domains have occurred because Verisign is a US company not because ICANN is a California corp. Changing or retaining ICANN’s current jurisdictional situation would not change anything in this regard. I also think this has been pointed out to you before but you’ve ignored it. So not willing to go into it more, Dr. Milton L Mueller Professor, School of Public Policy<http://spp.gatech.edu/> Georgia Institute of Technology Internet Governance Project http://internetgovernance.org/ From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Sunday, October 16, 2016 2:21 AM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Our work so far, and a way forward An important scenario that I forgot to list earlier, though I have been discussing it variously, is as follows: US customs has, over the years, been very active seizing domain names of business they see as offending US intellectual property law,, even for businesses that mostly operated outside of the US. And since most businesses have been .com they went to .com registry to effect these seizures - .rojadirecta is a well known case. What happens when many global businesses take up gTLDs in their names - and I keep giving the hypothetical example of an Indian generic drug company, Generic Drugs, with a hypothetical gTLD .genericdrugs ... A gTLD can only be seized by ICANN, and I see no reason that US customs will no similarly force ICANN to do what they were previously getting done through Verisign. (If you dont think so, please show me reason/ justification.) In the circumstances, Generic Drugs, (1) should either not take a gTLD, which is a denial of its right to leverage the global DNS as other global businesses are doing, and thus not acceptable, or (2) it should begin observing US laws even with regard to its global and national business outside the US (where US companies may be in competition with it), which is even less acceptable as US's continued jurisdiction over ICANN gets used to extend US laws globally (something already being done by many other means, and strongly resented globally) I took an drugs company example, but it could be a company in any other area, as all sectors get networked, digitalised, data-fied, and so on, and therefore their digital avatar, space and digital space signifiers (domain names) become central to their businesses. It could be an education company -- say a company that provides digital books to visually disabled. A global treaty recently got signed on this issue with against much resistance from the US, and it is still to be ratifed by the US and there are many powerful voices inside the US opposed to such ratification. Would such a company have to ever remain on tenterhooks about what US gov could do to its gTLD? This is how power really operates - it does not always have to act out, its presence is enough, and such thingd would see US excercise illegitimate political power over the whole world. It could be an increasingly digitised/ data-fied media company, an agriculture company, a transport company -- anyone!! Do these issues appear trivial to anyone? If not, what is their resolution? parminder On Sunday 16 October 2016 11:24 AM, parminder wrote: Milton, Thanks for your engagement with these issues . Some responses below. On Tuesday 11 October 2016 10:21 PM, Mueller, Milton L wrote: 1. What happens if the concerned US court holds .xxx to be against US's competition law? Describe the steps that will follow, and how can ICANN avoid bending its policy making process and authority to the will of the US state. MM: I don’t think that’s a problem for ICANN. It’s a problem for the entity that was delegated .XXX. Since XXX holds a tiny sliver of the domain name market, even in the porn space, this is a very remote risk. Is there not problem even if .xxx was not a US company owned, which has no reason to like/ accept being governed by US laws? Milton, when we frame regimes for rule of law, and of justice, we do not say, well that is small fry, a small 'sliver of the market', rules and justice has to be the same for all - small or big. It is a question of principle -- can US law force ICANN polices, or their operationalisation ? If they can, as you seem to agree here, it is problem that we must find a solution to. Annex 12 says "At this point in the CCWG-Accountability’s work, the main issues that need to be investigated within Work Stream 2 relate to the influence that ICANN ́s existing jurisdiction may have on the actual operation of policies and accountability mechanisms." (emphasis added) This is directly an issue where ICANN's existing jurisdiction has influence on actual operation of its policies -- in this case its policies under which .xxx was delegated. 2. Same about .africa. Same response. Same response from me as well - other than that here, unlike for .xxx, those who claim the gTLD, and thus will be affected by an adverse decision of the US court, are parties not belonging to the US and thus should not be dictated to by US courts. 3. With 100s of new gTLDs getting operational, many of them private closed ones with generic names (but that is hardly the only issue, there could be many others), is it not obvious that we will be seeing many court cases around them... What would ICANN do the moment an adverse judgement comes? See above. Not an issue for ICANN. Most of these court cases are between private parties, but even regulations or antitrust actions would be directed against the holder of the gTLD, not ICANN. Only if ICANN itself were accused of fostering a monopoly would it be the target of such litigation. Again, you seem to be fully unaffected by how global parties - companies, and people - who expect ICANN to be a global governance body and thus do thing just-fully, and they able to partake equally of the rights and benefits of a global domain name governance systems are unable to fulfil this legitimate, and democratic, expectation. If this means nothing to you, and only such actions that directly affect ICANN's organisation etc are meaningful, I have not much more to say here... My principal case is of how ICANN's current jurisdiction affects the global DNS, its governance, its legitimacy, justfullness, etc -- and not just now it affects ICANN's organisation. Perhaps lets separate these two issues then, treat them separately. (1), impact of ICANN jurisdiction on ICANN's organisation, (2) its impact on ICANN governance and operation of global DNS, including allocation of gTLDs/ ccTLDs, and managing the relationship with them. For the me (2) is by far more important, but if (1) is your focus, we can consider them both, separately. 4. What if OFAC doesn’t give licence to ICANN for dealing with a particular country due to great deterioration of relationships with the US. Now, you have hit on a real issue. I believe however that NTIA has taken some precautions here, but I don’t recall what they are. NTIA's 'precautions' - even more so, the unrecollected ones :) - are meaningless for non US people/ businesses who really are looking to get out of NTIA's 'protection' - isnt that all this oversight transition is supposed to be about ? 