Re: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law
FWIW, punitive damages are not usually permitted in contract disputes – I wonder why ICANN includes them at all. Also, rather than requiring ICANN to agree to submit to the jurisdiction of every country where it has a relationship with a registry or registrar, is it worth considering regional jurisdiction? Contracts with European registries and registrars could specify Swiss or Dutch or some other law, etc.? J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW DC 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 Follow Neustar: LinkedIn / Twitter Reduce your environmental footprint. Print only if necessary. ________________________________ The information contained in this email message is intended only for the use of the recipient(s) named above and may contain confidential and/or privileged information. If you are not the intended recipient you have received this email message in error and any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately and delete the original message. From: <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>" <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> Date: Wednesday, September 6, 2017 at 4:19 PM To: "ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>" <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Subject: [EXTERNAL] [Ws2-jurisdiction] issues on applicable law Dear all, Here are, for your convenience, the two issues I have tried to briefly explain during today’s conference call, for your consideration. As said, the main thought is to reduce uncertainty, and clarify that the parties to the registry agreements have an effective freedom to choose the applicable law and to apply a principle of subsidiarity that may reduce potential conflicts with the national laws where they are based. == 1. Issue: The law applicable to the Registry Agreement has been identified as being the main issue: The Registry Agreement contains no provision relative to the choice of jurisdiction, the applicable law consequently not being defined by the Agreement. This creates great legal uncertainty and a potential issue as regards the jurisdiction given that it would be the prerogative of the arbitrators or the judges having jurisdiction -who could come from a US Court- to determine what law governs the relationship between ICANN and the registry. Pursuant to the current business practice, the applicable law is that of the party that provides the service in question, i.e. ICANN, a priori. A registry should therefore expect the potentially applicable law to be the law of the State of California. The applicable law further determines the faculty of ICANN to claim punitive or exemplary damages (i.e. under US law, damages highly surpassing the damage actually suffered, in order to punish a behavior), in the event the registry were to breach the contract in a deliberate and repeated manner (section 5.2 of the Registry Agreement.) This well-established institution of Common Law is non-existent under Swiss law, which follows the principle of compensation (damages are used to repair the damage but cannot enrich the claimant,) and should be considered to be contrary to public order. Were the Swiss law to apply to the Agreement, such damages would not be granted. Following the principles of the institutions typical to the Common Law provided for in the Registry Agreement poses issues of compatibility with other legal orders and suggests that Californian law would -a priori- apply to the Registry Agreement. Possible solutions: The applicable law should be determined on the basis of the legitimate expectations which the parties may have in terms of applicable law. It is understandable and appropriate that the fundamental provisions or duties contained in the Registry Agreement should apply equally to all registries around the world and be therefore interpreted in a uniform way. Beyond a few provisions and duties which are absolutely fundamental, it would be judicious and consistent with a legitimate expectation that the contractual relationship between ICANN and a registry be subject to the national law of the latter. The foregoing is all the more reasonable given that the manager of a generic domain (TLD) is delegated broad powers, as it is within its scope to establish the purpose of the domain, the eligibility, or the terms of the assignment of domain names, not to mention that it has great freedom as to the way in which a domain is actually managed. There already exist special provisions for registries that are IGO/Governmental entities (section 7.16 registry agreement): if international law is at stake, there is a procedure (mediation and arbitration ex 5.2.) to resolve disputes between the registry and ICANN – this special provision could be extended: - To other registries that are not IGOs/Public authorities - To cover not only “international law obligations” but also national law obligations 2. Issue: arbitration clause With regard to territorial jurisdiction, the arbitration clause (section 5.2 of the Registry Agreement entitled "Arbitration text for intergovernmental organizations or governmental entities") has allowed the ".swiss" registry to submit itself to the arbitration of the International Court of Arbitration of the International Chamber of Commerce in Geneva, Switzerland. This provision also provides for some flexibilities restricted to IGOs or governmental entities as regards the competent court. However these flexibilities are not open to all registry operators. Possible solutions: It would be wise in our opinion: - to also allow private registries to decide on the choice of their arbitration/competent court; - to broaden the possibilities of choice for all registries (by principle, to choose an arbitration recognized in each country.) == Hope this may be considered. Regards Jorge Jorge Cancio International Relations Federal Department of the Environment, Transport, Energy and Communications DETEC Federal Office of Communications OFCOM Zukunftstrasse 44, CH 2501 Biel Tel. +41 58 460 54 58 (direct) Tel. +41 32 327 55 11 (office) Fax +41 58 460 54 66 mailto: jorge.cancio@bakom.admin.ch<mailto:mailto:%20jorge.cancio@bakom.admin.ch> www.bakom.admin.ch<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.bakom.admin.ch_&d=Dw...> [cid:image001.png@01D2F585.7A604270] Igf2017.swiss<https://urldefense.proofpoint.com/v2/url?u=https-3A__igf2017.swiss_&d=DwMFAg...> info@igf2017.swiss<mailto:info@igf2017.swiss>
Dear Jorge, Thank you for providing details on your proposal. I will take the time to reply to some specific items in another email tomorrow (including your suggestion, Becky,) but since your proposal is also somewhat in line with mine, please allow me to respond here to some comments that were made during the call on the issue(s) of choice of law in registry agreements. And so these comments are not directed at your proposal but I just post them here for convenience's sake. -My initial intuition regarding this issue was that certainty of choice of law is *always* better than uncertainty. Obviously, input from registries on this matter would be important. I get that for you Jorge, or at least as far as .swiss is concerned, this is indeed an issue. -I made a distinction between between registry and registrar agreements because registrar agreements are not submitted to mandatory arbitration, but may be settled in court, which complicates the matter slightly. Courts are bound by their own private international law rules if they have to decide on the applicable law (which is not the case with arbitration.) Part of how I presented my issue revolves around the fact that arbitrators are free to choose the governing law as they see fit (or almost so) while courts are not. If you determine the court but not the choice of law, you can still reasonably predict the outcome the court will come to in matters of governing law given that they have set private international law (aka conflict of laws in the English-speaking world) rules. -To me the "flexibility" that may be provided by having no set law is more illusory than real to the extent that it becomes a liability. And in any case, what are the advantages of such a flexibility? What is it about? Arbitrators will still decide on one single governing law for the contract and the parties' place of registration is only one factor among other and generally not a determining one. I do not want to imply any "bad faith" on ICANN's part, however it remains that this "flexibility" plays much more to their advantage than anyone else's and may very well serve to hold them less accountable if the current setup forestalls litigation by registries. -All this being said, I do agree that all this is a non-issue if all the registries either collectively do not care and/or do not want to undergo contract modifications with ICANN. I have no view on how complex that can be in terms of process and how amenable registries would be to such changes. However, let us say that we agree as a subgroup that this is a valid issue, wouldn't it be more productive to gather the registries' comments during the public comments period? More to follow tomorrow... Best, 2017-09-07 13:55 GMT+02:00 Burr, Becky via Ws2-jurisdiction < ws2-jurisdiction@icann.org>:
FWIW, punitive damages are not usually permitted in contract disputes – I wonder why ICANN includes them at all.
