One thing to keep in mind about these court cases. The litigation concerns such things as whether ICANN was in breach of contract, whether it committed fraud, and whether it needs to be ordered to follow the IRP decision. It does _not_ put an American court in the position of deciding which of two applicants for the .AFRICA domain are the more worthy. In other words, the U.S. court in this case is not the policy maker, it is a settler of legal disputes among contracting or would-be contracting parties. --MM From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Jorge.Cancio@bakom.admin.ch Sent: Thursday, October 27, 2016 4:00 PM To: gregshatanipc@gmail.com; ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document Hi, here’s the website about the „.africa“ issue I mentioned in the chat: http://www.africainonespace.org/litigation.php Cheers Jorge Von: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] Im Auftrag von Greg Shatan Gesendet: Donnerstag, 27. Oktober 2016 20:59 An: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Betreff: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

To which one needs to add that the principal reason the case is in California is that California is specified as the venue (and also as the substantive decisional law) in ICANN’s contracts. As a general matter ICANN is free to specify that the next such dispute be determined by an arbital panel in London (as an example) if it wishes, or using Swiss (another example) concepts of procedural due process. Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <http://redbranchconsulting.com/who-we-are/public-pgp-key/> http://redbranchconsulting.com/who-we-are/public-pgp-key/ From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Mueller, Milton L Sent: Thursday, October 27, 2016 9:04 PM To: Jorge.Cancio@bakom.admin.ch; ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document One thing to keep in mind about these court cases. The litigation concerns such things as whether ICANN was in breach of contract, whether it committed fraud, and whether it needs to be ordered to follow the IRP decision. It does _not_ put an American court in the position of deciding which of two applicants for the .AFRICA domain are the more worthy. In other words, the U.S. court in this case is not the policy maker, it is a settler of legal disputes among contracting or would-be contracting parties. --MM From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> Sent: Thursday, October 27, 2016 4:00 PM To: gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> ; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document Hi, here’s the website about the „.africa“ issue I mentioned in the chat: http://www.africainonespace.org/litigation.php Cheers Jorge Von: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] Im Auftrag von Greg Shatan Gesendet: Donnerstag, 27. Oktober 2016 20:59 An: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Betreff: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

I'm sorry, but that's just wrong Paraminder. The fact that ICANN is a US corproaration has nothing to do with its subject to public law in any way different than the fact that it has an office in Istabul subjects it to Turkish public law. To the extent ICANN operates as a coroporation it is subject to the public law of every jurisdiction where it operates. It can be sued for anti-competitive behavior in India today, if someone were so minded, provided that an allegation of violating Indian law could be raised. Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <http://redbranchconsulting.com/who-we-are/public-pgp-key/> http://redbranchconsulting.com/who-we-are/public-pgp-key/ From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Saturday, October 29, 2016 5:30 AM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document On Friday 28 October 2016 07:39 PM, Paul Rosenzweig wrote: To which one needs to add that the principal reason the case is in California is that California is specified as the venue (and also as the substantive decisional law) in ICANN's contracts. As a general matter ICANN is free to specify that the next such dispute be determined by an arbital panel in London (as an example) if it wishes, or using Swiss (another example) concepts of procedural due process. This may be true for issues of breach of contract, but not for issues of public law, like anti competitive practices, or fraud. In the latter set, there is no choice of law available. ICANN as US not profit is subject to US law and can be sued under it, or the state may take suo moto action. As from tis discussion, It has been clear during the working of this group that, in terms of the mandate of this group to give recs on the jurisdiction issue, there are two very different set of issues that come up for consideration which will require very different kind of recs. One set is of such issues where a choice of jurisdiction is available. With regard to these issues, this subgroup has to determine how this available choice should be exercised. The second set is of such issues where no choice of application of law is available, and the law of the place of incorporation and HQ applies. This is the trickly part, and we have to determine (1) what kind of problems may faced in the future, (2) how serious they are, their ramifications etc, (3) what, if anything at all, can be done with regard to this issue (4) what are the benefits and drawbacks of different possible options, (5) considering all these elements, is it worth recommending one or more options. It will be most useful is our work is organised in line with the kind of recommendations that we may make, which I see is as above. I do not see why our current documents keep these two different kinds of issues mixed, which admit of very different 'jurisdictional' treatment. Neither can I understand the logic of trying to eliminate right away some possible options that come much later in the discussion, instead of leading a structured discussion towards them. parminder Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com <http://www.redbranchconsulting.com/> My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ 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: Thursday, October 27, 2016 9:04 PM To: Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> ; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document One thing to keep in mind about these court cases. The litigation concerns such things as whether ICANN was in breach of contract, whether it committed fraud, and whether it needs to be ordered to follow the IRP decision. It does _not_ put an American court in the position of deciding which of two applicants for the .AFRICA domain are the more worthy. In other words, the U.S. court in this case is not the policy maker, it is a settler of legal disputes among contracting or would-be contracting parties. --MM From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> Sent: Thursday, October 27, 2016 4:00 PM To: gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> ; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document Hi, here's the website about the ".africa" issue I mentioned in the chat: http://www.africainonespace.org/litigation.php Cheers Jorge Von: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] Im Auftrag von Greg Shatan Gesendet: Donnerstag, 27. Oktober 2016 20:59 An: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Betreff: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

On Saturday 29 October 2016 07:37 PM, Paul Rosenzweig wrote:

I’m sorry, but that’s just wrong Paraminder. The fact that ICANN is a US corproaration has nothing to do with its subject to public law in any way different than the fact that it has an office in Istabul subjects it to Turkish public law. To the extent ICANN operates as a coroporation it is subject to the public law of every jurisdiction where it operates. It can be sued for anti-competitive behavior in India today, if someone were so minded, provided that an allegation of violating Indian law could be raised.

Paul, on the contrary I'd request you, lets talk on facts, and not fanciful notions. It is plain wrong to say that US public law applies on ICANN in the same way as Turkish or Indian law does. I dont know why are you even proposing such a completely unsustainable notion. I am not sure how to express my strong feelings against such a falsehood but let me try this: I am fine if this group makes a clear determination that "US public law applies to ICANN in exactly the same manner as of any other country" and writes it down as a finding in its report. I will like to see how a group of such well respected people and experts says such a thing. Of course, I am saying this bec I know that the group would never formally enter such a determination. But now since you have made this claim, and I do remember you have made it a few times earlier, and no one else has refuted it, Let me make a few points, but very briefly, bec I really do not consider this a serious proposition at all. I gave many examples of how US public law can interfere with ICANN's policy operation. Can you provide me with corresponding ways in which another country's law can interfere in the same or even similar way.... I do not want to bore the group by re listing all those examples, which I have done more than once in this discussion. A US court can change the decision of delegation of any gTLD, wherever the registry may be based. It can also impose the wisdom of US law over the domain allocation conditions of a gTLD. This it can do by direct fiat to ICANN. Other countries can interfere in operation of the DNS within their jurisdiction. They can direct registries and registrars located within their jurisdiction to act or not act in certain ways. US, on the other hand, can directly force the hand of ICANN in terms of its entire global operation, policy making as well as implementation work, including changes in the root file. I work in the management of an Indian non profit, which does multi country research projects. It would be most astonishing for me to hear that my non profit is equally subject to non Indian jurisdictions as it is to the Indian law. I am quite painfully aware that this is not a fact, not even close to it. For instance, when we do multi country project coordinated and run from India, I fully know how Indian law applies on the entirety of our actions and therefore of the overall project, whereas the courts of another country where a research team may do research for/ with us can interfere within that county for that part of the project. it is so simple and commonly understood, I wonder why am I even arguing it. Please lets not trash other people's important concerns in such offhand-ish manner... US's public law being applied unilaterally on the ICANN is a real problem with regard to the latter's global governance function. Let us explore what we can do about it.. parminder

Paul

Paul Rosenzweig

paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>

O: +1 (202) 547-0660

M: +1 (202) 329-9650

VOIP: +1 (202) 738-1739

www.redbranchconsulting.com <http://www.redbranchconsulting.com/>

My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ __

*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Saturday, October 29, 2016 5:30 AM *To:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

On Friday 28 October 2016 07:39 PM, Paul Rosenzweig wrote:

To which one needs to add that the principal reason the case is in California is that California is specified as the venue (and also as the substantive decisional law) in ICANN’s contracts. As a general matter ICANN is free to specify that the next such dispute be determined by an arbital panel in London (as an example) if it wishes, or using Swiss (another example) concepts of procedural due process.

This may be true for issues of breach of contract, but not for issues of public law, like anti competitive practices, or fraud. In the latter set, there is no choice of law available. ICANN as US not profit is subject to US law and can be sued under it, or the state may take suo moto action.

As from tis discussion, It has been clear during the working of this group that, in terms of the mandate of this group to give recs on the jurisdiction issue, there are two very different set of issues that come up for consideration which will require very different kind of recs.

One set is of such issues where a choice of jurisdiction is available. With regard to these issues, this subgroup has to determine how this available choice should be exercised.

The second set is of such issues where no choice of application of law is available, and the law of the place of incorporation and HQ applies. This is the trickly part, and we have to determine (1) what kind of problems may faced in the future, (2) how serious they are, their ramifications etc, (3) what, if anything at all, can be done with regard to this issue (4) what are the benefits and drawbacks of different possible options, (5) considering all these elements, is it worth recommending one or more options.

It will be most useful is our work is organised in line with the kind of recommendations that we may make, which I see is as above. I do not see why our current documents keep these two different kinds of issues mixed, which admit of very different 'jurisdictional' treatment. Neither can I understand the logic of trying to eliminate right away some possible options that come much later in the discussion, instead of leading a structured discussion towards them.

parminder

Paul

Paul Rosenzweig

paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>

O: +1 (202) 547-0660

M: +1 (202) 329-9650

VOIP: +1 (202) 738-1739

www.redbranchconsulting.com <http://www.redbranchconsulting.com/>

My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/

*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:* Thursday, October 27, 2016 9:04 PM *To:* Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch>; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

One thing to keep in mind about these court cases. The litigation concerns such things as whether ICANN was in breach of contract, whether it committed fraud, and whether it needs to be ordered to follow the IRP decision. It does _/not/_ put an American court in the position of deciding which of two applicants for the .AFRICA domain are the more worthy. In other words, the U.S. court in this case is not the policy maker, it is a settler of legal disputes among contracting or would-be contracting parties.

--MM

*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> *Sent:* Thursday, October 27, 2016 4:00 PM *To:* gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

Hi, here’s the website about the „.africa“ issue I mentioned in the chat: http://www.africainonespace.org/litigation.php

Cheers

Jorge

*Von:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *Im Auftrag von *Greg Shatan *Gesendet:* Donnerstag, 27. Oktober 2016 20:59 *An:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Betreff:* [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

_______________________________________________

Ws2-jurisdiction mailing list

Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org>

https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

On Sunday 30 October 2016 03:55 PM, Kavouss Arasteh wrote:

Dear Parminder I tend to agree with your logic and valid arguments.However, some of our colleagues who very well understand and agree to your reasoning, insist on their initial thoughts as they have be under the influence of their local law and have certain difficulties to think otherwise.

Yes, Kavouss, I fully understand and accept it, all of us take time coming out of our specific 'locations' into what can become a real global dialogue oriented to global public interest. But we have time, and I am sure we will reach there. And thanks for the below cut-pastes, very useful. parminder

On the other hand, I admire your follow up action as you are the only one continuing to discuss, examine, analyse and trying to get some workable things out of it..Other CCWG have taken a silent position which is pity . For ease of référence I have made a simple cut and paste the exchanged views on the matter. It would be good that people go through that to find out whether every thing said is consistent and coherent

*Mueller, Milton L via <https://support.google.com/mail/answer/1311182?hl=fr> icann.org <http://icann.org> *

*28 oct. (Il y a 2 jours)*

*À Jorge.Cancio, ws2-jurisdicti*

*One thing to keep in mind about these court cases. The litigation concerns such things as whether ICANN was in breach of contract, whether it committed fraud, and whether it needs to be ordered to follow the IRP decision. It does _/not/_ put an American court in the position of deciding which of two applicants for the .AFRICA domain are the more worthy. In other words, the U.S. court in this case is not the policy maker, it is a settler of legal disputes among contracting or would-be contracting parties. *

*--MM*

*Schweighofer Erich **via <https://support.google.com/mail/answer/1311182?hl=fr>** icann.org <http://icann.org> *

*28 oct. (Il y a 2 jours)*

*À Milton, Jorge.Cancio, ws2-jurisdicti. *

*Thanks for this important comment. BUT: formal procedures decide the outcome of legal disputes, even if sufficient respect for the applicable law and autonomy of ICANN is accepted by the Court. It reminds me of the Cadi case here at the ECJ. Formally, UN law was accepted but for /ordre public/ reasons not given full effect. Disputes must be settled in a proper forum and forum shopping must be avoided. *

*Erich Schweighofer*

*Paul Rosenzweig **via <https://support.google.com/mail/answer/1311182?hl=fr>** icann.org <http://icann.org> *

*28 oct. (Il y a 2 jours)*

*À Milton, Jorge.Cancio, ws2-jurisdicti. *

*To which one needs to add that the principal reason the case is in California is that California is specified as the venue (and also as the substantive decisional law) in ICANN’s contracts. As a general matter ICANN is free to specify that the next such dispute be determined by an arbital panel in London (as an example) if it wishes, or using Swiss (another example) concepts of procedural due process. *

* Paul*

*Paul Rosenzweig*

*On Friday 28 October 2016 06:33 AM, Mueller, Milton L wrote:*

*One thing to keep in mind about these court cases. The litigation concerns such things as whether ICANN was in breach of contract, whether it committed fraud, and whether it needs to be ordered to follow the IRP decision. *

*Milton, not sure what you mean by the plural "these court cases". Other cases in US courts like .xxx and .ir are/ were of a very different quality and clearly involved issues very different from 'breach of contract'. Further, even the .africa case involves public law issues of unfair competition and fraud (yes you mention it, but this does not fall in private law category as breach of contract does), which are determined not as per what the contract between the two private parties was but what is the law of the US state. which applies to everyone in the US, without any choice.