5. What if the FCC revises its decision of forbearance about its authority over Internet addressing system (as it did on the issue of whether Internet was title one or title two)? MM: This would require legislation, because nothing in the existing Communications Act gives the FCC any authority over DNS or IP addressing. So this is just another example of “what if the US legislates to regulate ICANN in some way?” Which of course is a risk if ICANN were in ANY jurisdiction. This is not true -- in the same way as, without any new legislation, FCC revised its stand on forbearance over seeing Internet as a telecom utility, and made it title 2. 'Forbearance' has this legal meaning of legal authority being there but not being exercised -- FCC's chair has clearly used the term 'forbear' in recent utterances about FCC's authority over Internet addresses. And in any case, what if as you say such a thing will require a legislation from the US legislature -- that is no comfort to non USians/ 6. There are almost as many US agencies that can exercise mandate over ICANN's domain name policies as there are sectors that the Internet and thus its naming system impacts. (ICANN allowed some 'regulatory policies' to buyers of .pharmacy, and going forward as it also does this with many other sectoral domain names, all of these can be challenged, in the courts, as well as with sectoral regulatory bodies). What then? MM: These dangers are greatly diminished post-transition. I see now way how the danger of any US executive authority exercising mandate over ICANN have diminished post transition other than your word for it..... And then I do not want them diminished (even that they havent), I want them extinguished. Statutory US bodies need to and will do whatever they can to further their policies and law, and would order any US body accordingly - nothing has changed, one may just be imagining that it has. If you even begin trying to deal with these questions, you will realise what a volcanic earth we are sitting upon, in refusing to see the public law jurisdiction issue. MM: Don’t agree we are sitting on a volcano, but do agree there are issues that need to be anticipated, a kind of “stress test” Yes, thanks, exactly that. We need to follow through each of these scenarios to possible logical conclusions - looking at all plausible ways they can go. parminder _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Some follow-up on the hypotheticals below, removing my rapporteur hat for the purpose, but still trying to use objective legal analysis, rather than seeking any particular result. Greg On Sun, Oct 16, 2016 at 1:54 AM, parminder <parminder@itforchange.net> wrote:
Milton,
Thanks for your engagement with these issues . Some responses below. On Tuesday 11 October 2016 10:21 PM, Mueller, Milton L wrote:
1. What happens if the concerned US court holds .xxx to be against US's competition law? Describe the steps that will follow, and how can ICANN avoid bending its policy making process and authority to the will of the US state.
MM: I don’t think that’s a problem for ICANN. It’s a problem for the entity that was delegated .XXX. Since XXX holds a tiny sliver of the domain name market, even in the porn space, this is a very remote risk.
Is there not problem even if .xxx was not a US company owned, which has no reason to like/ accept being governed by US laws? Milton, when we frame regimes for rule of law, and of justice, we do not say, well that is small fry, a small 'sliver of the market', rules and justice has to be the same for all - small or big. It is a question of principle -- can US law force ICANN polices, or their operationalisation ? If they can, as you seem to agree here, it is problem that we must find a solution to.
Annex 12 says "At this point in the CCWG-Accountability’s work, the main issues that need to be investigated within Work Stream 2 relate to the influence that I*CANN ́s existing jurisdiction may have on the actual operation of policies *and accountability mechanisms." (emphasis added)
This is directly an issue where ICANN's existing jurisdiction has influence on actual operation of its policies -- in this case its policies under which .xxx was delegated.
GS: If .xxx was not a US company, but it does business in the US, it subjects itself to US laws; that has nothing to do with ICANN. Some things are unclear from your hypothetical: 1. Is the US government the plaintiff alleging effects in US commerce, or is the plaintiff a private party that alleges that it has been harmed by .xxx's anticompetitive acts? 2. What actions by .xxx have allegedly violated competition laws? Have they engaged in price fixing or bid rigging or predatory pricing or price discrimination? 3. If this was unilateral activity, what is the product market in which .xxx has monopoly power or sufficient market power for this to be an antitrust violation? (As Milton points out, the answer is likely to be "none," as individual TLDs are extremely unlikely to be considered "markets" and .xxx would have only a small sliver of the total SLD market, and thus would not be capable of violating the antitrust laws. That is why Milton mentioned that .xxx was "small fry." Indeed antitrust laws are not applied equally to companies with small market shares and large market shares, nor should they be; companies with small market shares have no market power, and thus can do things like price below cost, that companies with high market shares and market power cannot do (e.g., a company with market power pricing below cost for a sustained period of time in order to drive smaller competitors from the market is engaged in "predatory pricing," a company with a small market share pricing below cost for a sustained period of time is committing business suicide or sacrificing profit for market share, but they are not violating the antitrust laws.) 4. If this was collusive activity, with whom were they colluding, and in what market, and are they co-defendants (and if not, why not)? 5. Are you assuming that the only way .xxx was brought into US court is because ICANN "issued" the gTLD, and that every other test for *in personam* jurisdiction failed? Since the "minimum contacts" for *in personam *jurisdiction are quite low (transacting business within the state; committing a violation of law in the state, committing a violation of law outside the state that causes injury within the state, or having or using real property within the state.), it is extremely unlikely that .xxx would fail them. If it did fail these test, it's essentially impossible for their to be a competition law violation, since the minimum contacts test is aligned with the type of activity that would be required to show that an antitrust violation occurred. So, if a plaintiff attempted to hail .xxx into court in the US, but there was no activity that could serve as the basis of jurisdiction or a claim, the case would be tossed, and it's reasonably likely the plaintiff and their lawyers would be sanctioned. On the other , if .xxx has violated US antitrust laws (which would require both business activity and harm in the US), why shouldn't they be subject to suit (by the government or a private party) in the US? .xxx is just a Registry business; it's not entitled to any particular immunities. In the end, I see no connection between this hypothetical and ICANN's policies or ICANN's jurisdiction of incorporation or HQ location.
2. Same about .africa.
Same response.
Same response from me as well - other than that here, unlike for .xxx, those who claim the gTLD, and thus will be affected by an adverse decision of the US court, are parties not belonging to the US and thus should not be dictated to by US courts.