Also, rather than requiring ICANN to agree to submit to the jurisdiction of every country where it has a relationship with a registry or registrar, is it worth considering regional jurisdiction? Contracts with European registries and registrars could specify Swiss or Dutch or some other law, etc.?
*J. Beckwith Burr* *Neustar, Inc.* / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW DC 20006 *Office:* +1.202.533.2932 *Mobile:* +1.202.352.6367
*Follow Neustar:* LinkedIn */* Twitter Reduce your environmental footprint. Print only if necessary. ------------------------------
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From: <ws2-jurisdiction-bounces@icann.org> on behalf of " Jorge.Cancio@bakom.admin.ch" <Jorge.Cancio@bakom.admin.ch> Date: Wednesday, September 6, 2017 at 4:19 PM To: "ws2-jurisdiction@icann.org" <ws2-jurisdiction@icann.org> Subject: [EXTERNAL] [Ws2-jurisdiction] issues on applicable law
Dear all,
Here are, for your convenience, the two issues I have tried to briefly explain during today’s conference call, for your consideration.
As said, the main thought is to reduce uncertainty, and clarify that the parties to the registry agreements have an effective freedom to choose the applicable law and to apply a principle of subsidiarity that may reduce potential conflicts with the national laws where they are based.
==
1. *Issue: *The law applicable to the Registry Agreement has been identified as being the main issue:
The Registry Agreement contains no provision relative to the choice of jurisdiction, the applicable law consequently not being defined by the Agreement.
This creates great legal uncertainty and a potential issue as regards the jurisdiction given that it would be the prerogative of the arbitrators or the judges having jurisdiction -who could come from a US Court- to determine what law governs the relationship between ICANN and the registry.
Pursuant to the current business practice, the applicable law is that of the party that provides the service in question, i.e. ICANN, a priori. A registry should therefore expect the potentially applicable law to be the law of the State of California.
The applicable law further determines the faculty of ICANN to claim punitive or exemplary damages (i.e. under US law, damages highly surpassing the damage actually suffered, in order to punish a behavior), in the event the registry were to breach the contract in a deliberate and repeated manner (section 5.2 of the Registry Agreement.) This well-established institution of Common Law is non-existent under Swiss law, which follows the principle of compensation (damages are used to repair the damage but cannot enrich the claimant,) and should be considered to be contrary to public order. Were the Swiss law to apply to the Agreement, such damages would not be granted. Following the principles of the institutions typical to the Common Law provided for in the Registry Agreement poses issues of compatibility with other legal orders and suggests that Californian law would -a priori- apply to the Registry Agreement.
*Possible solutions:*
The applicable law should be determined on the basis of the legitimate expectations which the parties may have in terms of applicable law. It is understandable and appropriate that the fundamental provisions or duties contained in the Registry Agreement should apply equally to all registries around the world and be therefore interpreted in a uniform way.
Beyond a few provisions and duties which are absolutely fundamental, it would be judicious and consistent with a legitimate expectation that the contractual relationship between ICANN and a registry be subject to the national law of the latter. The foregoing is all the more reasonable given that the manager of a generic domain (TLD) is delegated broad powers, as it is within its scope to establish the purpose of the domain, the eligibility, or the terms of the assignment of domain names, not to mention that it has great freedom as to the way in which a domain is actually managed.
There already exist special provisions for registries that are IGO/Governmental entities (section 7.16 registry agreement): if international law is at stake, there is a procedure (mediation and arbitration ex 5.2.) to resolve disputes between the registry and ICANN – this special provision could be extended:
- To other registries that are not IGOs/Public authorities
- To cover not only “international law obligations” but also national law obligations
2. *Issue: **arbitration clause*
With regard to territorial jurisdiction, the arbitration clause (section 5.2 of the Registry Agreement entitled "Arbitration text for intergovernmental organizations or governmental entities") has allowed the ".swiss" registry to submit itself to the arbitration of the International Court of Arbitration of the International Chamber of Commerce in Geneva, Switzerland. This provision also provides for some flexibilities restricted to IGOs or governmental entities as regards the competent court.