*

*It does _/not/_ put an American court in the position of deciding which of two applicants for the .AFRICA domain are the more worthy.*

* In fact if you see the initial judgements, not only the public law issues of fraud and unfair competition are considered, the court explicitly applies the 'public interest' test. I would think that means it is ready to see which side's contentions are 'more worthy'. Further, I, as a non US citizen would not be ready to go by a US court's judgement of what is in public interest, especially if one of the parties be a US entity and other not.

*

*In other words, the U.S. court in this case is not the policy maker,*

* It is US policies that concretise US public interest, which is not only put into law but, as shown above, US courts are ready to freely use the 'public interest' criterion (as all courts do).... Now, the whole point of democracy is to establish just and equitable institutions to establish 'the public interest' and put it into policies and law. It is not for other countries' courts - a part of that country's democratic set up -- to determine 'the public interest'.

The basic issue here for me is democracy, but I have the feeling that, this often taken for granted right of all people, is not an issue that concerns much of the discussion here. This thing is being treated more like we were in a purely commercial arena, just determining mutual rights of contracting parties alone. That is not true, nor appropriate.

parminder

*

* *

*On Friday 28 October 2016 07:39 PM, Paul Rosenzweig wrote:*

*To which one needs to add that the principal reason the case is in California is that California is specified as the venue (and also as the substantive decisional law) in ICANN’s contracts. As a general matter ICANN is free to specify that the next such dispute be determined by an arbital panel in London (as an example) if it wishes, or using Swiss (another example) concepts of procedural due process. *

* This may be true for issues of breach of contract, but not for issues of public law, like anti competitive practices, or fraud. In the latter set, there is no choice of law available. ICANN as US not profit is subject to US law and can be sued under it, or the state may take suo moto action.

As from tis discussion, It has been clear during the working of this group that, in terms of the mandate of this group to give recs on the jurisdiction issue, there are two very different set of issues that come up for consideration which will require very different kind of recs.

One set is of such issues where a choice of jurisdiction is available. With regard to these issues, this subgroup has to determine how this available choice should be exercised.

The second set is of such issues where no choice of application of law is available, and the law of the place of incorporation and HQ applies. This is the trickly part, and we have to determine (1) what kind of problems may faced in the future, (2) how serious they are, their ramifications etc, (3) what, if anything at all, can be done with regard to this issue (4) what are the benefits and drawbacks of different possible options, (5) considering all these elements, is it worth recommending one or more options.

It will be most useful is our work is organised in line with the kind of recommendations that we may make, which I see is as above. I do not see why our current documents keep these two different kinds of issues mixed, which admit of very different 'jurisdictional' treatment. Neither can I understand the logic of trying to eliminate right away some possible options that come much later in the discussion, instead of leading a structured discussion towards them.

**parminder*

*On Saturday 29 October 2016 07:37 PM, Paul Rosenzweig wrote:

*

*I’m sorry, but that’s just wrong Paraminder. The fact that ICANN is a US corproaration has nothing to do with its subject to public law in any way different than the fact that it has an office in Istabul subjects it to Turkish public law. To the extent ICANN operates as a coroporation it is subject to the public law of every jurisdiction where it operates. It can be sued for anti-competitive behavior in India today, if someone were so minded, provided that an allegation of violating Indian law could be raised.*

* Paul, on the contrary I'd request you, lets talk on facts, and not fanciful notions.

It is plain wrong to say that US public law applies on ICANN in the same way as Turkish or Indian law does. I dont know why are you even proposing such a completely unsustainable notion. I am not sure how to express my strong feelings against such a falsehood but let me try this: I am fine if this group makes a clear determination that "US public law applies to ICANN in exactly the same manner as of any other country" and writes it down as a finding in its report. I will like to see how a group of such well respected people and experts says such a thing. Of course, I am saying this bec I know that the group would never formally enter such a determination.

But now since you have made this claim, and I do remember you have made it a few times earlier, and no one else has refuted it, Let me make a few points, but very briefly, bec I really do not consider this a serious proposition at all.

I gave many examples of how US public law can interfere with ICANN's policy operation. Can you provide me with corresponding ways in which another country's law can interfere in the same or even similar way.... I do not want to bore the group by re listing all those examples, which I have done more than once in this discussion.

A US court can change the decision of delegation of any gTLD, wherever the registry may be based. It can also impose the wisdom of US law over the domain allocation conditions of a gTLD. This it can do by direct fiat to ICANN.

Other countries can interfere in operation of the DNS within their jurisdiction. They can direct registries and registrars located within their jurisdiction to act or not act in certain ways. US, on the other hand, can directly force the hand of ICANN in terms of its entire global operation, policy making as well as implementation work, including changes in the root file.

I work in the management of an Indian non profit, which does multi country research projects. It would be most astonishing for me to hear that my non profit is equally subject to non Indian jurisdictions as it is to the Indian law. I am quite painfully aware that this is not a fact, not even close to it. For instance, when we do multi country project coordinated and run from India, I fully know how Indian law applies on the entirety of our actions and therefore of the overall project, whereas the courts of another country where a research team may do research for/ with us can interfere within that county for that part of the project. it is so simple and commonly understood, I wonder why am I even arguing it.

Please lets not trash other people's important concerns in such of hand-ish manner... US's public law being applied unilaterally on the ICANN is a real problem with regard to the latter's global governance function. Let us explore what we can do*

2016-10-30 10:53 GMT+01:00 parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>>:

On Saturday 29 October 2016 07:37 PM, Paul Rosenzweig wrote:

...

I’m sorry, but that’s just wrong Paraminder. The fact that ICANN is a US corproaration has nothing to do with its subject to public law in any way different than the fact that it has an office in Istabul subjects it to Turkish public law. To the extent ICANN operates as a coroporation it is subject to the public law of every jurisdiction where it operates. It can be sued for anti-competitive behavior in India today, if someone were so minded, provided that an allegation of violating Indian law could be raised.

Paul, on the contrary I'd request you, lets talk on facts, and not fanciful notions.

It is plain wrong to say that US public law applies on ICANN in the same way as Turkish or Indian law does. I dont know why are you even proposing such a completely unsustainable notion. I am not sure how to express my strong feelings against such a falsehood but let me try this: I am fine if this group makes a clear determination that "US public law applies to ICANN in exactly the same manner as of any other country" and writes it down as a finding in its report. I will like to see how a group of such well respected people and experts says such a thing. Of course, I am saying this bec I know that the group would never formally enter such a determination.

But now since you have made this claim, and I do remember you have made it a few times earlier, and no one else has refuted it, Let me make a few points, but very briefly, bec I really do not consider this a serious proposition at all.

I gave many examples of how US public law can interfere with ICANN's policy operation. Can you provide me with corresponding ways in which another country's law can interfere in the same or even similar way.... I do not want to bore the group by re listing all those examples, which I have done more than once in this discussion.

A US court can change the decision of delegation of any gTLD, wherever the registry may be based. It can also impose the wisdom of US law over the domain allocation conditions of a gTLD. This it can do by direct fiat to ICANN.

Other countries can interfere in operation of the DNS within their jurisdiction. They can direct registries and registrars located within their jurisdiction to act or not act in certain ways. US, on the other hand, can directly force the hand of ICANN in terms of its entire global operation, policy making as well as implementation work, including changes in the root file.

I work in the management of an Indian non profit, which does multi country research projects. It would be most astonishing for me to hear that my non profit is equally subject to non Indian jurisdictions as it is to the Indian law. I am quite painfully aware that this is not a fact, not even close to it. For instance, when we do multi country project coordinated and run from India, I fully know how Indian law applies on the entirety of our actions and therefore of the overall project, whereas the courts of another country where a research team may do research for/ with us can interfere within that county for that part of the project. it is so simple and commonly understood, I wonder why am I even arguing it.

Please lets not trash other people's important concerns in such offhand-ish manner... US's public law being applied unilaterally on the ICANN is a real problem with regard to the latter's global governance function. Let us explore what we can do about it..

parminder

...

Paul

Paul Rosenzweig

paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>

O: +1 (202) 547-0660 <tel:%2B1%20%28202%29%20547-0660>

M: +1 (202) 329-9650 <tel:%2B1%20%28202%29%20329-9650>

VOIP: +1 (202) 738-1739 <tel:%2B1%20%28202%29%20738-1739>

www.redbranchconsulting.com <http://www.redbranchconsulting.com/>

My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ <http://redbranchconsulting.com/who-we-are/public-pgp-key/> __

*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:* Saturday, October 29, 2016 5:30 AM *To:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

On Friday 28 October 2016 07:39 PM, Paul Rosenzweig wrote:

To which one needs to add that the principal reason the case is in California is that California is specified as the venue (and also as the substantive decisional law) in ICANN’s contracts. As a general matter ICANN is free to specify that the next such dispute be determined by an arbital panel in London (as an example) if it wishes, or using Swiss (another example) concepts of procedural due process.

This may be true for issues of breach of contract, but not for issues of public law, like anti competitive practices, or fraud. In the latter set, there is no choice of law available. ICANN as US not profit is subject to US law and can be sued under it, or the state may take suo moto action.

As from tis discussion, It has been clear during the working of this group that, in terms of the mandate of this group to give recs on the jurisdiction issue, there are two very different set of issues that come up for consideration which will require very different kind of recs.

One set is of such issues where a choice of jurisdiction is available. With regard to these issues, this subgroup has to determine how this available choice should be exercised.

The second set is of such issues where no choice of application of law is available, and the law of the place of incorporation and HQ applies. This is the trickly part, and we have to determine (1) what kind of problems may faced in the future, (2) how serious they are, their ramifications etc, (3) what, if anything at all, can be done with regard to this issue (4) what are the benefits and drawbacks of different possible options, (5) considering all these elements, is it worth recommending one or more options.

It will be most useful is our work is organised in line with the kind of recommendations that we may make, which I see is as above. I do not see why our current documents keep these two different kinds of issues mixed, which admit of very different 'jurisdictional' treatment. Neither can I understand the logic of trying to eliminate right away some possible options that come much later in the discussion, instead of leading a structured discussion towards them.

parminder

Paul

Paul Rosenzweig

paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>

O: +1 (202) 547-0660 <tel:%2B1%20%28202%29%20547-0660>

M: +1 (202) 329-9650 <tel:%2B1%20%28202%29%20329-9650>

VOIP: +1 (202) 738-1739 <tel:%2B1%20%28202%29%20738-1739>

www.redbranchconsulting.com <http://www.redbranchconsulting.com/>

My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ <http://redbranchconsulting.com/who-we-are/public-pgp-key/>

*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:* Thursday, October 27, 2016 9:04 PM *To:* Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch>; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

One thing to keep in mind about these court cases. The litigation concerns such things as whether ICANN was in breach of contract, whether it committed fraud, and whether it needs to be ordered to follow the IRP decision. It does _/not/_ put an American court in the position of deciding which of two applicants for the .AFRICA domain are the more worthy. In other words, the U.S. court in this case is not the policy maker, it is a settler of legal disputes among contracting or would-be contracting parties.

--MM

*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> *Sent:* Thursday, October 27, 2016 4:00 PM *To:* gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

Hi, here’s the website about the „.africa“ issue I mentioned in the chat: http://www.africainonespace.org/litigation.php <http://www.africainonespace.org/litigation.php>

Cheers

Jorge

*Von:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] *Im Auftrag von *Greg Shatan *Gesendet:* Donnerstag, 27. Oktober 2016 20:59 *An:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Betreff:* [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

_______________________________________________

Ws2-jurisdiction mailing list

Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org>

https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <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 <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>

In the google doc on 'multiple layers of jurisdiction' I see the comment made by Greg that (1) any jurisdictional immunity for ICANN will require multilateral treaty, and (2) could block accountability enforcement mechanism. I think these are the key issues to discuss. Reg 1 above, it is not true. I just now added the following in the google doc. "It is possible to obtain jurisdictional immunity for ICANN without entering into multilateral treaties/ conventions. This can be done under United States International Organisations Immunities Act(see https://archive.icann.org/en/psc/annex9.pdf). There is precedent of such immunities being given to organisations that, like ICANN, are registered as an non profit. This study commissioned by ICANN <https://archive.icann.org/en/psc/corell-24aug06.html>cites the example of International Fertilizer and Development Center which was designated as a public, nonprofit, international organisation by US Presidential Decree, granting it immunities under the mentioned US Act." As for 2 above, one, I am sure that jurisdictional immunity can be structured in a manner that it does not effect th required judicial processes around accountability enforcement, and two, accountability enforcement processes are in any case private law issues and a jurisdiction can be specifically chosen for its enforcement (preferably US jurisdiction). I will like to hear arguments why we should not recommend that ICANN be granted jurisdictional immunity by using the above mentioned US Act. Is there at all any case against it? I will like this issue brought up at the f2f meeting in Hyderabad. parminder On Sunday 30 October 2016 03:23 PM, parminder wrote:

On Saturday 29 October 2016 07:37 PM, Paul Rosenzweig wrote:

...