GS: In the .africa case, DCA sued ICANN and ZACR in the US. They could have chosen to try and sue elsewhere, since there are other places where ICANN can be sued, but they chose the US. DCA is seeking adjudication by a court, and they chose the US courts, so this is not in any way a situation in which DCA does not want to be "dictated to by US courts." As for ZACR, they could have sought to be removed from the case due to lack of minimum contacts with the US, and they may well have succeeded -- but then they would be on the sidelines in a case where their ability to run .africa was at stake, and that wouldn't be a very good choice. It's an essential factor of being a defendant that you don't get to choose the court in which you're sued, at least not initially -- you can try to get out of the case, or have the case dismissed for jurisdictional reasons, or have the case removed to a different court with a greater interest in the case, after you are sued. Again, I see no connection between this hypothetical (or actual case) and ICANN's policies or ICANN's jurisdiction of incorporation or HQ location.
3. With 100s of new gTLDs getting operational, many of them private closed ones with generic names (but that is hardly the only issue, there could be many others), is it not obvious that we will be seeing many court cases around them... What would ICANN do the moment an adverse judgement comes?
See above. Not an issue for ICANN. Most of these court cases are between private parties, but even regulations or antitrust actions would be directed against the holder of the gTLD, not ICANN. Only if ICANN itself were accused of fostering a monopoly would it be the target of such litigation.
Again, you seem to be fully unaffected by how global parties - companies, and people - who expect ICANN to be a global governance body and thus do thing just-fully, and they able to partake equally of the rights and benefits of a global domain name governance systems are unable to fulfil this legitimate, and democratic, expectation. If this means nothing to you, and only such actions that directly affect ICANN's organisation etc are meaningful, I have not much more to say here... My principal case is of how ICANN's current jurisdiction affects the global DNS, its governance, its legitimacy, justfullness, etc -- and not just now it affects ICANN's organisation.
Perhaps lets separate these two issues then, treat them separately. (1), impact of ICANN jurisdiction on ICANN's organisation, (2) its impact on ICANN governance and operation of global DNS, including allocation of gTLDs/ ccTLDs, and managing the relationship with them.
For the me (2) is by far more important, but if (1) is your focus, we can consider them both, separately.
GS: First, it's not obvious that we will be seeing many court cases around new gTLD registries. Second, if there are court cases, I assume that the plaintiffs will bring them in a jurisdiction where the registry can be "found", like any other business. I doubt they will be sued in the US solely on the basis that the company that granted them the right to operate the gTLD is located here; and if suit is brought here, it's not at all likely that this basis for jurisdiction will succeed (look at how the .ir situation has resolved, and consider that .ir was involved as a TLD asset, not as a registry business). If there's an adverse judgment, ICANN typically wouldn't be involved -- unless the judgment called for a transfer of the gTLD, and that would only occur in very limited circumstances. If that were the case, it wouldn't matter where the case was brought -- the winning party would request that ICANN honor the court's ruling that the plaintiff and not the defendant was entitled to the gTLD. ICANN could agree, or it could contest the award. If the case was brought in France, ICANN could contest it in the French court. Alternatively, the plaintiff could seek to enforce the judgment by suing ICANN in the US (but this would happen in any jurisdiction where ICANN could be sued -- nothing unique to the US). Again, I see no issue. There was a private dispute between two parties, brought somewhere in the world. This has nothing to do with ICANN's current place of incorporation or HQ.
4. What if OFAC doesn’t give licence to ICANN for dealing with a particular country due to great deterioration of relationships with the US.
Now, you have hit on a real issue. I believe however that NTIA has taken some precautions here, but I don’t recall what they are.
NTIA's 'precautions' - even more so, the unrecollected ones :) - are meaningless for non US people/ businesses who really are looking to get out of NTIA's 'protection' - isnt that all this oversight transition is supposed to be about ?
GS: I assume you are referring to "great deterioration of relationships" between ICANN and the US, since "great deterioration of relationships" between a country and the US is the reason one needs an OFAC license in the first place. First, this is truly hypothetical -- OFAC licenses are granted based on their merits, not on relationships. Second, without examining the precautions Milton mentions, it's premature to dismiss them. Third, if the US government did in fact withhold an OFAC license from ICANN out of spite, it would severely damage the US's ability to serve as an appropriate home for ICANN, and could lead to legitimate calls for an examination of ICANN's location; this serves as a very significant deterrent against any such behavior. As to what the oversight transition was supposed to be about: The purpose of the IANA transition was not to make ICANN no longer subject to the rule of law under US law. It was about removing the unique relationship between the US and ICANN embodied in the IANA contract, and allowing the global multistakeholder community to oversee ICANN's activities, rather than the US government. Indeed, the "enforceability" aspects of the Empowered Community's actions *depend* on ICANN being subject to the jurisdiction of courts, and count on the availability of US courts to enforce any action by the Empowered Community where ICANN refused to comply. If ICANN no longer had any contacts with the US, then ICANN would still need to be subject to being sued in court somewhere for the accountability mechanisms to work fully. I understand that there are some who would like to remove ICANN from the United States. If, now or in the future, ICANN cannot carry out its policies or the accountability mechanisms do not work because of ICANN's location, and the only remedy is moving ICANN so that it can function, then there are methods to seek such a change inherent in iCANN's governance structure (i.e., methods for changing the Articles, where ICANN's jurisdiction of incorporation is set forth, and the Bylaws, where ICANN's HQ location is set forth). If this subgroup determines that there is an issue where ICANN is currently unable to carry out policies or the accountability mechanisms are impeded, we will look at all potential remedies (and all of the consequences of such potential remedies).
5. What if the FCC revises its decision of forbearance about its authority over Internet addressing system (as it did on the issue of whether Internet was title one or title two)?
MM: This would require legislation, because nothing in the existing Communications Act gives the FCC any authority over DNS or IP addressing. So this is just another example of “what if the US legislates to regulate ICANN in some way?” Which of course is a risk if ICANN were in ANY jurisdiction.
This is not true -- in the same way as, without any new legislation, FCC revised its stand on forbearance over seeing Internet as a telecom utility, and made it title 2. 'Forbearance' has this legal meaning of legal authority being there but not being exercised -- FCC's chair has clearly used the term 'forbear' in recent utterances about FCC's authority over Internet addresses. And in any case, what if as you say such a thing will require a legislation from the US legislature -- that is no comfort to non USians/
GS: I'm not going to wade into the complexities of FCC policy and scope. If the US or any country or group of countries (e.g., the EU) actually sought to usurp ICANN's role in DNS and IP addressing, that would be something to deal with and consider remedies at that time. As Milton notes, this is a risk regardless of ICANN's location (and a risk that is not necessarily tied to ICANN's physical location).