However these flexibilities are not open to all registry operators.
*Possible solutions:*
It would be wise in our opinion:
- to also allow private registries to decide on the choice of their arbitration/competent court;
- to broaden the possibilities of choice for all registries (by principle, to choose an arbitration recognized in each country.)
==
Hope this may be considered.
Regards
Jorge
*Jorge Cancio *
International Relations
Federal Department of the Environment, Transport, Energy and Communications DETEC
Federal Office of Communications OFCOM
Zukunftstrasse 44, CH 2501 Biel
Tel. +41 58 460 54 58 (direct)
Tel. +41 32 327 55 11 (office)
Fax +41 58 460 54 66
mailto: jorge.cancio@bakom.admin.ch
www.bakom.admin.ch <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.bakom.admin.ch_&d=Dw...>
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info@igf2017.swiss
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Dear Beckie Thanks for your views to which I totally disagree as a) thgere is no regional jurisdiction and b) there is no agreed definition of region. It is Strange that such a competent person like you taking about Something which does not exist t and can not exist as region is a term totally subjdective and can in no way be used for jurisdiction Kavouss On Thu, Sep 7, 2017 at 1:55 PM, Burr, Becky via Ws2-jurisdiction < ws2-jurisdiction@icann.org> wrote:
FWIW, punitive damages are not usually permitted in contract disputes – I wonder why ICANN includes them at all.
Also, rather than requiring ICANN to agree to submit to the jurisdiction of every country where it has a relationship with a registry or registrar, is it worth considering regional jurisdiction? Contracts with European registries and registrars could specify Swiss or Dutch or some other law, etc.?
*J. Beckwith Burr* *Neustar, Inc.* / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW DC 20006 *Office:* +1.202.533.2932 *Mobile:* +1.202.352.6367
*Follow Neustar:* LinkedIn */* Twitter Reduce your environmental footprint. Print only if necessary. ------------------------------
The information contained in this email message is intended only for the use of the recipient(s) named above and may contain confidential and/or privileged information. If you are not the intended recipient you have received this email message in error and any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately and delete the original message.
From: <ws2-jurisdiction-bounces@icann.org> on behalf of " Jorge.Cancio@bakom.admin.ch" <Jorge.Cancio@bakom.admin.ch> Date: Wednesday, September 6, 2017 at 4:19 PM To: "ws2-jurisdiction@icann.org" <ws2-jurisdiction@icann.org> Subject: [EXTERNAL] [Ws2-jurisdiction] issues on applicable law
Dear all,
Here are, for your convenience, the two issues I have tried to briefly explain during today’s conference call, for your consideration.
As said, the main thought is to reduce uncertainty, and clarify that the parties to the registry agreements have an effective freedom to choose the applicable law and to apply a principle of subsidiarity that may reduce potential conflicts with the national laws where they are based.
==
1. *Issue: *The law applicable to the Registry Agreement has been identified as being the main issue:
The Registry Agreement contains no provision relative to the choice of jurisdiction, the applicable law consequently not being defined by the Agreement.
This creates great legal uncertainty and a potential issue as regards the jurisdiction given that it would be the prerogative of the arbitrators or the judges having jurisdiction -who could come from a US Court- to determine what law governs the relationship between ICANN and the registry.
Pursuant to the current business practice, the applicable law is that of the party that provides the service in question, i.e. ICANN, a priori. A registry should therefore expect the potentially applicable law to be the law of the State of California.
The applicable law further determines the faculty of ICANN to claim punitive or exemplary damages (i.e. under US law, damages highly surpassing the damage actually suffered, in order to punish a behavior), in the event the registry were to breach the contract in a deliberate and repeated manner (section 5.2 of the Registry Agreement.) This well-established institution of Common Law is non-existent under Swiss law, which follows the principle of compensation (damages are used to repair the damage but cannot enrich the claimant,) and should be considered to be contrary to public order. Were the Swiss law to apply to the Agreement, such damages would not be granted. Following the principles of the institutions typical to the Common Law provided for in the Registry Agreement poses issues of compatibility with other legal orders and suggests that Californian law would -a priori- apply to the Registry Agreement.
*Possible solutions:*
The applicable law should be determined on the basis of the legitimate expectations which the parties may have in terms of applicable law. It is understandable and appropriate that the fundamental provisions or duties contained in the Registry Agreement should apply equally to all registries around the world and be therefore interpreted in a uniform way.
Beyond a few provisions and duties which are absolutely fundamental, it would be judicious and consistent with a legitimate expectation that the contractual relationship between ICANN and a registry be subject to the national law of the latter. The foregoing is all the more reasonable given that the manager of a generic domain (TLD) is delegated broad powers, as it is within its scope to establish the purpose of the domain, the eligibility, or the terms of the assignment of domain names, not to mention that it has great freedom as to the way in which a domain is actually managed.
There already exist special provisions for registries that are IGO/Governmental entities (section 7.16 registry agreement): if international law is at stake, there is a procedure (mediation and arbitration ex 5.2.) to resolve disputes between the registry and ICANN – this special provision could be extended:
- To other registries that are not IGOs/Public authorities
- To cover not only “international law obligations” but also national law obligations
2. *Issue: **arbitration clause*
With regard to territorial jurisdiction, the arbitration clause (section 5.2 of the Registry Agreement entitled "Arbitration text for intergovernmental organizations or governmental entities") has allowed the ".swiss" registry to submit itself to the arbitration of the International Court of Arbitration of the International Chamber of Commerce in Geneva, Switzerland. This provision also provides for some flexibilities restricted to IGOs or governmental entities as regards the competent court.