I’m sorry, but that’s just wrong Paraminder. The fact that ICANN is a US corproaration has nothing to do with its subject to public law in any way different than the fact that it has an office in Istabul subjects it to Turkish public law. To the extent ICANN operates as a coroporation it is subject to the public law of every jurisdiction where it operates. It can be sued for anti-competitive behavior in India today, if someone were so minded, provided that an allegation of violating Indian law could be raised.

Paul, on the contrary I'd request you, lets talk on facts, and not fanciful notions.

It is plain wrong to say that US public law applies on ICANN in the same way as Turkish or Indian law does. I dont know why are you even proposing such a completely unsustainable notion. I am not sure how to express my strong feelings against such a falsehood but let me try this: I am fine if this group makes a clear determination that "US public law applies to ICANN in exactly the same manner as of any other country" and writes it down as a finding in its report. I will like to see how a group of such well respected people and experts says such a thing. Of course, I am saying this bec I know that the group would never formally enter such a determination.

But now since you have made this claim, and I do remember you have made it a few times earlier, and no one else has refuted it, Let me make a few points, but very briefly, bec I really do not consider this a serious proposition at all.

I gave many examples of how US public law can interfere with ICANN's policy operation. Can you provide me with corresponding ways in which another country's law can interfere in the same or even similar way.... I do not want to bore the group by re listing all those examples, which I have done more than once in this discussion.

A US court can change the decision of delegation of any gTLD, wherever the registry may be based. It can also impose the wisdom of US law over the domain allocation conditions of a gTLD. This it can do by direct fiat to ICANN.

Other countries can interfere in operation of the DNS within their jurisdiction. They can direct registries and registrars located within their jurisdiction to act or not act in certain ways. US, on the other hand, can directly force the hand of ICANN in terms of its entire global operation, policy making as well as implementation work, including changes in the root file.

I work in the management of an Indian non profit, which does multi country research projects. It would be most astonishing for me to hear that my non profit is equally subject to non Indian jurisdictions as it is to the Indian law. I am quite painfully aware that this is not a fact, not even close to it. For instance, when we do multi country project coordinated and run from India, I fully know how Indian law applies on the entirety of our actions and therefore of the overall project, whereas the courts of another country where a research team may do research for/ with us can interfere within that county for that part of the project. it is so simple and commonly understood, I wonder why am I even arguing it.

Please lets not trash other people's important concerns in such offhand-ish manner... US's public law being applied unilaterally on the ICANN is a real problem with regard to the latter's global governance function. Let us explore what we can do about it..

parminder

...

Paul

Paul Rosenzweig

paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>

O: +1 (202) 547-0660

M: +1 (202) 329-9650

VOIP: +1 (202) 738-1739

www.redbranchconsulting.com <http://www.redbranchconsulting.com/>

My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ __

*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Saturday, October 29, 2016 5:30 AM *To:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

On Friday 28 October 2016 07:39 PM, Paul Rosenzweig wrote:

To which one needs to add that the principal reason the case is in California is that California is specified as the venue (and also as the substantive decisional law) in ICANN’s contracts. As a general matter ICANN is free to specify that the next such dispute be determined by an arbital panel in London (as an example) if it wishes, or using Swiss (another example) concepts of procedural due process.

This may be true for issues of breach of contract, but not for issues of public law, like anti competitive practices, or fraud. In the latter set, there is no choice of law available. ICANN as US not profit is subject to US law and can be sued under it, or the state may take suo moto action.

As from tis discussion, It has been clear during the working of this group that, in terms of the mandate of this group to give recs on the jurisdiction issue, there are two very different set of issues that come up for consideration which will require very different kind of recs.

One set is of such issues where a choice of jurisdiction is available. With regard to these issues, this subgroup has to determine how this available choice should be exercised.

The second set is of such issues where no choice of application of law is available, and the law of the place of incorporation and HQ applies. This is the trickly part, and we have to determine (1) what kind of problems may faced in the future, (2) how serious they are, their ramifications etc, (3) what, if anything at all, can be done with regard to this issue (4) what are the benefits and drawbacks of different possible options, (5) considering all these elements, is it worth recommending one or more options.

It will be most useful is our work is organised in line with the kind of recommendations that we may make, which I see is as above. I do not see why our current documents keep these two different kinds of issues mixed, which admit of very different 'jurisdictional' treatment. Neither can I understand the logic of trying to eliminate right away some possible options that come much later in the discussion, instead of leading a structured discussion towards them.

parminder

Paul

Paul Rosenzweig

paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>

O: +1 (202) 547-0660

M: +1 (202) 329-9650

VOIP: +1 (202) 738-1739

www.redbranchconsulting.com <http://www.redbranchconsulting.com/>

My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/

*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:* Thursday, October 27, 2016 9:04 PM *To:* Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch>; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

One thing to keep in mind about these court cases. The litigation concerns such things as whether ICANN was in breach of contract, whether it committed fraud, and whether it needs to be ordered to follow the IRP decision. It does _/not/_ put an American court in the position of deciding which of two applicants for the .AFRICA domain are the more worthy. In other words, the U.S. court in this case is not the policy maker, it is a settler of legal disputes among contracting or would-be contracting parties.

--MM

*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> *Sent:* Thursday, October 27, 2016 4:00 PM *To:* gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

Hi, here’s the website about the „.africa“ issue I mentioned in the chat: http://www.africainonespace.org/litigation.php

Cheers

Jorge

*Von:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *Im Auftrag von *Greg Shatan *Gesendet:* Donnerstag, 27. Oktober 2016 20:59 *An:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Betreff:* [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

_______________________________________________

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

On Monday 31 October 2016 10:19 PM, Paul Rosenzweig wrote:

snip

I should add, by the way, that you misread the US International Organizational Immunites Act which by its terms applies only to public international organizations in which the US participates pursuant to a treaty. We don’t participate in ICANN pursuant to treaty. And the President cannot by decree convert a private organization (ICANN) into a public one.

Paul I earlier gave a link to a report by an European jurist, who was commissioned by ICANN, that shows examples of bodies not formed/ incorporated under international treaties being given immunity under the mentioned US Act. It specifically gives the example of International Fertilizer and Development Centre and wonders whether we should be exploring more about that case. I would simply cut paste from my earlier email of just a few days back. This text was also inserted by me in the google doc that this group is working on. "It is possible to obtain jurisdictional immunity for ICANN without entering into multilateral treaties/ conventions. This can be done under United States International Organisations Immunities Act(see https://archive.icann.org/en/psc/annex9.pdf). There is precedent of such immunities being given to organisations that, like ICANN, are registered as an non profit. This study commissioned by ICANN <https://archive.icann.org/en/psc/corell-24aug06.html>cites the example of International Fertilizer and Development Center which was designated as a public, nonprofit, international organisation by US Presidential Decree, granting it immunities under the mentioned US Act." (quote ends) The following is from the wikipedia entry on International Fertilizer and Development Centre "The result of Kissinger's urgency became the International Fertilizer Development Center, a non-profit organization incorporated under the state laws of Alabama, which began its service by answering the international calls once fielded to the NFDC.^[2] <https://en.wikipedia.org/wiki/International_Fertilizer_Development_Center#ci...> ^[3] <https://en.wikipedia.org/wiki/International_Fertilizer_Development_Center#ci...> In March 1977, U.S. President Jimmy Carter <https://en.wikipedia.org/wiki/Jimmy_Carter> designated IFDC a public international organization "entitled to enjoy the privileges, exemptions, and immunities conferred by the International Organizations Immunities Act."^[4] <https://en.wikipedia.org/wiki/International_Fertilizer_Development_Center#ci...> (ends) The question before us is: why should bot ICANN too obtain such immunity? Or keeping within what we can or cannot do - why should this group not recommend that ICANN be granted immunity under this Act. This brings us to the question whether ICANN's accountability mechanisms can be protected if such immunity is given to ICANN. I think they can be, bec, firstly, there could be a carve out in the immunity designation that allows accountability mechanism related court processes, and secondly, even if this is not possible, accountability mechanism is an issue of private law that can choose, say Californian jurisdiction, for adjudication and enforcement. We can discuss this further. parminder PS: In my view, the real solution is international incorporation of ICANN under a treaty. I am offering the above suggestion only as a second best solution that the group could perhaps agree to.

Paul

Paul Rosenzweig

paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>

O: +1 (202) 547-0660

M: +1 (202) 329-9650

VOIP: +1 (202) 738-1739

www.redbranchconsulting.com <http://www.redbranchconsulting.com/>

My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ __

*From:*parminder [mailto:parminder@itforchange.net] *Sent:* Sunday, October 30, 2016 5:54 AM *To:* Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

On Saturday 29 October 2016 07:37 PM, Paul Rosenzweig wrote:

I’m sorry, but that’s just wrong Paraminder. The fact that ICANN is a US corproaration has nothing to do with its subject to public law in any way different than the fact that it has an office in Istabul subjects it to Turkish public law. To the extent ICANN operates as a coroporation it is subject to the public law of every jurisdiction where it operates. It can be sued for anti-competitive behavior in India today, if someone were so minded, provided that an allegation of violating Indian law could be raised.

Paul, on the contrary I'd request you, lets talk on facts, and not fanciful notions.

It is plain wrong to say that US public law applies on ICANN in the same way as Turkish or Indian law does. I dont know why are you even proposing such a completely unsustainable notion. I am not sure how to express my strong feelings against such a falsehood but let me try this: I am fine if this group makes a clear determination that "US public law applies to ICANN in exactly the same manner as of any other country" and writes it down as a finding in its report. I will like to see how a group of such well respected people and experts says such a thing. Of course, I am saying this bec I know that the group would never formally enter such a determination.

But now since you have made this claim, and I do remember you have made it a few times earlier, and no one else has refuted it, Let me make a few points, but very briefly, bec I really do not consider this a serious proposition at all.

I gave many examples of how US public law can interfere with ICANN's policy operation. Can you provide me with corresponding ways in which another country's law can interfere in the same or even similar way.... I do not want to bore the group by re listing all those examples, which I have done more than once in this discussion.

A US court can change the decision of delegation of any gTLD, wherever the registry may be based. It can also impose the wisdom of US law over the domain allocation conditions of a gTLD. This it can do by direct fiat to ICANN.

Other countries can interfere in operation of the DNS within their jurisdiction. They can direct registries and registrars located within their jurisdiction to act or not act in certain ways. US, on the other hand, can directly force the hand of ICANN in terms of its entire global operation, policy making as well as implementation work, including changes in the root file.

I work in the management of an Indian non profit, which does multi country research projects. It would be most astonishing for me to hear that my non profit is equally subject to non Indian jurisdictions as it is to the Indian law. I am quite painfully aware that this is not a fact, not even close to it. For instance, when we do multi country project coordinated and run from India, I fully know how Indian law applies on the entirety of our actions and therefore of the overall project, whereas the courts of another country where a research team may do research for/ with us can interfere within that county for that part of the project. it is so simple and commonly understood, I wonder why am I even arguing it.

Please lets not trash other people's important concerns in such offhand-ish manner... US's public law being applied unilaterally on the ICANN is a real problem with regard to the latter's global governance function. Let us explore what we can do about it..

parminder

Paul

Paul Rosenzweig

paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>

O: +1 (202) 547-0660

M: +1 (202) 329-9650

VOIP: +1 (202) 738-1739

www.redbranchconsulting.com <http://www.redbranchconsulting.com/>

My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/

*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Saturday, October 29, 2016 5:30 AM *To:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

On Friday 28 October 2016 07:39 PM, Paul Rosenzweig wrote:

To which one needs to add that the principal reason the case is in California is that California is specified as the venue (and also as the substantive decisional law) in ICANN’s contracts. As a general matter ICANN is free to specify that the next such dispute be determined by an arbital panel in London (as an example) if it wishes, or using Swiss (another example) concepts of procedural due process.

This may be true for issues of breach of contract, but not for issues of public law, like anti competitive practices, or fraud. In the latter set, there is no choice of law available. ICANN as US not profit is subject to US law and can be sued under it, or the state may take suo moto action.

As from tis discussion, It has been clear during the working of this group that, in terms of the mandate of this group to give recs on the jurisdiction issue, there are two very different set of issues that come up for consideration which will require very different kind of recs.

One set is of such issues where a choice of jurisdiction is available. With regard to these issues, this subgroup has to determine how this available choice should be exercised.

The second set is of such issues where no choice of application of law is available, and the law of the place of incorporation and HQ applies. This is the trickly part, and we have to determine (1) what kind of problems may faced in the future, (2) how serious they are, their ramifications etc, (3) what, if anything at all, can be done with regard to this issue (4) what are the benefits and drawbacks of different possible options, (5) considering all these elements, is it worth recommending one or more options.

It will be most useful is our work is organised in line with the kind of recommendations that we may make, which I see is as above. I do not see why our current documents keep these two different kinds of issues mixed, which admit of very different 'jurisdictional' treatment. Neither can I understand the logic of trying to eliminate right away some possible options that come much later in the discussion, instead of leading a structured discussion towards them.

parminder

Paul

Paul Rosenzweig

paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>

O: +1 (202) 547-0660

M: +1 (202) 329-9650

VOIP: +1 (202) 738-1739

www.redbranchconsulting.com <http://www.redbranchconsulting.com/>

My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/

*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:* Thursday, October 27, 2016 9:04 PM *To:* Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch>; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

One thing to keep in mind about these court cases. The litigation concerns such things as whether ICANN was in breach of contract, whether it committed fraud, and whether it needs to be ordered to follow the IRP decision. It does _/not/_ put an American court in the position of deciding which of two applicants for the .AFRICA domain are the more worthy. In other words, the U.S. court in this case is not the policy maker, it is a settler of legal disputes among contracting or would-be contracting parties.