6. There are almost as many US agencies that can exercise mandate over ICANN's domain name policies as there are sectors that the Internet and thus its naming system impacts. (ICANN allowed some 'regulatory policies' to buyers of .pharmacy, and going forward as it also does this with many other sectoral domain names, all of these can be challenged, in the courts, as well as with sectoral regulatory bodies). What then?
MM: These dangers are greatly diminished post-transition.
I see now way how the danger of any US executive authority exercising mandate over ICANN have diminished post transition other than your word for it..... And then I do not want them diminished (even that they havent), I want them extinguished. Statutory US bodies need to and will do whatever they can to further their policies and law, and would order any US body accordingly - nothing has changed, one may just be imagining that it has.
GS: This is far too generalized to be considered as a scenario. What agencies do you think have a scope of authority over ICANN, and under what legislation? If it's DOJ/FTC under antitrust law, this is actually an accountability feature and not a bug. The intent is that the antitrust law be available in the event ICANN allegedly violates US antitrust laws. (The whole "antitrust immunity" discussion was completely misguided.) As for .pharmacy (or other TLDs) having certain safeguards, that is entirely a policy and business decision by that TLD. The new gTLD program was intended to foster different business models, so this should be considered a successful implementation. Technically, it could be "challenged" -- but under what cause of action? What law is being violated that could lead to either US government enforcement or a private party action? And what does ICANN's location have to do with the registry being capable of being sued in the US, since any business or harm in the US is sufficient to sue the registry in US courts, regardless of ICANN's location?
If you even begin trying to deal with these questions, you will realise what a volcanic earth we are sitting upon, in refusing to see the public law jurisdiction issue.
MM: Don’t agree we are sitting on a volcano, but do agree there are issues that need to be anticipated, a kind of “stress test”
Yes, thanks, exactly that. We need to follow through each of these scenarios to possible logical conclusions - looking at all plausible ways they can go.
GS: First, I don't see the hypotheticals regarding suing third parties in US courts as really "stress tests" of ICANN's location, since there will almost inevitably be other bases for being able to sue that party in a US court, given the similarity between the minimum contacts required for that purpose and minimum requirements to have a viable cause of action. As such, ICANN's location simply doesn't seem to be relevant to those scenarios. In those scenarios where the US government hypothetically seeks to interfere with ICANN policy or with ICANN's accountability mechanism, I think the overall "stress test" is whether ICANN could take steps *at that time* to oppose such actions or, failing that, seek to remove itself completely from US jurisdiction (and whether moving out of the US would have that intended effect)? I'm not aware of any reason that ICANN could not try to do so, but it would need the global multistakeholder community's agreement to do so. A related question is whether the Empowered Community, as the agent of the global multistakeholder community, could force ICANN to move out of the US against ICANN's will -- and whether there are safeguards against such an action so that it would only occur if there were a proper basis for such a drastic act? It's something we may need to look at, but based on the escalating powers of the Empowered Community (up to and including "spilling" the board, I think the community has the necessary power to move ICANN under such exigent circumstances. Greg
parminder
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Good answer, Greg. Glad you had the time and patience to wade through all that. One final point: 5. What if the FCC revises its decision of forbearance about its authority over Internet addressing system (as it did on the issue of whether Internet was title one or title two)? MM: This would require legislation, because nothing in the existing Communications Act gives the FCC any authority over DNS or IP addressing. So this is just another example of “what if the US legislates to regulate ICANN in some way?” Which of course is a risk if ICANN were in ANY jurisdiction. This is not true -- in the same way as, without any new legislation, FCC revised its stand on forbearance over seeing Internet as a telecom utility, and made it title 2. You really shouldn’t try to lecture US telecom policy people on our own laws and regulatory processes. Put simply, Title 1 and Title 2 were in the law, and it was within the FCC’s authority to classify broadband internet service providers as an unregulated info service or as a regulated common carrier. Here’s the problem for you: ICANN, DNS and IP addresses are NOT mentioned in the law in any way, thus new legislation would have to be passed for the FCC to do anything. And as I pointed out before, legislation to control or regulate ICANN could happen wherever it is located. Dr. Milton L Mueller Professor, School of Public Policy<http://spp.gatech.edu/> Georgia Institute of Technology Internet Governance Project http://internetgovernance.org/
Dear All, It is good that Grec and Milton speak the same language Kavouss 2016-10-17 21:07 GMT+02:00 Mueller, Milton L <milton@gatech.edu>:
Good answer, Greg. Glad you had the time and patience to wade through all that.
One final point:
5. What if the FCC revises its decision of forbearance about its authority over Internet addressing system (as it did on the issue of whether Internet was title one or title two)?
MM: This would require legislation, because nothing in the existing Communications Act gives the FCC any authority over DNS or IP addressing. So this is just another example of “what if the US legislates to regulate ICANN in some way?” Which of course is a risk if ICANN were in ANY jurisdiction.
This is not true -- in the same way as, without any new legislation, FCC revised its stand on forbearance over seeing Internet as a telecom utility, and made it title 2.
You really shouldn’t try to lecture US telecom policy people on our own laws and regulatory processes. Put simply, Title 1 and Title 2 were in the law, and it was within the FCC’s authority to classify broadband internet service providers as an unregulated info service or as a regulated common carrier. Here’s the problem for you: ICANN, DNS and IP addresses are NOT mentioned in the law in any way, thus new legislation would have to be passed for the FCC to do anything. And as I pointed out before, legislation to control or regulate ICANN could happen wherever it is located.