However these flexibilities are not open to all registry operators.
*Possible solutions:*
It would be wise in our opinion:
- to also allow private registries to decide on the choice of their arbitration/competent court;
- to broaden the possibilities of choice for all registries (by principle, to choose an arbitration recognized in each country.)
==
Hope this may be considered.
Regards
Jorge
*Jorge Cancio *
International Relations
Federal Department of the Environment, Transport, Energy and Communications DETEC
Federal Office of Communications OFCOM
Zukunftstrasse 44, CH 2501 Biel
Tel. +41 58 460 54 58 (direct)
Tel. +41 32 327 55 11 (office)
Fax +41 58 460 54 66
mailto: jorge.cancio@bakom.admin.ch
www.bakom.admin.ch <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.bakom.admin.ch_&d=Dw...>
[image: cid:image001.png@01D2F585.7A604270]
Igf2017.swiss <https://urldefense.proofpoint.com/v2/url?u=https-3A__igf2017.swiss_&d=DwMFAg...>
info@igf2017.swiss
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Dear all, I would support Beck Burr. It makes good sense to recommand regional arbitration courts that know the ICANN system and are established in jurisdictions with only necessary interference in arbitation (e.g. due process, transparency, rule of law). Best, Erich Von: Kavouss Arasteh<mailto:kavouss.arasteh@gmail.com> Gesendet: Montag, 11. September 2017 07:12 An: Burr, Becky<mailto:Becky.Burr@team.neustar>; ws2-jurisdiction<mailto:ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law Dear Beckie Thanks for your views to which I totally disagree as a) thgere is no regional jurisdiction and b) there is no agreed definition of region. It is Strange that such a competent person like you taking about Something which does not exist t and can not exist as region is a term totally subjdective and can in no way be used for jurisdiction Kavouss On Thu, Sep 7, 2017 at 1:55 PM, Burr, Becky via Ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> wrote: FWIW, punitive damages are not usually permitted in contract disputes – I wonder why ICANN includes them at all. Also, rather than requiring ICANN to agree to submit to the jurisdiction of every country where it has a relationship with a registry or registrar, is it worth considering regional jurisdiction? Contracts with European registries and registrars could specify Swiss or Dutch or some other law, etc.? J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW DC 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 Follow Neustar: LinkedIn / Twitter Reduce your environmental footprint. Print only if necessary. ________________________________ The information contained in this email message is intended only for the use of the recipient(s) named above and may contain confidential and/or privileged information. If you are not the intended recipient you have received this email message in error and any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately and delete the original message. From: <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>" <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> Date: Wednesday, September 6, 2017 at 4:19 PM To: "ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>" <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Subject: [EXTERNAL] [Ws2-jurisdiction] issues on applicable law Dear all, Here are, for your convenience, the two issues I have tried to briefly explain during today’s conference call, for your consideration. As said, the main thought is to reduce uncertainty, and clarify that the parties to the registry agreements have an effective freedom to choose the applicable law and to apply a principle of subsidiarity that may reduce potential conflicts with the national laws where they are based. == 1. Issue: The law applicable to the Registry Agreement has been identified as being the main issue: The Registry Agreement contains no provision relative to the choice of jurisdiction, the applicable law consequently not being defined by the Agreement. This creates great legal uncertainty and a potential issue as regards the jurisdiction given that it would be the prerogative of the arbitrators or the judges having jurisdiction -who could come from a US Court- to determine what law governs the relationship between ICANN and the registry. Pursuant to the current business practice, the applicable law is that of the party that provides the service in question, i.e. ICANN, a priori. A registry should therefore expect the potentially applicable law to be the law of the State of California. The applicable law further determines the faculty of ICANN to claim punitive or exemplary damages (i.e. under US law, damages highly surpassing the damage actually suffered, in order to punish a behavior), in the event the registry were to breach the contract in a deliberate and repeated manner (section 5.2 of the Registry Agreement.) This well-established institution of Common Law is non-existent under Swiss law, which follows the principle of compensation (damages are used to repair the damage but cannot enrich the claimant,) and should be considered to be contrary to public order. Were the Swiss law to apply to the Agreement, such damages would not be granted. Following the principles of the institutions typical to the Common Law provided for in the Registry Agreement poses issues of compatibility with other legal orders and suggests that Californian law would -a priori- apply to the Registry Agreement. Possible solutions: The applicable law should be determined on the basis of the legitimate expectations which the parties may have in terms of applicable law. It is understandable and appropriate that the fundamental provisions or duties contained in the Registry Agreement should apply equally to all registries around the world and be therefore interpreted in a uniform way. Beyond a few provisions and duties which are absolutely fundamental, it would be judicious and consistent with a legitimate expectation that the contractual relationship between ICANN and a registry be subject to the national law of the latter. The foregoing is all the more reasonable given that the manager of a generic domain (TLD) is delegated broad powers, as it is within its scope to establish the purpose of the domain, the eligibility, or the terms of the assignment of domain names, not to mention that it has great freedom as to the way in which a domain is actually managed. There already exist special provisions for registries that are IGO/Governmental entities (section 7.16 registry agreement): if international law is at stake, there is a procedure (mediation and arbitration ex 5.2.) to resolve disputes between the registry and ICANN – this special provision could be extended: - To other