--MM

*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> *Sent:* Thursday, October 27, 2016 4:00 PM *To:* gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

Hi, here’s the website about the „.africa“ issue I mentioned in the chat: http://www.africainonespace.org/litigation.php

Cheers

Jorge

*Von:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *Im Auftrag von *Greg Shatan *Gesendet:* Donnerstag, 27. Oktober 2016 20:59 *An:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Betreff:* [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

_______________________________________________

Ws2-jurisdiction mailing list

Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org>

https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

Dear Grec There is difference between international intergovernmental organisation like UN and some or all of its Specialized Agencies and International organisations . Kavouss Sent from my iPhone

On 1 Nov 2016, at 17:18, Greg Shatan <gregshatanipc@gmail.com> wrote:

To put this in context, here's a non-exhaustive list of what the US considers to be Public International Organizations:

Organizational Categories

United Nations Organizations Specialized Agencies of the United Nations and Related Organizations International Financial Institutions Inter-American Organizations Other Regional Organizations Other International Organizations United Nations (UN Secretariat, Organs and their Subsidiary Bodies and Special Programs)

United Nations Secretariat (UN) UN Capital Development Fund (UNCDF) UN Center for Human Settlements (UNCHS) UN Children's Fund (UNICEF) UN Development Fund for Women (UNIFEM) UN Development Program (UNDP) UN Environmental Program (UNEP) UN High Commissioner for Refugees (UNHCR) UN International Training and Research Center (UNITAR) UN Office on Drugs and Crime (UNODC) UN Population Fund (UNFPA) UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) UN University (UNU) UN Volunteers (UNV) International Court of Justice (ICJ) International Civil Service Commission (ICSC) International Criminal Tribunal for the Former Yugoslavia (ICTY) International Criminal Tribunal for Rwanda (ICTR) International Research and Training Institute for the Advancement of Women (INSTRAW) Joint UN Program on HIV/AIDS (UNAIDS) World Food Program (WFP) Note:

Because the United Nations qualifies as an international organization in which the United States Government participates within the meaning of Public Law 89-554 as amended, organs and special programs of the United Nations usually qualify under the statute as well. The above list, therefore, is meant to be illustrative, not exhaustive. Questions as to whether other organs or special programs of the United Nations not on the above list qualify under the statute should be addressed to the Department of State at the following address: EmploymentUN@state.gov.

Specialized Agencies of the United Nations and Related Organizations

Food and Agriculture Organization (FAO) International Agency for Research on Cancer (IARC) International Atomic Energy Agency (IAEA) International Civil Aviation Organization (ICAO) International Fund for Agricultural Development (IFAD) International Labor Organization (ILO) International Maritime Organization (IMO) International Telecommunication Union (ITU) UN Educational, Scientific and Cultural Organization (UNESCO) Universal Postal Union (UPU) World Health Organization (WHO) World Intellectual Property Organization (WIPO) World Meteorological Organization (WMO) International Financial Institutions

Bank for International Settlements (BIS) International Monetary Fund (IMF) North American Development Bank (NADB) UN Regional Development Banks African Development Bank Asian Development Bank European Bank for Reconstruction and Development (EBRD) Inter-American Development Bank (IDB) World Bank Group International Bank for Reconstruction & Development (IBRD) International Center for Settlement of Investment Disputes (ICSID) International Finance Corporation (IFC) Multilateral Investment Guarantee Agency (MIGA) Inter-American Organizations

Border Environment Cooperation Commission (BECC) Inter-American Center of Tax Administrators (CIAT) Inter-American Indian Institute (IAII) Inter-American Institute for Cooperation in Agriculture (IICA) Inter-American Institute for Global Change Research (IAI) Inter-American Tropical Tuna Commission (IATTC) Organization of American States (OAS) Pan American Health Organization (PAHO) Pan American Institute of Geography and History (PAIGH) Pan American Railway Congress Association (ACPF) (Argentina) Postal Union of the Americas, Spain and Portugal (PUASP) Other Regional Organizations

Asia Pacific Energy Research Center (APERC) Colombo Plan Council Great Lakes Fisheries Commission (GLFC) International Energy Agency (IEA) North Atlantic Assembly (NAA) North Atlantic Treaty Organization (NATO) Nuclear Energy Agency (NEA) Organization for Economic Cooperation and Development (OECD) South Pacific Commission (SPC) Other International Organizations

Center for International Forestry Research (CIFOR) Commission for Environmental Cooperation (CEC) Commission for Labor Cooperation Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) Comprehensive Nuclear-Test-Ban Treaty Organization (CTBTO) Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) COPAS-SARSAT (Search and Rescue Satellite System) Global Biodiversity Information Facility (GBIF) The Global Fund (to Fight AIDS, Tuberculosis and Malaria) (TGF) The Hague Conference on Private International Law (HCOPIL) International Agreement on the Maintenance of Certain Lights in the Red Sea International Bureau for the Permanent Court of Arbitration (PCA) International Bureau for the Protection of Industrial Property International Bureau for the Publication of Customs Tariffs International Bureau of Weights and Measures (BIPM) International Center for Agricultural Research in the Dry Areas (ICARDA) International Center for the Study of the Preservation and Restoration of Cultural Property (ICCROM) International Coffee Organization (ICO) International Committee of the Red Cross (ICRC) International Cotton Advisory Committee (ICAC) International Council for the Exploration of the Sea (ICES) International Criminal Police Organization (INTERPOL) International Crops Research Institute for the Semi-Arid Tropics (ICRISAT) International Development Law Organization (IDLO) International Energy Forum Secretariat (IEFS) International Fertilizer Development Center (IFDC) International Grains Council (IGC) International Human Frontier Science Program Organization (HFSP) International Hydrographic Organization (IHO) International Institute for Cotton International Institute for the Unification of Private Law (UNIDROIT) International Mobile Satellite Organization (IMSO) International Organization for Legal Metrology (OIML) International Organization for Migration (IOM) International Organization of Supreme Audit Institutions (INTOSAI) International Plant Genetics Resources Institute (IPGRI) International Rubber Study Group (IRSG) International Science and Technology Center (ISTC) International Seed Testing Association (ISTA) International Service for National Agriculture Research (ISNAR) International Tropical Timber Organization (ITTO) International Union of Credit and Investment Insurers (Berne Union) International Whaling Commission (IWC) Inter-Parliamentary Union (IPU) Iran-United States Claims Tribunal Korean Peninsula Energy Development Organization (KEDO) Multinational Force and Observers (MFO) North American Commission for Environmental Cooperation (CEC) North Pacific Anadromous Fish Commission (NPAFC) Organization for the Prohibition of Chemical Weapons (OPCW) Organization for Security and Cooperation in Europe (OSCE) Pacific Aviation Safety Office (PASO) Permanent International Association of Navigation Congresses (PIANC) Regional Environmental Center for Central and Eastern Europe (REC) Science and Technology Center in Ukraine (STCU) Sierra Leone Special Court World Customs Organization (WCO) The World Heritage Fund World Organization for Animal Health (OIE) World Trade Organization (WTO) http://www.state.gov/p/io/empl/126305.htm

...

On Tue, Nov 1, 2016 at 6:49 AM, parminder <parminder@itforchange.net> wrote:

...

On Monday 31 October 2016 10:19 PM, Paul Rosenzweig wrote: snip

I should add, by the way, that you misread the US International Organizational Immunites Act which by its terms applies only to public international organizations in which the US participates pursuant to a treaty. We don’t participate in ICANN pursuant to treaty. And the President cannot by decree convert a private organization (ICANN) into a public one.

Paul I earlier gave a link to a report by an European jurist, who was commissioned by ICANN, that shows examples of bodies not formed/ incorporated under international treaties being given immunity under the mentioned US Act. It specifically gives the example of International Fertilizer and Development Centre and wonders whether we should be exploring more about that case. I would simply cut paste from my earlier email of just a few days back. This text was also inserted by me in the google doc that this group is working on.

"It is possible to obtain jurisdictional immunity for ICANN without entering into multilateral treaties/ conventions. This can be done under United States International Organisations Immunities Act (see https://archive.icann.org/en/psc/annex9.pdf ). There is precedent of such immunities being given to organisations that, like ICANN, are registered as an non profit. This study commissioned by ICANN cites the example of International Fertilizer and Development Center which was designated as a public, nonprofit, international organisation by US Presidential Decree, granting it immunities under the mentioned US Act."

(quote ends)

The following is from the wikipedia entry on International Fertilizer and Development Centre

"The result of Kissinger's urgency became the International Fertilizer Development Center, a non-profit organization incorporated under the state laws of Alabama, which began its service by answering the international calls once fielded to the NFDC.[2][3] In March 1977, U.S. President Jimmy Carter designated IFDC a public international organization "entitled to enjoy the privileges, exemptions, and immunities conferred by the International Organizations Immunities Act."[4]

(ends)

The question before us is: why should bot ICANN too obtain such immunity? Or keeping within what we can or cannot do - why should this group not recommend that ICANN be granted immunity under this Act.

This brings us to the question whether ICANN's accountability mechanisms can be protected if such immunity is given to ICANN. I think they can be, bec, firstly, there could be a carve out in the immunity designation that allows accountability mechanism related court processes, and secondly, even if this is not possible, accountability mechanism is an issue of private law that can choose, say Californian jurisdiction, for adjudication and enforcement. We can discuss this further.

parminder PS: In my view, the real solution is international incorporation of ICANN under a treaty. I am offering the above suggestion only as a second best solution that the group could perhaps agree to.

...

Paul

Paul Rosenzweig

paul.rosenzweig@redbranchconsulting.com

O: +1 (202) 547-0660

M: +1 (202) 329-9650

VOIP: +1 (202) 738-1739

www.redbranchconsulting.com

My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/

From: parminder [mailto:parminder@itforchange.net] Sent: Sunday, October 30, 2016 5:54 AM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

On Saturday 29 October 2016 07:37 PM, Paul Rosenzweig wrote:

I’m sorry, but that’s just wrong Paraminder. The fact that ICANN is a US corproaration has nothing to do with its subject to public law in any way different than the fact that it has an office in Istabul subjects it to Turkish public law. To the extent ICANN operates as a coroporation it is subject to the public law of every jurisdiction where it operates. It can be sued for anti-competitive behavior in India today, if someone were so minded, provided that an allegation of violating Indian law could be raised.

Paul, on the contrary I'd request you, lets talk on facts, and not fanciful notions.

It is plain wrong to say that US public law applies on ICANN in the same way as Turkish or Indian law does. I dont know why are you even proposing such a completely unsustainable notion. I am not sure how to express my strong feelings against such a falsehood but let me try this: I am fine if this group makes a clear determination that "US public law applies to ICANN in exactly the same manner as of any other country" and writes it down as a finding in its report. I will like to see how a group of such well respected people and experts says such a thing. Of course, I am saying this bec I know that the group would never formally enter such a determination.

But now since you have made this claim, and I do remember you have made it a few times earlier, and no one else has refuted it, Let me make a few points, but very briefly, bec I really do not consider this a serious proposition at all.

I gave many examples of how US public law can interfere with ICANN's policy operation. Can you provide me with corresponding ways in which another country's law can interfere in the same or even similar way.... I do not want to bore the group by re listing all those examples, which I have done more than once in this discussion.

A US court can change the decision of delegation of any gTLD, wherever the registry may be based. It can also impose the wisdom of US law over the domain allocation conditions of a gTLD. This it can do by direct fiat to ICANN.

Other countries can interfere in operation of the DNS within their jurisdiction. They can direct registries and registrars located within their jurisdiction to act or not act in certain ways. US, on the other hand, can directly force the hand of ICANN in terms of its entire global operation, policy making as well as implementation work, including changes in the root file.

I work in the management of an Indian non profit, which does multi country research projects. It would be most astonishing for me to hear that my non profit is equally subject to non Indian jurisdictions as it is to the Indian law. I am quite painfully aware that this is not a fact, not even close to it. For instance, when we do multi country project coordinated and run from India, I fully know how Indian law applies on the entirety of our actions and therefore of the overall project, whereas the courts of another country where a research team may do research for/ with us can interfere within that county for that part of the project. it is so simple and commonly understood, I wonder why am I even arguing it.

Please lets not trash other people's important concerns in such offhand-ish manner... US's public law being applied unilaterally on the ICANN is a real problem with regard to the latter's global governance function. Let us explore what we can do about it..

parminder

Paul

Paul Rosenzweig

paul.rosenzweig@redbranchconsulting.com

O: +1 (202) 547-0660

M: +1 (202) 329-9650

VOIP: +1 (202) 738-1739

www.redbranchconsulting.com

My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/

From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Saturday, October 29, 2016 5:30 AM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

On Friday 28 October 2016 07:39 PM, Paul Rosenzweig wrote:

To which one needs to add that the principal reason the case is in California is that California is specified as the venue (and also as the substantive decisional law) in ICANN’s contracts. As a general matter ICANN is free to specify that the next such dispute be determined by an arbital panel in London (as an example) if it wishes, or using Swiss (another example) concepts of procedural due process.