Dr. Milton L Mueller
Professor, School of Public Policy <http://spp.gatech.edu/>
Georgia Institute of Technology
Internet Governance Project
http://internetgovernance.org/
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Thanks Greg, for your detailed responses . My comments are below, and I dont think I would have much to say on these items after that. On Tuesday 18 October 2016 12:26 AM, Greg Shatan wrote:
Some follow-up on the hypotheticals below, removing my rapporteur hat for the purpose, but still trying to use objective legal analysis, rather than seeking any particular result.
Greg
On Sun, Oct 16, 2016 at 1:54 AM, parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>> wrote:
Milton,
Thanks for your engagement with these issues. Some responses below.
On Tuesday 11 October 2016 10:21 PM, Mueller, Milton L wrote:
1. What happens if the concerned US court holds .xxx to be against US's competition law? Describe the steps that will follow, and how can ICANN avoid bending its policy making process and authority to the will of the US state.
MM: I don’t think that’s a problem for ICANN. It’s a problem for the entity that was delegated .XXX. Since XXX holds a tiny sliver of the domain name market, even in the porn space, this is a very remote risk.
Is there not problem even if .xxx was not a US company owned, which has no reason to like/ accept being governed by US laws? Milton, when we frame regimes for rule of law, and of justice, we do not say, well that is small fry, a small 'sliver of the market', rules and justice has to be the same for all - small or big. It is a question of principle -- can US law force ICANN polices, or their operationalisation ? If they can, as you seem to agree here, it is problem that we must find a solution to.
Annex 12 says "At this point in the CCWG-Accountability’s work, the main issues that need to be investigated within Work Stream 2 relate to the influence that I/*CANN ́s existing jurisdiction may have on the actual operation of policies */and accountability mechanisms." (emphasis added)
This is directly an issue where ICANN's existing jurisdiction has influence on actual operation of its policies -- in this case its policies under which .xxx was delegated.
GS: If .xxx was not a US company, but it does business in the US, it subjects itself to US laws; that has nothing to do with ICANN.
What it has to do with ICANN is the question about a court deciding whether ICANN should or should not have delegated .xxx . A judgement that could adversely impact ICANN in making and implementing its policies (an express mandate of this group). This court case is not just about how .xxx works, it is as much about the action of delegation of .xxx by ICANN - . An action that can be nullified by the court, which will make a travesty of ICANN's role as a global governance body, which cannot be subject to one country's law. Remember that causes of action in the case are also against ICANN, and any action arising from the court case that makes ICANN reverse an act of operationalsing its DNS policies is direct interference in its work. It also directly related to the mandate of this group which is to look into jurisdictional issues that could have impact on actual operation of ICANN's policies'. To repeat, I am not at all bothered about how the court could possibly force .xxx to act in any particular way, I am only bothered by how it can force ICANN to act, and that only a US court can do bec ICANN is in the US.
Some things are unclear from your hypothetical: 1. Is the US government the plaintiff alleging effects in US commerce, or is the plaintiff a private party that alleges that it has been harmed by .xxx's anticompetitive acts?
it is private parties, but one that has brought a case not only against .xxx but also against ICANN. You need to focus on this latter fact. Forget about the .xx owner.
2. What actions by .xxx have allegedly violated competition laws? Have they engaged in price fixing or bid rigging or predatory pricing or price discrimination?
We need not go into looking into the merits of the case here. What is salient is that ICANN has been sued on three counts -- "a Section 1 claim for conspiracy in restraint of trade; a Section 2 claim for conspiracy to monopolize; and a Section 2 claim for conspiracy to attempt to monopolize". The court will decide if these allegations against ICANN hold, and accordingly can make it act in ways differentthan it has in this case. This is a direct interference in a global governance role of ICANN (again, lets forget about .xxx registry owner)
3. If this was unilateral activity, what is the product market in which .xxx has monopoly power or sufficient market power for this to be an antitrust violation? (As Milton points out, the answer is likely to be "none," as individual TLDs are extremely unlikely to be considered "markets" and .xxx would have only a small sliver of the total SLD market, and thus would not be capable of violating the antitrust laws. That is why Milton mentioned that .xxx was "small fry." Indeed antitrust laws are not applied equally to companies with small market shares and large market shares, nor should they be; companies with small market shares have no market power, and thus can do things like price below cost, that companies with high market shares and market power cannot do (e.g., a company with market power pricing below cost for a sustained period of time in order to drive smaller competitors from the market is engaged in "predatory pricing," a company with a small market share pricing below cost for a sustained period of time is committing business suicide or sacrificing profit for market share, but they are not violating the antitrust laws.)
Again, you are arguing about the merit of the case, which I have no desire to. The court has taken the case on file and dismissed ICANN's appeal to dismiss the case <http://domainincite.com/10149-court-rules-youporn-can-sue-icann-for-alleged-...>, and has asserted that US anti-trust laws apply on ICANN generally, and specifically in this matter. That is enough for me. If you and Milton think that the case is not made out, you should argue before the court. The court will test ICANN's delegation policies with regards US laws and let it know what it can do or not do... If this is not juridical interference on ICANN's policy role, I cannot understand what would be.
4. If this was collusive activity, with whom were they colluding, and in what market, and are they co-defendants (and if not, why not)?
Again, these are matters to be argued before the court. You can hardly expect me to begin arguing the plaintiff's case here. Just note that the court has ruled on prima facie admissibility of the collusion etc allegations, which simply means the decision could go either way. If in this particular case, with the burden of the facts being so and so, it actually goes ICANN's way, in another similar case it could go against. That 'fact' alone is important for the present discussion.
5. Are you assuming that the only way .xxx was brought into US court is because ICANN "issued" the gTLD, and that every other test for /in personam/ jurisdiction failed?
No, I have no problems where .xxx registry owners are taken; i have a problem solely with ICANN's act of global governance being brought to a US court, and a prima facie case made out. This itself makes the case for doing everything to immunise ICANN from US law, or any other single county law, in matters that are about its global governance function.