registries that are not IGOs/Public authorities - To cover not only “international law obligations” but also national law obligations 2. Issue: arbitration clause With regard to territorial jurisdiction, the arbitration clause (section 5.2 of the Registry Agreement entitled "Arbitration text for intergovernmental organizations or governmental entities") has allowed the ".swiss" registry to submit itself to the arbitration of the International Court of Arbitration of the International Chamber of Commerce in Geneva, Switzerland. This provision also provides for some flexibilities restricted to IGOs or governmental entities as regards the competent court. However these flexibilities are not open to all registry operators. Possible solutions: It would be wise in our opinion: - to also allow private registries to decide on the choice of their arbitration/competent court; - to broaden the possibilities of choice for all registries (by principle, to choose an arbitration recognized in each country.) == Hope this may be considered. Regards Jorge Jorge Cancio International Relations Federal Department of the Environment, Transport, Energy and Communications DETEC Federal Office of Communications OFCOM Zukunftstrasse 44, CH 2501 Biel Tel. +41 58 460 54 58 (direct) Tel. +41 32 327 55 11 (office) Fax +41 58 460 54 66 mailto: jorge.cancio@bakom.admin.ch<mailto:mailto:%20jorge.cancio@bakom.admin.ch> www.bakom.admin.ch<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.bakom.admin.ch_&d=Dw...> [cid:image001.png@01D2F585.7A604270] Igf2017.swiss<https://urldefense.proofpoint.com/v2/url?u=https-3A__igf2017.swiss_&d=DwMFAg...> info@igf2017.swiss<mailto:info@igf2017.swiss> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Kavouss, I believe that was Becky was suggesting was an adaptation of applicable law according to pre-defined regions in the world. For example, all registries in Europe could enter into a RA whose governing law would be Dutch law while North American registries would have US law as governing law, and then the community could provide input on which governing law they would want to have on a regional basis. The same could go with courts, as I and Eric mentioned as well. Obviously defining regions is somewhat arbitrary, but the community could also provide input on that. I still think that the RAs are drafted accoding to an American style and would be better served by California law governing, while there could be more flexibility on the choice of forum. Best, 2017-09-11 7:19 GMT+02:00 Schweighofer Erich < erich.schweighofer@univie.ac.at>:
Dear all,
I would support Beck Burr. It makes good sense to recommand regional arbitration courts that know the ICANN system and are established in jurisdictions with only necessary interference in arbitation (e.g. due process, transparency, rule of law).
Best,
Erich
*Von: *Kavouss Arasteh <kavouss.arasteh@gmail.com> *Gesendet: *Montag, 11. September 2017 07:12 *An: *Burr, Becky <Becky.Burr@team.neustar>; ws2-jurisdiction <ws2-jurisdiction@icann.org> *Betreff: *Re: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law
Dear Beckie Thanks for your views to which I totally disagree as a) thgere is no regional jurisdiction and b) there is no agreed definition of region. It is Strange that such a competent person like you taking about Something which does not exist t and can not exist as region is a term totally subjdective and can in no way be used for jurisdiction Kavouss
On Thu, Sep 7, 2017 at 1:55 PM, Burr, Becky via Ws2-jurisdiction < ws2-jurisdiction@icann.org> wrote:
FWIW, punitive damages are not usually permitted in contract disputes – I wonder why ICANN includes them at all.
Also, rather than requiring ICANN to agree to submit to the jurisdiction of every country where it has a relationship with a registry or registrar, is it worth considering regional jurisdiction? Contracts with European registries and registrars could specify Swiss or Dutch or some other law, etc.?
*J. Beckwith Burr* *Neustar, Inc.* / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW DC 20006 *Office:* +1.202.533.2932 *Mobile:* +1.202.352.6367
*Follow Neustar:* LinkedIn */* Twitter Reduce your environmental footprint. Print only if necessary. ------------------------------
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From: <ws2-jurisdiction-bounces@icann.org> on behalf of " Jorge.Cancio@bakom.admin.ch" <Jorge.Cancio@bakom.admin.ch> Date: Wednesday, September 6, 2017 at 4:19 PM To: "ws2-jurisdiction@icann.org" <ws2-jurisdiction@icann.org> Subject: [EXTERNAL] [Ws2-jurisdiction] issues on applicable law
Dear all,
Here are, for your convenience, the two issues I have tried to briefly explain during today’s conference call, for your consideration.
As said, the main thought is to reduce uncertainty, and clarify that the parties to the registry agreements have an effective freedom to choose the applicable law and to apply a principle of subsidiarity that may reduce potential conflicts with the national laws where they are based.
==
1. *Issue: *The law applicable to the Registry Agreement has been identified as being the main issue:
The Registry Agreement contains no provision relative to the choice of jurisdiction, the applicable law consequently not being defined by the Agreement.
This creates great legal uncertainty and a potential issue as regards the jurisdiction given that it would be the prerogative of the arbitrators or the judges having jurisdiction -who could come from a US Court- to determine what law governs the relationship between ICANN and the registry.
Pursuant to the current business practice, the applicable law is that of the party that provides the service in question, i.e. ICANN, a priori. A registry should therefore expect the potentially applicable law to be the law of the State of California.
The applicable law further determines the faculty of ICANN to claim punitive or exemplary damages (i.e. under US law, damages highly surpassing the damage actually suffered, in order to punish a behavior), in the event the registry were to breach the contract in a deliberate and repeated manner (section 5.2 of the Registry Agreement.) This well-established institution of Common Law is non-existent under Swiss law, which follows the principle of compensation (damages are used to repair the damage but cannot enrich the claimant,) and should be considered to be contrary to public order. Were the Swiss law to apply to the Agreement, such damages would not be granted. Following the principles of the institutions typical to the Common Law provided for in the Registry Agreement poses issues of compatibility with other legal orders and suggests that Californian law would -a priori- apply to the Registry Agreement.