This may be true for issues of breach of contract, but not for issues of public law, like anti competitive practices, or fraud. In the latter set, there is no choice of law available. ICANN as US not profit is subject to US law and can be sued under it, or the state may take suo moto action.

As from tis discussion, It has been clear during the working of this group that, in terms of the mandate of this group to give recs on the jurisdiction issue, there are two very different set of issues that come up for consideration which will require very different kind of recs.

One set is of such issues where a choice of jurisdiction is available. With regard to these issues, this subgroup has to determine how this available choice should be exercised.

The second set is of such issues where no choice of application of law is available, and the law of the place of incorporation and HQ applies. This is the trickly part, and we have to determine (1) what kind of problems may faced in the future, (2) how serious they are, their ramifications etc, (3) what, if anything at all, can be done with regard to this issue (4) what are the benefits and drawbacks of different possible options, (5) considering all these elements, is it worth recommending one or more options.

It will be most useful is our work is organised in line with the kind of recommendations that we may make, which I see is as above. I do not see why our current documents keep these two different kinds of issues mixed, which admit of very different 'jurisdictional' treatment. Neither can I understand the logic of trying to eliminate right away some possible options that come much later in the discussion, instead of leading a structured discussion towards them.

parminder

Paul

Paul Rosenzweig

paul.rosenzweig@redbranchconsulting.com

O: +1 (202) 547-0660

M: +1 (202) 329-9650

VOIP: +1 (202) 738-1739

www.redbranchconsulting.com

My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/

From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Mueller, Milton L Sent: Thursday, October 27, 2016 9:04 PM To: Jorge.Cancio@bakom.admin.ch; ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

One thing to keep in mind about these court cases. The litigation concerns such things as whether ICANN was in breach of contract, whether it committed fraud, and whether it needs to be ordered to follow the IRP decision. It does _not_ put an American court in the position of deciding which of two applicants for the .AFRICA domain are the more worthy. In other words, the U.S. court in this case is not the policy maker, it is a settler of legal disputes among contracting or would-be contracting parties.

--MM

From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Jorge.Cancio@bakom.admin.ch Sent: Thursday, October 27, 2016 4:00 PM To: gregshatanipc@gmail.com; ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

Hi, here’s the website about the „.africa“ issue I mentioned in the chat: http://www.africainonespace.org/litigation.php

Cheers

Jorge

Von: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] Im Auftrag von Greg Shatan Gesendet: Donnerstag, 27. Oktober 2016 20:59 An: ws2-jurisdiction@icann.org Betreff: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

_______________________________________________ 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

_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

Dear All Still I am not sure why ICANN must be granted immunity? The question is that immunity is suggested vis a vis which entity and for what purpose? I am also doubtful that should such immunity is granted how accountability provisions would be ensured. Moreover, how ICANN could be entitled to be an international organization compared with other international organization Tks Kavouss Sent from my iPhone

On 1 Nov 2016, at 16:19, parminder <parminder@itforchange.net> wrote:

...

On Monday 31 October 2016 10:19 PM, Paul Rosenzweig wrote: snip

I should add, by the way, that you misread the US International Organizational Immunites Act which by its terms applies only to public international organizations in which the US participates pursuant to a treaty. We don’t participate in ICANN pursuant to treaty. And the President cannot by decree convert a private organization (ICANN) into a public one.

Paul I earlier gave a link to a report by an European jurist, who was commissioned by ICANN, that shows examples of bodies not formed/ incorporated under international treaties being given immunity under the mentioned US Act. It specifically gives the example of International Fertilizer and Development Centre and wonders whether we should be exploring more about that case. I would simply cut paste from my earlier email of just a few days back. This text was also inserted by me in the google doc that this group is working on.

"It is possible to obtain jurisdictional immunity for ICANN without entering into multilateral treaties/ conventions. This can be done under United States International Organisations Immunities Act (see https://archive.icann.org/en/psc/annex9.pdf ). There is precedent of such immunities being given to organisations that, like ICANN, are registered as an non profit. This study commissioned by ICANN cites the example of International Fertilizer and Development Center which was designated as a public, nonprofit, international organisation by US Presidential Decree, granting it immunities under the mentioned US Act."

(quote ends)

The following is from the wikipedia entry on International Fertilizer and Development Centre

"The result of Kissinger's urgency became the International Fertilizer Development Center, a non-profit organization incorporated under the state laws of Alabama, which began its service by answering the international calls once fielded to the NFDC.[2][3] In March 1977, U.S. President Jimmy Carter designated IFDC a public international organization "entitled to enjoy the privileges, exemptions, and immunities conferred by the International Organizations Immunities Act."[4]

(ends)

The question before us is: why should bot ICANN too obtain such immunity? Or keeping within what we can or cannot do - why should this group not recommend that ICANN be granted immunity under this Act.

This brings us to the question whether ICANN's accountability mechanisms can be protected if such immunity is given to ICANN. I think they can be, bec, firstly, there could be a carve out in the immunity designation that allows accountability mechanism related court processes, and secondly, even if this is not possible, accountability mechanism is an issue of private law that can choose, say Californian jurisdiction, for adjudication and enforcement. We can discuss this further.

parminder PS: In my view, the real solution is international incorporation of ICANN under a treaty. I am offering the above suggestion only as a second best solution that the group could perhaps agree to.

...

Paul

Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/

From: parminder [mailto:parminder@itforchange.net] Sent: Sunday, October 30, 2016 5:54 AM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

On Saturday 29 October 2016 07:37 PM, Paul Rosenzweig wrote:

I’m sorry, but that’s just wrong Paraminder. The fact that ICANN is a US corproaration has nothing to do with its subject to public law in any way different than the fact that it has an office in Istabul subjects it to Turkish public law. To the extent ICANN operates as a coroporation it is subject to the public law of every jurisdiction where it operates. It can be sued for anti-competitive behavior in India today, if someone were so minded, provided that an allegation of violating Indian law could be raised.

Paul, on the contrary I'd request you, lets talk on facts, and not fanciful notions.

It is plain wrong to say that US public law applies on ICANN in the same way as Turkish or Indian law does. I dont know why are you even proposing such a completely unsustainable notion. I am not sure how to express my strong feelings against such a falsehood but let me try this: I am fine if this group makes a clear determination that "US public law applies to ICANN in exactly the same manner as of any other country" and writes it down as a finding in its report. I will like to see how a group of such well respected people and experts says such a thing. Of course, I am saying this bec I know that the group would never formally enter such a determination.

But now since you have made this claim, and I do remember you have made it a few times earlier, and no one else has refuted it, Let me make a few points, but very briefly, bec I really do not consider this a serious proposition at all.

I gave many examples of how US public law can interfere with ICANN's policy operation. Can you provide me with corresponding ways in which another country's law can interfere in the same or even similar way.... I do not want to bore the group by re listing all those examples, which I have done more than once in this discussion.

A US court can change the decision of delegation of any gTLD, wherever the registry may be based. It can also impose the wisdom of US law over the domain allocation conditions of a gTLD. This it can do by direct fiat to ICANN.

Other countries can interfere in operation of the DNS within their jurisdiction. They can direct registries and registrars located within their jurisdiction to act or not act in certain ways. US, on the other hand, can directly force the hand of ICANN in terms of its entire global operation, policy making as well as implementation work, including changes in the root file.

I work in the management of an Indian non profit, which does multi country research projects. It would be most astonishing for me to hear that my non profit is equally subject to non Indian jurisdictions as it is to the Indian law. I am quite painfully aware that this is not a fact, not even close to it. For instance, when we do multi country project coordinated and run from India, I fully know how Indian law applies on the entirety of our actions and therefore of the overall project, whereas the courts of another country where a research team may do research for/ with us can interfere within that county for that part of the project. it is so simple and commonly understood, I wonder why am I even arguing it.

Please lets not trash other people's important concerns in such offhand-ish manner... US's public law being applied unilaterally on the ICANN is a real problem with regard to the latter's global governance function. Let us explore what we can do about it..

parminder

Paul

Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/

From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Saturday, October 29, 2016 5:30 AM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

On Friday 28 October 2016 07:39 PM, Paul Rosenzweig wrote: To which one needs to add that the principal reason the case is in California is that California is specified as the venue (and also as the substantive decisional law) in ICANN’s contracts. As a general matter ICANN is free to specify that the next such dispute be determined by an arbital panel in London (as an example) if it wishes, or using Swiss (another example) concepts of procedural due process.

This may be true for issues of breach of contract, but not for issues of public law, like anti competitive practices, or fraud. In the latter set, there is no choice of law available. ICANN as US not profit is subject to US law and can be sued under it, or the state may take suo moto action.

As from tis discussion, It has been clear during the working of this group that, in terms of the mandate of this group to give recs on the jurisdiction issue, there are two very different set of issues that come up for consideration which will require very different kind of recs.

One set is of such issues where a choice of jurisdiction is available. With regard to these issues, this subgroup has to determine how this available choice should be exercised.

The second set is of such issues where no choice of application of law is available, and the law of the place of incorporation and HQ applies. This is the trickly part, and we have to determine (1) what kind of problems may faced in the future, (2) how serious they are, their ramifications etc, (3) what, if anything at all, can be done with regard to this issue (4) what are the benefits and drawbacks of different possible options, (5) considering all these elements, is it worth recommending one or more options.

It will be most useful is our work is organised in line with the kind of recommendations that we may make, which I see is as above. I do not see why our current documents keep these two different kinds of issues mixed, which admit of very different 'jurisdictional' treatment. Neither can I understand the logic of trying to eliminate right away some possible options that come much later in the discussion, instead of leading a structured discussion towards them.

parminder

Paul

Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/

From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Mueller, Milton L Sent: Thursday, October 27, 2016 9:04 PM To: Jorge.Cancio@bakom.admin.ch; ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

One thing to keep in mind about these court cases. The litigation concerns such things as whether ICANN was in breach of contract, whether it committed fraud, and whether it needs to be ordered to follow the IRP decision. It does _not_ put an American court in the position of deciding which of two applicants for the .AFRICA domain are the more worthy. In other words, the U.S. court in this case is not the policy maker, it is a settler of legal disputes among contracting or would-be contracting parties.

--MM

From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Jorge.Cancio@bakom.admin.ch Sent: Thursday, October 27, 2016 4:00 PM To: gregshatanipc@gmail.com; ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

Hi, here’s the website about the „.africa“ issue I mentioned in the chat: http://www.africainonespace.org/litigation.php Cheers Jorge

Von: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] Im Auftrag von Greg Shatan Gesendet: Donnerstag, 27. Oktober 2016 20:59 An: ws2-jurisdiction@icann.org Betreff: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