Since the "minimum contacts" for /in personam /jurisdiction are quite low (transacting business within the state; committing a violation of law in the state, committing a violation of law outside the state that causes injury within the state, or having or using real property within the state.), it is extremely unlikely that .xxx would fail them. If it did fail these test, it's essentially impossible for their to be a competition law violation, since the minimum contacts test is aligned with the type of activity that would be required to show that an antitrust violation occurred. So, if a plaintiff attempted to hail .xxx into court in the US, but there was no activity that could serve as the basis of jurisdiction or a claim, the case would be tossed, and it's reasonably likely the plaintiff and their lawyers would be sanctioned.
On the other , if .xxx has violated US antitrust laws (which would require both business activity and harm in the US), why shouldn't they be subject to suit (by the government or a private party) in the US? .xxx is just a Registry business; it's not entitled to any particular immunities.
Let them be subject to US or whatever law, my problem, and I repeat, is entirely and exclusively about ICANN being subject to US law... I think there is a clear difference, which is what we need to focus on.
In the end, I see no connection between this hypothetical and ICANN's policies or ICANN's jurisdiction of incorporation or HQ location.
Greg, You have suddenly jumped form a discussion that only discussed .xxx registry owner, and not ICANN, to an implication about ICANN... Working backwards, to get to such an implication, you should have been focussing on the fact that ICANN is hauled in the court, and prima facie case for possible cause of action against ICANN made out.
2. Same about .africa.
Same response.
Same response from me as well - other than that here, unlike for .xxx, those who claim the gTLD, and thus will be affected by an adverse decision of the US court, are parties not belonging to the US and thus should not be dictated to by US courts.
GS: In the .africa case, DCA sued ICANN and ZACR in the US. They could have chosen to try and sue elsewhere, since there are other places where ICANN can be sued, but they chose the US.
This is not at all true. ICANN cannot be profitably sued anywhere other than in US... Effective and meaningful court case should have levers of implementation of possible decision at hand, which are only available only in the US with regard to ICANN. (I distinctly remember ICANN being called to a court in another country and it going there and saying, sir, we are not subject to your jurisdiction, but I cannot recollect exactly where.)
DCA is seeking adjudication by a court, and they chose the US courts, so this is not in any way a situation in which DCA does not want to be "dictated to by US courts."
There is no other country's court it could have gone to for usefully challenging an action of an US non profit, that ICANN is.
As for ZACR, they could have sought to be removed from the case due to lack of minimum contacts with the US, and they may well have succeeded -- but then they would be on the sidelines in a case where their ability to run .africa was at stake,
Which was at stake only because a US court can actually force ICANN's hand, unlike that of any other country. They would not have cared to even get an lawyer if the same case had been brought up in Vietnam.
and that wouldn't be a very good choice. It's an essential factor of being a defendant that you don't get to choose the court in which you're sued, at least not initially
ICANN does, it has said in other countries' courts, sorry, but I am not taking it, I am not subject to your jurisdiction, and the courts could do nothing...
-- you can try to get out of the case, or have the case dismissed for jurisdictional reasons, or have the case removed to a different court with a greater interest in the case, after you are sued.
Again, I see no connection between this hypothetical (or actual case) and ICANN's policies or ICANN's jurisdiction of incorporation or HQ location.
3. With 100s of new gTLDs getting operational, many of them private closed ones with generic names (but that is hardly the only issue, there could be many others), is it not obvious that we will be seeing many court cases around them... What would ICANN do the moment an adverse judgement comes?
See above. Not an issue for ICANN. Most of these court cases are between private parties, but even regulations or antitrust actions would be directed against the holder of the gTLD, not ICANN. Only if ICANN itself were accused of fostering a monopoly would it be the target of such litigation.
Again, you seem to be fully unaffected by how global parties - companies, and people - who expect ICANN to be a global governance body and thus do thing just-fully, and they able to partake equally of the rights and benefits of a global domain name governance systems are unable to fulfil this legitimate, and democratic, expectation. If this means nothing to you, and only such actions that directly affect ICANN's organisation etc are meaningful, I have not much more to say here... My principal case is of how ICANN's current jurisdiction affects the global DNS, its governance, its legitimacy, justfullness, etc -- and not just now it affects ICANN's organisation.
Perhaps lets separate these two issues then, treat them separately. (1), impact of ICANN jurisdiction on ICANN's organisation, (2) its impact on ICANN governance and operation of global DNS, including allocation of gTLDs/ ccTLDs, and managing the relationship with them.
For the me (2) is by far more important, but if (1) is your focus, we can consider them both, separately.
GS: First, it's not obvious that we will be seeing many court cases around new gTLD registries. Second, if there are court cases, I assume that the plaintiffs will bring them in a jurisdiction where the registry can be "found", like any other business.
That would be legitimate and fine. We are talking about what would not be legitimate. And that is a US plaintiff taking the advantage of the company that actually delegated the gTLD being in the US - that is ICANN - to get a ruling employing US law -- which has been developed and works for US public interest (and mostly, rightly so).
I doubt they will be sued in the US solely on the basis that the company that granted them the right to operate the gTLD is located here; and if suit is brought here, it's not at all likely that this basis for jurisdiction will succeed
Like the court is doing in the .xxx case, a US court will still take on the examination of the actions of ICANN in issuing the gTLD, and be ready to give its decision on it which can force ICANN to act as per the decision.
(look at how the .ir situation has resolved, and consider that .ir was involved as a TLD asset, not as a registry business). If there's an adverse judgment, ICANN typically wouldn't be involved
As said above, there are three possible causes of action against ICANN in the .xxx case, and therefore ICANN is directly involved, and will be made to act as the court decides.
-- unless the judgment called for a transfer of the gTLD, and that would only occur in very limited circumstances.
Or annulment of the gTLD ... I am not sure why you say it could only be in limited circumstances. And even a few times are enough, for it to be unacceptable incursion of US jurisdiction on ICANN's global governance function. Further, law is made to be observed and not violated - its power and very existence is not counted just by instances of its violation. Its very existence, of US jursidiciton over it, will make ICANN - it already does - act in certain ways and not others, which is problematic enough for me.
If that were the case, it wouldn't matter where the case was brought -- the winning party would request that ICANN honor the court's ruling that the plaintiff and not the defendant was entitled to the gTLD. ICANN could agree, or it could contest the award.