*Possible solutions:*
The applicable law should be determined on the basis of the legitimate expectations which the parties may have in terms of applicable law. It is understandable and appropriate that the fundamental provisions or duties contained in the Registry Agreement should apply equally to all registries around the world and be therefore interpreted in a uniform way.
Beyond a few provisions and duties which are absolutely fundamental, it would be judicious and consistent with a legitimate expectation that the contractual relationship between ICANN and a registry be subject to the national law of the latter. The foregoing is all the more reasonable given that the manager of a generic domain (TLD) is delegated broad powers, as it is within its scope to establish the purpose of the domain, the eligibility, or the terms of the assignment of domain names, not to mention that it has great freedom as to the way in which a domain is actually managed.
There already exist special provisions for registries that are IGO/Governmental entities (section 7.16 registry agreement): if international law is at stake, there is a procedure (mediation and arbitration ex 5.2.) to resolve disputes between the registry and ICANN – this special provision could be extended:
- To other registries that are not IGOs/Public authorities
- To cover not only “international law obligations” but also national law obligations
2. *Issue: **arbitration clause*
With regard to territorial jurisdiction, the arbitration clause (section 5.2 of the Registry Agreement entitled "Arbitration text for intergovernmental organizations or governmental entities") has allowed the ".swiss" registry to submit itself to the arbitration of the International Court of Arbitration of the International Chamber of Commerce in Geneva, Switzerland. This provision also provides for some flexibilities restricted to IGOs or governmental entities as regards the competent court.
However these flexibilities are not open to all registry operators.
*Possible solutions:*
It would be wise in our opinion:
- to also allow private registries to decide on the choice of their arbitration/competent court;
- to broaden the possibilities of choice for all registries (by principle, to choose an arbitration recognized in each country.)
==
Hope this may be considered.
Regards
Jorge
*Jorge Cancio *
International Relations
Federal Department of the Environment, Transport, Energy and Communications DETEC
Federal Office of Communications OFCOM
Zukunftstrasse 44, CH 2501 Biel
Tel. +41 58 460 54 58 (direct)
Tel. +41 32 327 55 11 (office)
Fax +41 58 460 54 66
mailto: jorge.cancio@bakom.admin.ch
www.bakom.admin.ch <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.bakom.admin.ch_&d=Dw...>
[image: cid:image001.png@01D2F585.7A604270]
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info@igf2017.swiss
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I meant to say, "the same could go with the forum", not court, obivously ;) Best, 2017-09-11 10:46 GMT+02:00 Raphaël BEAUREGARD-LACROIX < raphael.beauregardlacroix@sciencespo.fr>:
Kavouss,
I believe that was Becky was suggesting was an adaptation of applicable law according to pre-defined regions in the world.
For example, all registries in Europe could enter into a RA whose governing law would be Dutch law while North American registries would have US law as governing law, and then the community could provide input on which governing law they would want to have on a regional basis.
The same could go with courts, as I and Eric mentioned as well.
Obviously defining regions is somewhat arbitrary, but the community could also provide input on that.
I still think that the RAs are drafted accoding to an American style and would be better served by California law governing, while there could be more flexibility on the choice of forum.
Best,
2017-09-11 7:19 GMT+02:00 Schweighofer Erich < erich.schweighofer@univie.ac.at>:
Dear all,
I would support Beck Burr. It makes good sense to recommand regional arbitration courts that know the ICANN system and are established in jurisdictions with only necessary interference in arbitation (e.g. due process, transparency, rule of law).
Best,
Erich
*Von: *Kavouss Arasteh <kavouss.arasteh@gmail.com> *Gesendet: *Montag, 11. September 2017 07:12 *An: *Burr, Becky <Becky.Burr@team.neustar>; ws2-jurisdiction <ws2-jurisdiction@icann.org> *Betreff: *Re: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law
Dear Beckie Thanks for your views to which I totally disagree as a) thgere is no regional jurisdiction and b) there is no agreed definition of region. It is Strange that such a competent person like you taking about Something which does not exist t and can not exist as region is a term totally subjdective and can in no way be used for jurisdiction Kavouss
On Thu, Sep 7, 2017 at 1:55 PM, Burr, Becky via Ws2-jurisdiction < ws2-jurisdiction@icann.org> wrote:
FWIW, punitive damages are not usually permitted in contract disputes – I wonder why ICANN includes them at all.
Also, rather than requiring ICANN to agree to submit to the jurisdiction of every country where it has a relationship with a registry or registrar, is it worth considering regional jurisdiction? Contracts with European registries and registrars could specify Swiss or Dutch or some other law, etc.?
*J. Beckwith Burr* *Neustar, Inc.* / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW DC 20006 *Office:* +1.202.533.2932 *Mobile:* +1.202.352.6367
*Follow Neustar:* LinkedIn */* Twitter Reduce your environmental footprint. Print only if necessary. ------------------------------
The information contained in this email message is intended only for the use of the recipient(s) named above and may contain confidential and/or privileged information. If you are not the intended recipient you have received this email message in error and any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately and delete the original message.
From: <ws2-jurisdiction-bounces@icann.org> on behalf of " Jorge.Cancio@bakom.admin.ch" <Jorge.Cancio@bakom.admin.ch> Date: Wednesday, September 6, 2017 at 4:19 PM To: "ws2-jurisdiction@icann.org" <ws2-jurisdiction@icann.org> Subject: [EXTERNAL] [Ws2-jurisdiction] issues on applicable law
Dear all,
Here are, for your convenience, the two issues I have tried to briefly explain during today’s conference call, for your consideration.