_______________________________________________ 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

Dear all, Paul, Kavouss, Parminder, I may confirm a fact as an international lawyer: States have been willing and are still willing to grant privileges and immunities to private International Organisations if they consider it appropriate. The formal status does not change but – in practice- they are International Organisations. The best example are the International Committee of the Red Cross or the Organisation for Security and Co-operation in Europe. Thus, ICANN can get immunities if a State agrees to it. However, it creates another problem, a big one for accountability. California law gives the ICANN Community powers to enforce accountability. If ICANN is immunity granted in a headquarters agreement, then this option is gone. Rebuilding it in a new form of an international treaty is possible but very contrary to any practice so far by states with many headquarters of International Organisations (e.g. Switzerland, Austria but also U.S.A.) It is worth considering it … as an academic paper (I am working on it) but difficult to move on now. Too many legal problems arise and solving them is tricky and requires huge legal resources. It is worth considering it but not a real option for this stream. Best regards, Erich Schweighofer Von: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] Im Auftrag von Paul McGrady Gesendet: Mittwoch, 02. November 2016 14:57 An: 'Arasteh'; 'parminder' Cc: ws2-jurisdiction@icann.org Betreff: Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document ICANN should not be granted immunity and even if there was a working group set up to discuss it, it would not be the accountability working group. Immunity is the opposite of accountability. We should not waste time and resources discussing how to make ICANN unaccountable. We have way too much real work to do in a very short timeframe. Let’s see if we can rid ourselves of this bad idea while together in Hyderabad. Regards, Paul From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Arasteh Sent: Tuesday, November 1, 2016 7:49 AM To: parminder <parminder@itforchange.net<mailto:parminder@itforchange.net>> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document Dear All Still I am not sure why ICANN must be granted immunity? The question is that immunity is suggested vis a vis which entity and for what purpose? I am also doubtful that should such immunity is granted how accountability provisions would be ensured. Moreover, how ICANN could be entitled to be an international organization compared with other international organization Tks Kavouss Sent from my iPhone On 1 Nov 2016, at 16:19, parminder <parminder@itforchange.net<mailto:parminder@itforchange.net>> wrote: On Monday 31 October 2016 10:19 PM, Paul Rosenzweig wrote: snip I should add, by the way, that you misread the US International Organizational Immunites Act which by its terms applies only to public international organizations in which the US participates pursuant to a treaty. We don’t participate in ICANN pursuant to treaty. And the President cannot by decree convert a private organization (ICANN) into a public one. Paul I earlier gave a link to a report by an European jurist, who was commissioned by ICANN, that shows examples of bodies not formed/ incorporated under international treaties being given immunity under the mentioned US Act. It specifically gives the example of International Fertilizer and Development Centre and wonders whether we should be exploring more about that case. I would simply cut paste from my earlier email of just a few days back. This text was also inserted by me in the google doc that this group is working on. "It is possible to obtain jurisdictional immunity for ICANN without entering into multilateral treaties/ conventions. This can be done under United States International Organisations Immunities Act (see https://archive.icann.org/en/psc/annex9.pdf ). There is precedent of such immunities being given to organisations that, like ICANN, are registered as an non profit. This study commissioned by ICANN<https://archive.icann.org/en/psc/corell-24aug06.html> cites the example of International Fertilizer and Development Center which was designated as a public, nonprofit, international organisation by US Presidential Decree, granting it immunities under the mentioned US Act." (quote ends) The following is from the wikipedia entry on International Fertilizer and Development Centre "The result of Kissinger's urgency became the International Fertilizer Development Center, a non-profit organization incorporated under the state laws of Alabama, which began its service by answering the international calls once fielded to the NFDC.[2]<https://en.wikipedia.org/wiki/International_Fertilizer_Development_Center#cite_note-2>[3]<https://en.wikipedia.org/wiki/International_Fertilizer_Development_Center#cite_note-3> In March 1977, U.S. President Jimmy Carter<https://en.wikipedia.org/wiki/Jimmy_Carter> designated IFDC a public international organization "entitled to enjoy the privileges, exemptions, and immunities conferred by the International Organizations Immunities Act."[4]<https://en.wikipedia.org/wiki/International_Fertilizer_Development_Center#ci...> (ends) The question before us is: why should bot ICANN too obtain such immunity? Or keeping within what we can or cannot do - why should this group not recommend that ICANN be granted immunity under this Act. This brings us to the question whether ICANN's accountability mechanisms can be protected if such immunity is given to ICANN. I think they can be, bec, firstly, there could be a carve out in the immunity designation that allows accountability mechanism related court processes, and secondly, even if this is not possible, accountability mechanism is an issue of private law that can choose, say Californian jurisdiction, for adjudication and enforcement. We can discuss this further. parminder PS: In my view, the real solution is international incorporation of ICANN under a treaty. I am offering the above suggestion only as a second best solution that the group could perhaps agree to. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ From: parminder [mailto:parminder@itforchange.net] Sent: Sunday, October 30, 2016 5:54 AM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com><mailto:paul.rosenzweig@redbranchconsulting.com>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document On Saturday 29 October 2016 07:37 PM, Paul Rosenzweig wrote: I’m sorry, but that’s just wrong Paraminder. The fact that ICANN is a US corproaration has nothing to do with its subject to public law in any way different than the fact that it has an office in Istabul subjects it to Turkish public law. To the extent ICANN operates as a coroporation it is subject to the public law of every jurisdiction where it operates. It can be sued for anti-competitive behavior in India today, if someone were so minded, provided that an allegation of violating Indian law could be raised. Paul, on the contrary I'd request you, lets talk on facts, and not fanciful notions. It is plain wrong to say that US public law applies on ICANN in the same way as Turkish or Indian law does. I dont know why are you even proposing such a completely unsustainable notion. I am not sure how to express my strong feelings against such a falsehood but let me try this: I am fine if this group makes a clear determination that "US public law applies to ICANN in exactly the same manner as of any other country" and writes it down as a finding in its report. I will like to see how a group of such well respected people and experts says such a thing. Of course, I am saying this bec I know that the group would never formally enter such a determination. But now since you have made this claim, and I do remember you have made it a few times earlier, and no one else has refuted it, Let me make a few points, but very briefly, bec I really do not consider this a serious proposition at all. I gave many examples of how US public law can interfere with ICANN's policy operation. Can you provide me with corresponding ways in which another country's law can interfere in the same or even similar way.... I do not want to bore the group by re listing all those examples, which I have done more than once in this discussion. A US court can change the decision of delegation of any gTLD, wherever the registry may be based. It can also impose the wisdom of US law over the domain allocation conditions of a gTLD. This it can do by direct fiat to ICANN. Other countries can interfere in operation of the DNS within their jurisdiction. They can direct registries and registrars located within their jurisdiction to act or not act in certain ways. US, on the other hand, can directly force the hand of ICANN in terms of its entire global operation, policy making as well as implementation work, including changes in the root file. I work in the management of an Indian non profit, which does multi country research projects. It would be most astonishing for me to hear that my non profit is equally subject to non Indian jurisdictions as it is to the Indian law. I am quite painfully aware that this is not a fact, not even close to it. For instance, when we do multi country project coordinated and run from India, I fully know how Indian law applies on the entirety of our actions and therefore of the overall project, whereas the courts of another country where a research team may do research for/ with us can interfere within that county for that part of the project. it is so simple and commonly understood, I wonder why am I even arguing it. Please lets not trash other people's important concerns in such offhand-ish manner... US's public law being applied unilaterally on the ICANN is a real problem with regard to the latter's global governance function. Let us explore what we can do about it.. parminder Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Saturday, October 29, 2016 5:30 AM To: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document On Friday 28 October 2016 07:39 PM, Paul Rosenzweig wrote: To which one needs to add that the principal reason the case is in California is that California is specified as the venue (and also as the substantive decisional law) in ICANN’s contracts. As a general matter ICANN is free to specify that the next such dispute be determined by an arbital panel in London (as an example) if it wishes, or using Swiss (another example) concepts of procedural due process. This may be true for issues of breach of contract, but not for issues of public law, like anti competitive practices, or fraud. In the latter set, there is no choice of law available. ICANN as US not profit is subject to US law and can be sued under it, or the state may take suo moto action. As from tis discussion, It has been clear during the working of this group that, in terms of the mandate of this group to give recs on the jurisdiction issue, there are two very different set of issues that come up for consideration which will require very different kind of recs. One set is of such issues where a choice of jurisdiction is available. With regard to these issues, this subgroup has to determine how this available choice should be exercised. The second set is of such issues where no choice of application of law is available, and the law of the place of incorporation and HQ applies. This is the trickly part, and we have to determine (1) what kind of problems may faced in the future, (2) how serious they are, their ramifications etc, (3) what, if anything at all, can be done with regard to this issue (4) what are the benefits and drawbacks of different possible options, (5) considering all these elements, is it worth recommending one or more options. It will be most useful is our work is organised in line with the kind of recommendations that we may make, which I see is as above. I do not see why our current documents keep these two different kinds of issues mixed, which admit of very different 'jurisdictional' treatment. Neither can I understand the logic of trying to eliminate right away some possible options that come much later in the discussion, instead of leading a structured discussion towards them. parminder Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ 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: Thursday, October 27, 2016 9:04 PM To: Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document One thing to keep in mind about these court cases. The litigation concerns such things as whether ICANN was in breach of contract, whether it committed fraud, and whether it needs to be ordered to follow the IRP decision. It does _not_ put an American court in the position of deciding which of two applicants for the .AFRICA domain are the more worthy. In other words, the U.S. court in this case is not the policy maker, it is a settler of legal disputes among contracting or would-be contracting parties. --MM From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Sent: Thursday, October 27, 2016 4:00 PM To: gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document Hi, here’s the website about the „.africa“ issue I mentioned in the chat: http://www.africainonespace.org/litigation.php Cheers Jorge Von: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] Im Auftrag von Greg Shatan Gesendet: Donnerstag, 27. Oktober 2016 20:59 An: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Betreff: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document _______________________________________________ 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

Great. So according to Paul McG this is a bad idea (I agree) and according to Erich this is impractical (I agree again). And, I note happily, this is one of those instances that I agree with Kavouss as well! :) If others want to keep chatting about it, by all means – but I’m going to recede at this point. Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <http://redbranchconsulting.com/who-we-are/public-pgp-key/> http://redbranchconsulting.com/who-we-are/public-pgp-key/ From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Schweighofer Erich Sent: Wednesday, November 2, 2016 11:41 AM To: Paul McGrady <policy@paulmcgrady.com>; 'Arasteh' <kavouss.arasteh@gmail.com>; 'parminder' <parminder@itforchange.net> Cc: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document Dear all, Paul, Kavouss, Parminder, I may confirm a fact as an international lawyer: States have been willing and are still willing to grant privileges and immunities to private International Organisations if they consider it appropriate. The formal status does not change but – in practice- they are International Organisations. The best example are the International Committee of the Red Cross or the Organisation for Security and Co-operation in Europe. Thus, ICANN can get immunities if a State agrees to it. However, it creates another problem, a big one for accountability. California law gives the ICANN Community powers to enforce accountability. If ICANN is immunity granted in a headquarters agreement, then this option is gone. Rebuilding it in a new form of an international treaty is possible but very contrary to any practice so far by states with many headquarters of International Organisations (e.g. Switzerland, Austria but also U.S.A.) It is worth considering it … as an academic paper (I am working on it) but difficult to move on now. Too many legal problems arise and solving them is tricky and requires huge legal resources. It is worth considering it but not a real option for this stream. Best regards, Erich Schweighofer Von: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] Im Auftrag von Paul McGrady Gesendet: Mittwoch, 02. November 2016 14:57 An: 'Arasteh'; 'parminder' Cc: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document ICANN should not be granted immunity and even if there was a working group set up to discuss it, it would not be the accountability working group. Immunity is the opposite of accountability. We should not waste time and resources discussing how to make ICANN unaccountable. We have way too much real work to do in a very short timeframe. Let’s see if we can rid ourselves of this bad idea while together in Hyderabad. Regards, Paul From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Arasteh Sent: Tuesday, November 1, 2016 7:49 AM To: parminder <parminder@itforchange.net <mailto:parminder@itforchange.net> > Cc: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document Dear All Still I am not sure why ICANN must be granted immunity? The question is that immunity is suggested vis a vis which entity and for what purpose? I am also doubtful that should such immunity is granted how accountability provisions would be ensured. Moreover, how ICANN could be entitled to be an international organization compared with other international organization Tks Kavouss Sent from my iPhone On 1 Nov 2016, at 16:19, parminder <parminder@itforchange.net <mailto:parminder@itforchange.net> > wrote: On Monday 31 October 2016 10:19 PM, Paul Rosenzweig wrote: snip I should add, by the way, that you misread the US International Organizational Immunites Act which by its terms applies only to public international organizations in which the US participates pursuant to a treaty. We don’t participate in ICANN pursuant to treaty. And the President cannot by decree convert a private organization (ICANN) into a public one. Paul I earlier gave a link to a report by an European jurist, who was commissioned by ICANN, that shows examples of bodies not formed/ incorporated under international treaties being given immunity under the mentioned US Act. It specifically gives the example of International Fertilizer and Development Centre and wonders whether we should be exploring more about that case. I would simply cut paste from my earlier email of just a few days back. This text was also inserted by me in the google doc that this group is working on. "It is possible to obtain jurisdictional immunity for ICANN without entering into multilateral treaties/ conventions. This can be done under United States International Organisations Immunities Act (see <https://archive.icann.org/en/psc/annex9.pdf> https://archive.icann.org/en/psc/annex9.pdf ). There is precedent of such immunities being given to organisations that, like ICANN, are registered as an non profit. <https://archive.icann.org/en/psc/corell-24aug06.html> This study commissioned by ICANN cites the example of International Fertilizer and Development Center which was designated as a public, nonprofit, international organisation by US Presidential Decree, granting it immunities under the mentioned US Act." (quote ends) The following is from the wikipedia entry on International Fertilizer and Development Centre "The result of Kissinger's urgency became the International Fertilizer Development Center, a non-profit organization incorporated under the state laws of Alabama, which began its service by answering the international calls once fielded to the NFDC.[2] <https://en.wikipedia.org/wiki/International_Fertilizer_Development_Center#ci...> [3] <https://en.wikipedia.org/wiki/International_Fertilizer_Development_Center#ci...> In March 1977, U.S. President Jimmy Carter <https://en.wikipedia.org/wiki/Jimmy_Carter> designated IFDC a public international organization "entitled to enjoy the privileges, exemptions, and immunities conferred by the International Organizations Immunities Act."[4] <https://en.wikipedia.org/wiki/International_Fertilizer_Development_Center#ci...> (ends) The question before us is: why should bot ICANN too obtain such immunity? Or keeping within what we can or cannot do - why should this group not recommend that ICANN be granted immunity under this Act. This brings us to the question whether ICANN's accountability mechanisms can be protected if such immunity is given to ICANN. I think they can be, bec, firstly, there could be a carve out in the immunity designation that allows accountability mechanism related court processes, and secondly, even if this is not possible, accountability mechanism is an issue of private law that can choose, say Californian jurisdiction, for adjudication and enforcement. We can discuss this further. parminder PS: In my view, the real solution is international incorporation of ICANN under a treaty. I am offering the above suggestion only as a second best solution that the group could perhaps agree to. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com <http://www.redbranchconsulting.com/> My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ From: parminder [mailto:parminder@itforchange.net] Sent: Sunday, October 30, 2016 5:54 AM To: Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> <paul.rosenzweig@redbranchconsulting.com>; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document On Saturday 29 October 2016 07:37 PM, Paul Rosenzweig wrote: I’m sorry, but that’s just wrong Paraminder. The fact that ICANN is a US corproaration has nothing to do with its subject to public law in any way different than the fact that it has an office in Istabul subjects it to Turkish public law. To the extent ICANN operates as a coroporation it is subject to the public law of every jurisdiction where it operates. It can be sued for anti-competitive behavior in India today, if someone were so minded, provided that an allegation of violating Indian law could be raised. Paul, on the contrary I'd request you, lets talk on facts, and not fanciful notions. It is plain wrong to say that US public law applies on ICANN in the same way as Turkish or Indian law does. I dont know why are you even proposing such a completely unsustainable notion. I am not sure how to express my strong feelings against such a falsehood but let me try this: I am fine if this group makes a clear determination that "US public law applies to ICANN in exactly the same manner as of any other country" and writes it down as a finding in its report. I will like to see how a group of such well respected people and experts says such a thing. Of course, I am saying this bec I know that the group would never formally enter such a determination. But now since you have made this claim, and I do remember you have made it a few times earlier, and no one else has refuted it, Let me make a few points, but very briefly, bec I really do not consider this a serious proposition at all. I gave many examples of how US public law can interfere with ICANN's policy operation. Can you provide me with corresponding ways in which another country's law can interfere in the same or even similar way.... I do not want to bore the group by re listing all those examples, which I have done more than once in this discussion. A US court can change the decision of delegation of any gTLD, wherever the registry may be based. It can also impose the wisdom of US law over the domain allocation conditions of a gTLD. This it can do by direct fiat to ICANN. Other countries can interfere in operation of the DNS within their jurisdiction. They can direct registries and registrars located within their jurisdiction to act or not act in certain ways. US, on the other hand, can directly force the hand of ICANN in terms of its entire global operation, policy making as well as implementation work, including changes in the root file. I work in the management of an Indian non profit, which does multi country research projects. It would be most astonishing for me to hear that my non profit is equally subject to non Indian jurisdictions as it is to the Indian law. I am quite painfully aware that this is not a fact, not even close to it. For instance, when we do multi country project coordinated and run from India, I fully know how Indian law applies on the entirety of our actions and therefore of the overall project, whereas the courts of another country where a research team may do research for/ with us can interfere within that county for that part of the project. it is so simple and commonly understood, I wonder why am I even arguing it. Please lets not trash other people's important concerns in such offhand-ish manner... US's public law being applied unilaterally on the ICANN is a real problem with regard to the latter's global governance function. Let us explore what we can do about it.. parminder Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com <http://www.redbranchconsulting.com/> My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Saturday, October 29, 2016 5:30 AM To: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document On Friday 28 October 2016 07:39 PM, Paul Rosenzweig wrote: To which one needs to add that the principal reason the case is in California is that California is specified as the venue (and also as the substantive decisional law) in ICANN’s contracts. As a general matter ICANN is free to specify that the next such dispute be determined by an arbital panel in London (as an example) if it wishes, or using Swiss (another example) concepts of procedural due process. This may be true for issues of breach of contract, but not for issues of public law, like anti competitive practices, or fraud. In the latter set, there is no choice of law available. ICANN as US not profit is subject to US law and can be sued under it, or the state may take suo moto action. As from tis discussion, It has been clear during the working of this group that, in terms of the mandate of this group to give recs on the jurisdiction issue, there are two very different set of issues that come up for consideration which will require very different kind of recs. One set is of such issues where a choice of jurisdiction is available. With regard to these issues, this subgroup has to determine how this available choice should be exercised. The second set is of such issues where no choice of application of law is available, and the law of the place of incorporation and HQ applies. This is the trickly part, and we have to determine (1) what kind of problems may faced in the future, (2) how serious they are, their ramifications etc, (3) what, if anything at all, can be done with regard to this issue (4) what are the benefits and drawbacks of different possible options, (5) considering all these elements, is it worth recommending one or more options. It will be most useful is our work is organised in line with the kind of recommendations that we may make, which I see is as above. I do not see why our current documents keep these two different kinds of issues mixed, which admit of very different 'jurisdictional' treatment. Neither can I understand the logic of trying to eliminate right away some possible options that come much later in the discussion, instead of leading a structured discussion towards them. parminder Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com <http://www.redbranchconsulting.com/> My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ 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: Thursday, October 27, 2016 9:04 PM To: Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> ; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document One thing to keep in mind about these court cases. The litigation concerns such things as whether ICANN was in breach of contract, whether it committed fraud, and whether it needs to be ordered to follow the IRP decision. It does _not_ put an American court in the position of deciding which of two applicants for the .AFRICA domain are the more worthy. In other words, the U.S. court in this case is not the policy maker, it is a settler of legal disputes among contracting or would-be contracting parties. --MM From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> Sent: Thursday, October 27, 2016 4:00 PM To: gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> ; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document Hi, here’s the website about the „.africa“ issue I mentioned in the chat: http://www.africainonespace.org/litigation.php Cheers Jorge Von: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] Im Auftrag von Greg Shatan Gesendet: Donnerstag, 27. Oktober 2016 20:59 An: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Betreff: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document _______________________________________________ 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