ICANN will simply say to the court in India or Nigeria, please mind your own business, that is if it even bothers to respond. i see no possibility of ICANN accepting a ruling of any other country's court than of the US on matters of its policy implementation .
If the case was brought in France, ICANN could contest it in the French court. Alternatively, the plaintiff could seek to enforce the judgment by suing ICANN in the US (but this would happen in any jurisdiction where ICANN could be sued -- nothing unique to the US). Again, I see no issue. There was a private dispute between two parties, brought somewhere in the world. This has nothing to do with ICANN's current place of incorporation or HQ.
I am not talking of private disputes, but those which invoke public law, like anti-trust law, consumer protection, privacy related, and so on...
4. What if OFAC doesn’t give licence to ICANN for dealing with a particular country due to great deterioration of relationships with the US.
Now, you have hit on a real issue. I believe however that NTIA has taken some precautions here, but I don’t recall what they are.
NTIA's 'precautions' - even more so, the unrecollected ones :) - are meaningless for non US people/ businesses who really are looking to get out of NTIA's 'protection' - isnt that all this oversight transition is supposed to be about ?
GS: I assume you are referring to "great deterioration of relationships" between ICANN and the US, since "great deterioration of relationships" between a country and
the US is the reason one needs an OFAC license in the first place.
I think there is a confusion here. ICANN has to take an OFAC license to do business with a country that is on US's 'deteriorated relationships' list -- it has nothing to do with the nature of relationships between US and ICANN.
First, this is truly hypothetical -- OFAC licenses are granted based on their merits, not on relationships. Second, without examining the precautions Milton mentions, it's premature to dismiss them.
As far as i remember, Milton never mentioned any precautions. I could equally say to you, without even having heard what the precautions are, it may be premature to accept them to have fully made the case :)
Third, if the US government did in fact withhold an OFAC license from ICANN out of spite, it would severely damage the US's ability to serve as an appropriate home for ICANN, and could lead to legitimate calls for an examination of ICANN's location; this serves as a very significant deterrent against any such behavior.
As said, this is not about US relationships with ICANN. Secondly, we have heard enough of this logic - US will not abuse its positions because it will reduce its stature in the eyes of the global public and this would stretch its legitimacy to carry on in this exalted position. This logic is so weak that I do not want to even respond to it. (Could we not say a similar thing say about ICANN's board, or practically every position of authority in the world, whereby no measures against possible abuses will ever be required?)
As to what the oversight transition was supposed to be about: The purpose of the IANA transition was not to make ICANN no longer subject to the rule of law under US law. It was about removing the unique relationship between the US and ICANN embodied in the IANA contract, and allowing the global multistakeholder community to oversee ICANN's activities, rather than the US government.
I just said that for a process aimed at ridding ICANN of NTIA oversight, continue to be relying on some un-recollected NTIA precautions would be strange.
Indeed, the "enforceability" aspects of the Empowered Community's actions _depend_ on ICANN being subject to the jurisdiction of courts, and count on the availability of US courts to enforce any action by the Empowered Community where ICANN refused to comply. If ICANN no longer had any contacts with the US, then ICANN would still need to be subject to being sued in court somewhere for the accountability mechanisms to work fully.
It is possible to work out possibilities in international law - that is once we begin exploring it. There are other ways as well to achieve it, while ensuring that US public laws cannot interfere with ICANN's policy making or implementation processes. For it, we need to first focus on the latter being our key imperative.
I understand that there are some who would like to remove ICANN from the United States. If, now or in the future, ICANN cannot carry out its policies or the accountability mechanisms do not work because of ICANN's location, and the only remedy is moving ICANN so that it can function, then there are methods to seek such a change inherent in iCANN's governance structure (i.e., methods for changing the Articles, where ICANN's jurisdiction of incorporation is set forth, and the Bylaws, where ICANN's HQ location is set forth). If this subgroup determines that there is an issue where ICANN is currently unable to carry out policies or the accountability mechanisms are impeded, we will look at all potential remedies (and all of the consequences of such potential remedies).
All the cases I had put forward concern situations where very likely, in case of very possible adverse court judgement for instance, ICANN will be unable to carry out its policies, in the manner that they have been developed in a global manner, and which therefore should only be answerable to a suitably global mechanism. I think that these cases require us to look into possible remedies, with regard to the problems with US jurisdiction over ICANN.
5. What if the FCC revises its decision of forbearance about its authority over Internet addressing system (as it did on the issue of whether Internet was title one or title two)?
MM: This would require legislation, because nothing in the existing Communications Act gives the FCC any authority over DNS or IP addressing. So this is just another example of “what if the US legislates to regulate ICANN in some way?” Which of course is a risk if ICANN were in ANY jurisdiction.
This is not true -- in the same way as, without any new legislation, FCC revised its stand on forbearance over seeing Internet as a telecom utility, and made it title 2. 'Forbearance' has this legal meaning of legal authority being there but not being exercised -- FCC's chair has clearly used the term 'forbear' in recent utterances about FCC's authority over Internet addresses. And in any case, what if as you say such a thing will require a legislation from the US legislature -- that is no comfort to non USians/
GS: I'm not going to wade into the complexities of FCC policy and scope. If the US or any country or group of countries (e.g., the EU) actually sought to usurp ICANN's role in DNS and IP addressing, that would be something to deal with and consider remedies at that time. As Milton notes, this is a risk regardless of ICANN's location (and a risk that is not necessarily tied to ICANN's physical location).
This is because you seem to have only two possibilities in mind, ICANN under US jurisdiction, or ICANN under some other country jurisdiction. That is not the remedy. Remedy is of ICANN being put under international jurisdiction, or ICANN with full jurisdictional immunity expressly provided by US, for which proper legal framework as well as precedents exist in the US. In these cases, the mentioned risks would not exist.
6. There are almost as many US agencies that can exercise mandate over ICANN's domain name policies as there are sectors that the Internet and thus its naming system impacts. (ICANN allowed some 'regulatory policies' to buyers of .pharmacy, and going forward as it also does this with many other sectoral domain names, all of these can be challenged, in the courts, as well as with sectoral regulatory bodies). What then?