As said, the main thought is to reduce uncertainty, and clarify that the parties to the registry agreements have an effective freedom to choose the applicable law and to apply a principle of subsidiarity that may reduce potential conflicts with the national laws where they are based.
==
1. *Issue: *The law applicable to the Registry Agreement has been identified as being the main issue:
The Registry Agreement contains no provision relative to the choice of jurisdiction, the applicable law consequently not being defined by the Agreement.
This creates great legal uncertainty and a potential issue as regards the jurisdiction given that it would be the prerogative of the arbitrators or the judges having jurisdiction -who could come from a US Court- to determine what law governs the relationship between ICANN and the registry.
Pursuant to the current business practice, the applicable law is that of the party that provides the service in question, i.e. ICANN, a priori. A registry should therefore expect the potentially applicable law to be the law of the State of California.
The applicable law further determines the faculty of ICANN to claim punitive or exemplary damages (i.e. under US law, damages highly surpassing the damage actually suffered, in order to punish a behavior), in the event the registry were to breach the contract in a deliberate and repeated manner (section 5.2 of the Registry Agreement.) This well-established institution of Common Law is non-existent under Swiss law, which follows the principle of compensation (damages are used to repair the damage but cannot enrich the claimant,) and should be considered to be contrary to public order. Were the Swiss law to apply to the Agreement, such damages would not be granted. Following the principles of the institutions typical to the Common Law provided for in the Registry Agreement poses issues of compatibility with other legal orders and suggests that Californian law would -a priori- apply to the Registry Agreement.
*Possible solutions:*
The applicable law should be determined on the basis of the legitimate expectations which the parties may have in terms of applicable law. It is understandable and appropriate that the fundamental provisions or duties contained in the Registry Agreement should apply equally to all registries around the world and be therefore interpreted in a uniform way.
Beyond a few provisions and duties which are absolutely fundamental, it would be judicious and consistent with a legitimate expectation that the contractual relationship between ICANN and a registry be subject to the national law of the latter. The foregoing is all the more reasonable given that the manager of a generic domain (TLD) is delegated broad powers, as it is within its scope to establish the purpose of the domain, the eligibility, or the terms of the assignment of domain names, not to mention that it has great freedom as to the way in which a domain is actually managed.
There already exist special provisions for registries that are IGO/Governmental entities (section 7.16 registry agreement): if international law is at stake, there is a procedure (mediation and arbitration ex 5.2.) to resolve disputes between the registry and ICANN – this special provision could be extended:
- To other registries that are not IGOs/Public authorities
- To cover not only “international law obligations” but also national law obligations
2. *Issue: **arbitration clause*
With regard to territorial jurisdiction, the arbitration clause (section 5.2 of the Registry Agreement entitled "Arbitration text for intergovernmental organizations or governmental entities") has allowed the ".swiss" registry to submit itself to the arbitration of the International Court of Arbitration of the International Chamber of Commerce in Geneva, Switzerland. This provision also provides for some flexibilities restricted to IGOs or governmental entities as regards the competent court.
However these flexibilities are not open to all registry operators.
*Possible solutions:*
It would be wise in our opinion:
- to also allow private registries to decide on the choice of their arbitration/competent court;
- to broaden the possibilities of choice for all registries (by principle, to choose an arbitration recognized in each country.)
==
Hope this may be considered.
Regards
Jorge
*Jorge Cancio *
International Relations
Federal Department of the Environment, Transport, Energy and Communications DETEC
Federal Office of Communications OFCOM
Zukunftstrasse 44, CH 2501 Biel
Tel. +41 58 460 54 58 (direct)
Tel. +41 32 327 55 11 (office)
Fax +41 58 460 54 66
mailto: jorge.cancio@bakom.admin.ch
www.bakom.admin.ch <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.bakom.admin.ch_&d=Dw...>
[image: cid:image001.png@01D2F585.7A604270]
Igf2017.swiss <https://urldefense.proofpoint.com/v2/url?u=https-3A__igf2017.swiss_&d=DwMFAg...>
info@igf2017.swiss
_______________________________________________ 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
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-- Raphaël Beauregard-Lacroix LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
Dear Raphael Yes ,many thing are possible to do but difficult to achieve. No problem to try if achievable Regards Kavouss Sent from my iPhone
On 11 Sep 2017, at 13:17, Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr> wrote:
I meant to say, "the same could go with the forum", not court, obivously ;)
Best,
2017-09-11 10:46 GMT+02:00 Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr>:
Kavouss,
I believe that was Becky was suggesting was an adaptation of applicable law according to pre-defined regions in the world.
For example, all registries in Europe could enter into a RA whose governing law would be Dutch law while North American registries would have US law as governing law, and then the community could provide input on which governing law they would want to have on a regional basis.
The same could go with courts, as I and Eric mentioned as well.
Obviously defining regions is somewhat arbitrary, but the community could also provide input on that.
I still think that the RAs are drafted accoding to an American style and would be better served by California law governing, while there could be more flexibility on the choice of forum.
Best,
2017-09-11 7:19 GMT+02:00 Schweighofer Erich <erich.schweighofer@univie.ac.at>:
Dear all,
I would support Beck Burr. It makes good sense to recommand regional arbitration courts that know the ICANN system and are established in jurisdictions with only necessary interference in arbitation (e.g. due process, transparency, rule of law).