Hi I think collecting issues is very important. As an example, I would like to draw your attention to this paragraph in the New gTLD applicant guidebook: *"Legal Compliance* -- ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the SDN List). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANN has been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. In any given case, however,* OFAC could decide not to issue a requested license."* p.1-25 - gTLD Applicant Guidebook, Version 2012-06-04 The paragraph goes so far as to say that ICANN is prohibited from providing most goods or services even to the residents of santioned countries. ICANN is gracious enough to request for OFAC license for those not in the SDN list but it also says: OFAC could decide not to issue a requested license! Who would apply for a new gtld from sanctioned countries when facing such grave uncertainty. That's only one example. Best Farzaneh On 13 November 2016 at 13:10, avri doria <avri@acm.org> wrote:

Hi,

As a part time staff member for APC, which signed the letter, I figure I should add my 2 cents.

I do not believe the object is to undo the work of WS1 and the establishment of the EC under California rules. That is not an APC goal and I do not think the letter proposes that. But I do believe we need to look at some of the other issues.

For example the one that persists to bother me and APC, is that fact that the US can make laws that prohibit ICANN/IANA from doing business with particular countries, whether it is because of boycott or other international reasons. I know we say that has never happened, though there may be some arguments about whether it did or not, but it could happen. Another issue is that given the removal of US oversight the US government commitment made in WSIS and elsewhere to never interfere in IANA relationship with ccTLDs is meaningless. Does this commitment still hold in the current jurisdictional mix if the US government passed laws or made administrative decisions? These are the sorts of thing I think we need to find a answer/solution to. So when I look at the notion of 'immunity' that is the sort I look for. Not that I believe this can be easily achieved. Personally, I do not want to see IANA (the core of the issue and the Internet) prohibited from making a change because of US law, now or ever.

I do not believe we can, or even should resolve this in WS2, but we should be aware of these problems and WS2 should recommend that further work after WS2, perhaps, be done to make sure that this and another types of errant US control are not possible. I am personally not looking for relief from the courts on contractual, accountability or EC issues as that is currently part of the accountability solution, and we have yet to see whether that works. It is going to take a few years before we have evidenc on the WS1 solution being effective. But I wonder, must that always be US courts, are there other solutions for some of these court challenges, especially those more applicable to the nationals of other nations. I think there are issues we can't ignore.

So collecting the issues and figuring out what further discussion/work needs to be done on them is something that needs to be remembered and dealt with in WS2. Hence my agreement with the fact that a letter was sent indicating that there were concerns that need to be discussed and dealt with. The solution proposed in the letter where just possible avenues to explore, and even if they are impractical, we should not ignore any open issues that people might have.

avri

--- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus

_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

-- Farzaneh

I for one do not believe criminal or terrorist organizations should be registry operators. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VLawDC "Luck is the residue of design" -- Branch Rickey Sent from my iPad On Nov 14, 2016, at 6:27 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Farzaneh, As you say, collecting issues is important. We then need to analyze them. In the case of a new gTLD, we would need to determine whether an OFAC license would be necessary for a new gTLD applicant from a sanctioned country. I'm not at all certain that is the case. If it is, I would not jump to the conclusion that this is a "grave uncertainty." I think the italicizes language may be an exercise of caution. ICANN could not possibly say that OFAC is required to issue a license, nor can it ever promise a result from any government or other third party. Hence the caveat. ICANN has sought and received OFAC licenses in the past, not because they are "gracious" but because that's the appropriate thing to do. I have absolutely no reason to believe that ICANN would hesitate to do so in the future. One might wonder if the change in relationship and political climate would lead OFAC to be more stingy with licenses, but in the case of ICANN, I think that would be counterproductive. I'm not minimizing the concern, just saying that we need to analyze each step. Greg On Mon, Nov 14, 2016 at 5:37 PM farzaneh badii <farzaneh.badii@gmail.com<mailto:farzaneh.badii@gmail.com>> wrote: Hi I think collecting issues is very important. As an example, I would like to draw your attention to this paragraph in the New gTLD applicant guidebook: "Legal Compliance -- ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the SDN List). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANN has been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. In any given case, however, OFAC could decide not to issue a requested license." p.1-25 - gTLD Applicant Guidebook, Version 2012-06-04 The paragraph goes so far as to say that ICANN is prohibited from providing most goods or services even to the residents of santioned countries. ICANN is gracious enough to request for OFAC license for those not in the SDN list but it also says: OFAC could decide not to issue a requested license! Who would apply for a new gtld from sanctioned countries when facing such grave uncertainty. That's only one example. Best Farzaneh On 13 November 2016 at 13:10, avri doria <avri@acm.org<mailto:avri@acm.org>> wrote: Hi, As a part time staff member for APC, which signed the letter, I figure I should add my 2 cents. I do not believe the object is to undo the work of WS1 and the establishment of the EC under California rules. That is not an APC goal and I do not think the letter proposes that. But I do believe we need to look at some of the other issues. For example the one that persists to bother me and APC, is that fact that the US can make laws that prohibit ICANN/IANA from doing business with particular countries, whether it is because of boycott or other international reasons. I know we say that has never happened, though there may be some arguments about whether it did or not, but it could happen. Another issue is that given the removal of US oversight the US government commitment made in WSIS and elsewhere to never interfere in IANA relationship with ccTLDs is meaningless. Does this commitment still hold in the current jurisdictional mix if the US government passed laws or made administrative decisions? These are the sorts of thing I think we need to find a answer/solution to. So when I look at the notion of 'immunity' that is the sort I look for. Not that I believe this can be easily achieved. Personally, I do not want to see IANA (the core of the issue and the Internet) prohibited from making a change because of US law, now or ever. I do not believe we can, or even should resolve this in WS2, but we should be aware of these problems and WS2 should recommend that further work after WS2, perhaps, be done to make sure that this and another types of errant US control are not possible. I am personally not looking for relief from the courts on contractual, accountability or EC issues as that is currently part of the accountability solution, and we have yet to see whether that works. It is going to take a few years before we have evidenc on the WS1 solution being effective. But I wonder, must that always be US courts, are there other solutions for some of these court challenges, especially those more applicable to the nationals of other nations. I think there are issues we can't ignore. So collecting the issues and figuring out what further discussion/work needs to be done on them is something that needs to be remembered and dealt with in WS2. Hence my agreement with the fact that a letter was sent indicating that there were concerns that need to be discussed and dealt with. The solution proposed in the letter where just possible avenues to explore, and even if they are impractical, we should not ignore any open issues that people might have. avri --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Farzaneh _______________________________________________ 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

Point taken, Greg. But I would like to see this discussion go from the general to the specific. Which specific individuals and countries are being unfairly prevented from being registry operators (which is the effect of OFAC compliance in the context of the Applicant Guidebook)? What actual harm are they actually incurring (as we are all well aware that any entity can readily communicate its views across the Internet)? What potential jurisdiction would permit them to be a registry operator if ICANN had corporate locus there, and what negative consequences might accompany such a relocation? ICANN is a corporation that will be subject to the jurisdiction of whatever nation it is incorporated within unless it radically changes its legal character and become some species of IGPO with attendant immunities. That result would be at complete odds with a very clear condition set for the transition, and would also leave ICANN far less accountable in relevant courts. Those who are continually seeking to re-litigate ICANN’s US jurisdiction, upon which its new accountability structure is based, should be required to cite specific harms and solutions, as so long as ICANN is domiciled in some nation there will always be national laws it must comply with that someone can find fault with. Best, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: Greg Shatan [mailto:gregshatanipc@gmail.com] Sent: Monday, November 14, 2016 7:25 PM To: Phil Corwin Cc: Avri Doria; farzaneh badii; ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document Phil, I think the issue is non-SDN residents of sanctioned countries, while you are referring to SDNs. Greg On Mon, Nov 14, 2016 at 7:13 PM Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> wrote: I for one do not believe criminal or terrorist organizations should be registry operators. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VLawDC "Luck is the residue of design" -- Branch Rickey Sent from my iPad On Nov 14, 2016, at 6:27 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Farzaneh, As you say, collecting issues is important. We then need to analyze them. In the case of a new gTLD, we would need to determine whether an OFAC license would be necessary for a new gTLD applicant from a sanctioned country. I'm not at all certain that is the case. If it is, I would not jump to the conclusion that this is a "grave uncertainty." I think the italicizes language may be an exercise of caution. ICANN could not possibly say that OFAC is required to issue a license, nor can it ever promise a result from any government or other third party. Hence the caveat. ICANN has sought and received OFAC licenses in the past, not because they are "gracious" but because that's the appropriate thing to do. I have absolutely no reason to believe that ICANN would hesitate to do so in the future. One might wonder if the change in relationship and political climate would lead OFAC to be more stingy with licenses, but in the case of ICANN, I think that would be counterproductive. I'm not minimizing the concern, just saying that we need to analyze each step. Greg On Mon, Nov 14, 2016 at 5:37 PM farzaneh badii <farzaneh.badii@gmail.com<mailto:farzaneh.badii@gmail.com>> wrote: Hi I think collecting issues is very important. As an example, I would like to draw your attention to this paragraph in the New gTLD applicant guidebook: "Legal Compliance -- ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the SDN List). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANN has been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. In any given case, however, OFAC could decide not to issue a requested license." p.1-25 - gTLD Applicant Guidebook, Version 2012-06-04 The paragraph goes so far as to say that ICANN is prohibited from providing most goods or services even to the residents of santioned countries. ICANN is gracious enough to request for OFAC license for those not in the SDN list but it also says: OFAC could decide not to issue a requested license! Who would apply for a new gtld from sanctioned countries when facing such grave uncertainty. That's only one example. Best Farzaneh On 13 November 2016 at 13:10, avri doria <avri@acm.org<mailto:avri@acm.org>> wrote: Hi, As a part time staff member for APC, which signed the letter, I figure I should add my 2 cents. I do not believe the object is to undo the work of WS1 and the establishment of the EC under California rules. That is not an APC goal and I do not think the letter proposes that. But I do believe we need to look at some of the other issues. For example the one that persists to bother me and APC, is that fact that the US can make laws that prohibit ICANN/IANA from doing business with particular countries, whether it is because of boycott or other international reasons. I know we say that has never happened, though there may be some arguments about whether it did or not, but it could happen. Another issue is that given the removal of US oversight the US government commitment made in WSIS and elsewhere to never interfere in IANA relationship with ccTLDs is meaningless. Does this commitment still hold in the current jurisdictional mix if the US government passed laws or made administrative decisions? These are the sorts of thing I think we need to find a answer/solution to. So when I look at the notion of 'immunity' that is the sort I look for. Not that I believe this can be easily achieved. Personally, I do not want to see IANA (the core of the issue and the Internet) prohibited from making a change because of US law, now or ever. I do not believe we can, or even should resolve this in WS2, but we should be aware of these problems and WS2 should recommend that further work after WS2, perhaps, be done to make sure that this and another types of errant US control are not possible. I am personally not looking for relief from the courts on contractual, accountability or EC issues as that is currently part of the accountability solution, and we have yet to see whether that works. It is going to take a few years before we have evidenc on the WS1 solution being effective. But I wonder, must that always be US courts, are there other solutions for some of these court challenges, especially those more applicable to the nationals of other nations. I think there are issues we can't ignore. So collecting the issues and figuring out what further discussion/work needs to be done on them is something that needs to be remembered and dealt with in WS2. Hence my agreement with the fact that a letter was sent indicating that there were concerns that need to be discussed and dealt with. The solution proposed in the letter where just possible avenues to explore, and even if they are impractical, we should not ignore any open issues that people might have. avri --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Farzaneh _______________________________________________ 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 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7859 / Virus Database: 4664/13314 - Release Date: 10/30/16 Internal Virus Database is out of date.