MM: These dangers are greatly diminished post-transition.
I see now way how the danger of any US executive authority exercising mandate over ICANN have diminished post transition other than your word for it..... And then I do not want them diminished (even that they havent), I want them extinguished. Statutory US bodies need to and will do whatever they can to further their policies and law, and would order any US body accordingly - nothing has changed, one may just be imagining that it has.
GS: This is far too generalized to be considered as a scenario. What agencies do you think have a scope of authority over ICANN, and under what legislation? If it's DOJ/FTC under antitrust law, this is actually an accountability feature and not a bug.
Yes, similar. You may consider subjection to US law as an accountability feature, but I do not, and I expect all non USians to think so... Would you Greg be fine if your legal firm was subject to Indian corporate law, legal profession regulatory mechanisms, and such regimes? I would like an honest answer. I often ask this from people from the US but they never respond. If you take sincere 10 mins to really reflect, and try to respond to this, we may well have solved the jurisdiction issue :)
The intent is that the antitrust law be available in the event ICANN allegedly violates US antitrust laws. (The whole "antitrust immunity" discussion was completely misguided.)
Why should ICANN be able to be punished for violating US anti trust laws, but not India's or Ghana's??? Or other social justice laws of these countries? The injustice and unfairness of this is so patent that I am not sure why are we even discussing it. We perhaps really need to raise our democratic quotient.
As for .pharmacy (or other TLDs) having certain safeguards, that is entirely a policy and business decision by that TLD.
No, it is a decision of ICANN and that tld together -- ICANN approves or disapproves of such 'safeguards' in the gtld policies . ICANN can accordingly be ordered around by that particular sectoral regulator in the US, FDA in this case. It can also interfere through its jurisdiction over the group that owns .pharmacy, which happens to be US based. But if that group had been non US, FDA could still simply had got its way by ordering ICANN's actions. It is this what is not acceptable.
The new gTLD program was intended to foster different business models, so this should be considered a successful implementation. Technically, it could be "challenged" -- but under what cause of action? What law is being violated that could lead to either US government enforcement or a private party action? And what does ICANN's location have to do with the registry being capable of being sued in the US, since any business or harm in the US is sufficient to sue the registry in US courts, regardless of ICANN's location?
It can be challenged under so many provisions of US law and regulations, and by so many of its agencies, that I can not even begin to count them. See .pharmacy and FDA example above for instance... If you want more, I could provide them ... It could be about .hotels, or a possible .cars, and so on.....
If you even begin trying to deal with these questions, you will realise what a volcanic earth we are sitting upon, in refusing to see the public law jurisdiction issue.
MM: Don’t agree we are sitting on a volcano, but do agree there are issues that need to be anticipated, a kind of “stress test”
Yes, thanks, exactly that. We need to follow through each of these scenarios to possible logical conclusions - looking at all plausible ways they can go.
GS: First, I don't see the hypotheticals regarding suing third parties in US courts as really "stress tests" of ICANN's location, since there will almost inevitably be other bases for being able to sue that party in a US court,
As I said many times, I am not bothered about any 'that party' being sued or not, or of someone using ICANN to sue it or not - I am talking of cases where ICANN itself is sued and is the butt of probable cause of action.
given the similarity between the minimum contacts required for that purpose and minimum requirements to have a viable cause of action. As such, ICANN's location simply doesn't seem to be relevant to those scenarios.
Since I am focussed only on ICANN being sued, and forced to act in certain ways contrary to policy developed by a global mechanism, the only thing important to me is that ICANN can fruitfully only be sued in the US, and in no other jurisdiction. That is a plain and simple fact.
In those scenarios where the US government hypothetically seeks to interfere with ICANN policy or with ICANN's accountability mechanism, I think the overall "stress test" is whether ICANN could take steps _at that time_ to oppose such actions or, failing that, seek to remove itself completely from US jurisdiction
Yes, here finally we have come to the only point that I am making.... Yes, that would be the stress test, and lets do it.... All the 5-6 scenarios that I posed, what you have called as 'hypotheticals' leads to possible situations where ICANN will have to, on orders of a court or other legitimate US authority, change its actions that otherwise arise from policies developed in a global fashion..... I dont see how ICANN can extricate itself in such situations - but if you or others have suggestions, Id be happy to hear them.
(and whether moving out of the US would have that intended effect)? I'm not aware of any reason that ICANN could not try to do so, but it would need the global multistakeholder community's agreement to do so. A related question is whether the Empowered Community, as the agent of the global multistakeholder community, could force ICANN to move out of the US against ICANN's will -- and whether there are safeguards against such an action so that it would only occur if there were a proper basis for such a drastic act? It's something we may need to look at, but based on the escalating powers of the Empowered Community (up to and including "spilling" the board, I think the community has the necessary power to move ICANN under such exigent circumstances.
But we should be able to agree that mature and responsible organisations normally are prepared for such possible (I say, very likely, but even if it were less than very likely) eventualities, and do not begun preparing once they come to pass. So let me suggest one some possible preparation, which can considerably address most of our jurisdictional problems without actually moving ICANN out of US. ICANN can institute a fundamental bylaw that its global governance processes cannot be interfered with by US jurisdiction. If any such interference is encountered, parametres of which can be clearly pre-defined, a process of shifting of ICANN to another jurisdiction will automatically set in. A redundant set-up – with HQ, root file maintenance system, etc – will be kept ready as a redundancy in another jurisdiction for this purpose. Chances are that with the knowledge of this bylaw and a fully plausible exit option being kept ready, no US state agency, including its courts. will consider it fruitful to try and enforce their writ. This system could therefore act in perpetuity as a guarantee against jurisdictional interference without actually having ICANN to move out of the US. How does it sound? Thanks again for this really useful engagement. parminder
Greg
parminder
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participants (8)
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Arasteh -
Greg Shatan -
Jeff Neuman -
Kavouss Arasteh
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Mueller, Milton L -
Nigel Roberts -
parminder -
Schweighofer Erich