On Wednesday 02 November 2016 07:13 PM, Paul Rosenzweig wrote:

Sigh … The author of the study doesn’t even know that the United States does not have Presidential Decrees. Here is a link to the Executive Order (https://issuu.com/ifdcinfo/docs/exec_order_11977_-_presidential_decree_pio_s...)

Dear Paul, it will be extremely conducive if you (and some others here) would be less abrasive vis a vis other country citizen's knowledge about the ways of the US. We really have no desire to earn degrees in that knowledge, in fact I badly want to rid myself of that need. This said, you may note that even the document's url says "presidential decree". So please.....

which reveals that the organization is established as a public international organization by virtue of its affiliation with an international organization (the Consultative Group on International Agricultural Research) which was itself established by nation state agreement (i.e. not by US fiat).

The nation state agreement you speak about was something agreed between 2 European countries, with latter addition of 2-3 others.... The organisation is still a private one with non gov members equal to gov members, and making and preserving its own charter.... I would say, a very good model for ICANN. ICANN too can easily do that... Can you give me any reason for why it cannot, and then then earn jurisdictional immunity form the US, which would meet our objectives.... BTW, I still see it nowhere that US can give immunity only to organisations that have affiliation to some organisation that has been accepted as an international org by more than one gov (though we can easily meet that condition for ICANN)

That took me roughly 10 minutes of research to find.

I think you really should have spent some more time.

If you want to spend time arguing that the nation states should establish an international agreement that makes ICANN a public international organization, by all means, go ahead. IF they did, then the US might wind up recognizing it and granting ICANN immunity (assuming the other nations of the world did as well).

I think Us can give immunity without any nation state agreement. BTW even in the above case it was just an agreement between two states, with subsequent addition of 2-3 more... What is the problem in that... parminder

Paul Rosenzweig

paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>

O: +1 (202) 547-0660

M: +1 (202) 329-9650

VOIP: +1 (202) 738-1739

www.redbranchconsulting.com <http://www.redbranchconsulting.com/>

My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ __

*From:*parminder [mailto:parminder@itforchange.net] *Sent:* Tuesday, November 1, 2016 6:49 AM *To:* Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

On Monday 31 October 2016 10:19 PM, Paul Rosenzweig wrote:

snip

I should add, by the way, that you misread the US International Organizational Immunites Act which by its terms applies only to public international organizations in which the US participates pursuant to a treaty. We don’t participate in ICANN pursuant to treaty. And the President cannot by decree convert a private organization (ICANN) into a public one.

Paul I earlier gave a link to a report by an European jurist, who was commissioned by ICANN, that shows examples of bodies not formed/ incorporated under international treaties being given immunity under the mentioned US Act. It specifically gives the example of International Fertilizer and Development Centre and wonders whether we should be exploring more about that case. I would simply cut paste from my earlier email of just a few days back. This text was also inserted by me in the google doc that this group is working on.

"It is possible to obtain jurisdictional immunity for ICANN without entering into multilateral treaties/ conventions. This can be done under United States International Organisations Immunities Act(see https://archive.icann.org/en/psc/annex9.pdf). There is precedent of such immunities being given to organisations that, like ICANN, are registered as an non profit. This study commissioned by ICANN <https://archive.icann.org/en/psc/corell-24aug06.html>cites the example of International Fertilizer and Development Center which was designated as a public, nonprofit, international organisation by US Presidential Decree, granting it immunities under the mentioned US Act."

(quote ends)

The following is from the wikipedia entry on International Fertilizer and Development Centre

"The result of Kissinger's urgency became the International Fertilizer Development Center, a non-profit organization incorporated under the state laws of Alabama, which began its service by answering the international calls once fielded to the NFDC.^[2] <https://en.wikipedia.org/wiki/International_Fertilizer_Development_Center#cite_note-2>[3] <https://en.wikipedia.org/wiki/International_Fertilizer_Development_Center#ci...> In March 1977, U.S. President Jimmy Carter <https://en.wikipedia.org/wiki/Jimmy_Carter> designated IFDC a public international organization "entitled to enjoy the privileges, exemptions, and immunities conferred by the International Organizations Immunities Act."^[4] <https://en.wikipedia.org/wiki/International_Fertilizer_Development_Center#ci...>

(ends)

The question before us is: why should bot ICANN too obtain such immunity? Or keeping within what we can or cannot do - why should this group not recommend that ICANN be granted immunity under this Act.

This brings us to the question whether ICANN's accountability mechanisms can be protected if such immunity is given to ICANN. I think they can be, bec, firstly, there could be a carve out in the immunity designation that allows accountability mechanism related court processes, and secondly, even if this is not possible, accountability mechanism is an issue of private law that can choose, say Californian jurisdiction, for adjudication and enforcement. We can discuss this further.

parminder PS: In my view, the real solution is international incorporation of ICANN under a treaty. I am offering the above suggestion only as a second best solution that the group could perhaps agree to.

Paul

Paul Rosenzweig

paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>

O: +1 (202) 547-0660

M: +1 (202) 329-9650

VOIP: +1 (202) 738-1739

www.redbranchconsulting.com <http://www.redbranchconsulting.com/>

My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/

*From:*parminder [mailto:parminder@itforchange.net] *Sent:* Sunday, October 30, 2016 5:54 AM *To:* Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> <mailto:paul.rosenzweig@redbranchconsulting.com>; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

On Saturday 29 October 2016 07:37 PM, Paul Rosenzweig wrote:

I’m sorry, but that’s just wrong Paraminder. The fact that ICANN is a US corproaration has nothing to do with its subject to public law in any way different than the fact that it has an office in Istabul subjects it to Turkish public law. To the extent ICANN operates as a coroporation it is subject to the public law of every jurisdiction where it operates. It can be sued for anti-competitive behavior in India today, if someone were so minded, provided that an allegation of violating Indian law could be raised.

Paul, on the contrary I'd request you, lets talk on facts, and not fanciful notions.

It is plain wrong to say that US public law applies on ICANN in the same way as Turkish or Indian law does. I dont know why are you even proposing such a completely unsustainable notion. I am not sure how to express my strong feelings against such a falsehood but let me try this: I am fine if this group makes a clear determination that "US public law applies to ICANN in exactly the same manner as of any other country" and writes it down as a finding in its report. I will like to see how a group of such well respected people and experts says such a thing. Of course, I am saying this bec I know that the group would never formally enter such a determination.

But now since you have made this claim, and I do remember you have made it a few times earlier, and no one else has refuted it, Let me make a few points, but very briefly, bec I really do not consider this a serious proposition at all.

I gave many examples of how US public law can interfere with ICANN's policy operation. Can you provide me with corresponding ways in which another country's law can interfere in the same or even similar way.... I do not want to bore the group by re listing all those examples, which I have done more than once in this discussion.

A US court can change the decision of delegation of any gTLD, wherever the registry may be based. It can also impose the wisdom of US law over the domain allocation conditions of a gTLD. This it can do by direct fiat to ICANN.

Other countries can interfere in operation of the DNS within their jurisdiction. They can direct registries and registrars located within their jurisdiction to act or not act in certain ways. US, on the other hand, can directly force the hand of ICANN in terms of its entire global operation, policy making as well as implementation work, including changes in the root file.

I work in the management of an Indian non profit, which does multi country research projects. It would be most astonishing for me to hear that my non profit is equally subject to non Indian jurisdictions as it is to the Indian law. I am quite painfully aware that this is not a fact, not even close to it. For instance, when we do multi country project coordinated and run from India, I fully know how Indian law applies on the entirety of our actions and therefore of the overall project, whereas the courts of another country where a research team may do research for/ with us can interfere within that county for that part of the project. it is so simple and commonly understood, I wonder why am I even arguing it.

Please lets not trash other people's important concerns in such offhand-ish manner... US's public law being applied unilaterally on the ICANN is a real problem with regard to the latter's global governance function. Let us explore what we can do about it..

parminder

Paul

Paul Rosenzweig

paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>

O: +1 (202) 547-0660

M: +1 (202) 329-9650

VOIP: +1 (202) 738-1739

www.redbranchconsulting.com <http://www.redbranchconsulting.com/>

My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/

*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Saturday, October 29, 2016 5:30 AM *To:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

On Friday 28 October 2016 07:39 PM, Paul Rosenzweig wrote:

To which one needs to add that the principal reason the case is in California is that California is specified as the venue (and also as the substantive decisional law) in ICANN’s contracts. As a general matter ICANN is free to specify that the next such dispute be determined by an arbital panel in London (as an example) if it wishes, or using Swiss (another example) concepts of procedural due process.

This may be true for issues of breach of contract, but not for issues of public law, like anti competitive practices, or fraud. In the latter set, there is no choice of law available. ICANN as US not profit is subject to US law and can be sued under it, or the state may take suo moto action.

As from tis discussion, It has been clear during the working of this group that, in terms of the mandate of this group to give recs on the jurisdiction issue, there are two very different set of issues that come up for consideration which will require very different kind of recs.

One set is of such issues where a choice of jurisdiction is available. With regard to these issues, this subgroup has to determine how this available choice should be exercised.

The second set is of such issues where no choice of application of law is available, and the law of the place of incorporation and HQ applies. This is the trickly part, and we have to determine (1) what kind of problems may faced in the future, (2) how serious they are, their ramifications etc, (3) what, if anything at all, can be done with regard to this issue (4) what are the benefits and drawbacks of different possible options, (5) considering all these elements, is it worth recommending one or more options.

It will be most useful is our work is organised in line with the kind of recommendations that we may make, which I see is as above. I do not see why our current documents keep these two different kinds of issues mixed, which admit of very different 'jurisdictional' treatment. Neither can I understand the logic of trying to eliminate right away some possible options that come much later in the discussion, instead of leading a structured discussion towards them.

parminder

Paul

Paul Rosenzweig

paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>

O: +1 (202) 547-0660

M: +1 (202) 329-9650

VOIP: +1 (202) 738-1739

www.redbranchconsulting.com <http://www.redbranchconsulting.com/>

My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/

*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:* Thursday, October 27, 2016 9:04 PM *To:* Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch>; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

One thing to keep in mind about these court cases. The litigation concerns such things as whether ICANN was in breach of contract, whether it committed fraud, and whether it needs to be ordered to follow the IRP decision. It does _/not/_ put an American court in the position of deciding which of two applicants for the .AFRICA domain are the more worthy. In other words, the U.S. court in this case is not the policy maker, it is a settler of legal disputes among contracting or would-be contracting parties.

--MM

*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> *Sent:* Thursday, October 27, 2016 4:00 PM *To:* gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

Hi, here’s the website about the „.africa“ issue I mentioned in the chat: http://www.africainonespace.org/litigation.php

Cheers

Jorge

*Von:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *Im Auftrag von *Greg Shatan *Gesendet:* Donnerstag, 27. Oktober 2016 20:59 *An:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Betreff:* [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

_______________________________________________

Ws2-jurisdiction mailing list

Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org>

https://mm.icann.org/mailman/listinfo/ws2-jurisdiction