Best,
Erich
Von: Kavouss Arasteh Gesendet: Montag, 11. September 2017 07:12 An: Burr, Becky; ws2-jurisdiction Betreff: Re: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law
Dear Beckie Thanks for your views to which I totally disagree as a) thgere is no regional jurisdiction and b) there is no agreed definition of region. It is Strange that such a competent person like you taking about Something which does not exist t and can not exist as region is a term totally subjdective and can in no way be used for jurisdiction Kavouss
On Thu, Sep 7, 2017 at 1:55 PM, Burr, Becky via Ws2-jurisdiction <ws2-jurisdiction@icann.org> wrote: FWIW, punitive damages are not usually permitted in contract disputes – I wonder why ICANN includes them at all.
Also, rather than requiring ICANN to agree to submit to the jurisdiction of every country where it has a relationship with a registry or registrar, is it worth considering regional jurisdiction? Contracts with European registries and registrars could specify Swiss or Dutch or some other law, etc.?
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW DC 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367
Follow Neustar: LinkedIn / Twitter Reduce your environmental footprint. Print only if necessary.
The information contained in this email message is intended only for the use of the recipient(s) named above and may contain confidential and/or privileged information. If you are not the intended recipient you have received this email message in error and any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately and delete the original message.
From: <ws2-jurisdiction-bounces@icann.org> on behalf of "Jorge.Cancio@bakom.admin.ch" <Jorge.Cancio@bakom.admin.ch> Date: Wednesday, September 6, 2017 at 4:19 PM To: "ws2-jurisdiction@icann.org" <ws2-jurisdiction@icann.org> Subject: [EXTERNAL] [Ws2-jurisdiction] issues on applicable law
Dear all,
Here are, for your convenience, the two issues I have tried to briefly explain during today’s conference call, for your consideration.
As said, the main thought is to reduce uncertainty, and clarify that the parties to the registry agreements have an effective freedom to choose the applicable law and to apply a principle of subsidiarity that may reduce potential conflicts with the national laws where they are based.
==
1. Issue: The law applicable to the Registry Agreement has been identified as being the main issue:
The Registry Agreement contains no provision relative to the choice of jurisdiction, the applicable law consequently not being defined by the Agreement.
This creates great legal uncertainty and a potential issue as regards the jurisdiction given that it would be the prerogative of the arbitrators or the judges having jurisdiction -who could come from a US Court- to determine what law governs the relationship between ICANN and the registry.
Pursuant to the current business practice, the applicable law is that of the party that provides the service in question, i.e. ICANN, a priori. A registry should therefore expect the potentially applicable law to be the law of the State of California.
The applicable law further determines the faculty of ICANN to claim punitive or exemplary damages (i.e. under US law, damages highly surpassing the damage actually suffered, in order to punish a behavior), in the event the registry were to breach the contract in a deliberate and repeated manner (section 5.2 of the Registry Agreement.) This well-established institution of Common Law is non-existent under Swiss law, which follows the principle of compensation (damages are used to repair the damage but cannot enrich the claimant,) and should be considered to be contrary to public order. Were the Swiss law to apply to the Agreement, such damages would not be granted. Following the principles of the institutions typical to the Common Law provided for in the Registry Agreement poses issues of compatibility with other legal orders and suggests that Californian law would -a priori- apply to the Registry Agreement.
Possible solutions:
The applicable law should be determined on the basis of the legitimate expectations which the parties may have in terms of applicable law. It is understandable and appropriate that the fundamental provisions or duties contained in the Registry Agreement should apply equally to all registries around the world and be therefore interpreted in a uniform way.
Beyond a few provisions and duties which are absolutely fundamental, it would be judicious and consistent with a legitimate expectation that the contractual relationship between ICANN and a registry be subject to the national law of the latter. The foregoing is all the more reasonable given that the manager of a generic domain (TLD) is delegated broad powers, as it is within its scope to establish the purpose of the domain, the eligibility, or the terms of the assignment of domain names, not to mention that it has great freedom as to the way in which a domain is actually managed.
There already exist special provisions for registries that are IGO/Governmental entities (section 7.16 registry agreement): if international law is at stake, there is a procedure (mediation and arbitration ex 5.2.) to resolve disputes between the registry and ICANN – this special provision could be extended:
- To other registries that are not IGOs/Public authorities
- To cover not only “international law obligations” but also national law obligations
2. Issue: arbitration clause
With regard to territorial jurisdiction, the arbitration clause (section 5.2 of the Registry Agreement entitled "Arbitration text for intergovernmental organizations or governmental entities") has allowed the ".swiss" registry to submit itself to the arbitration of the International Court of Arbitration of the International Chamber of Commerce in Geneva, Switzerland. This provision also provides for some flexibilities restricted to IGOs or governmental entities as regards the competent court.
However these flexibilities are not open to all registry operators.
Possible solutions:
It would be wise in our opinion:
- to also allow private registries to decide on the choice of their arbitration/competent court;
- to broaden the possibilities of choice for all registries (by principle, to choose an arbitration recognized in each country.)
==
Hope this may be considered.
Regards
Jorge
Jorge Cancio
International Relations
Federal Department of the Environment, Transport, Energy and Communications DETEC
Federal Office of Communications OFCOM
Zukunftstrasse 44, CH 2501 Biel
Tel. +41 58 460 54 58 (direct)
Tel. +41 32 327 55 11 (office)
Fax +41 58 460 54 66
mailto: jorge.cancio@bakom.admin.ch
www.bakom.admin.ch
<image001.png>
Igf2017.swiss
info@igf2017.swiss
_______________________________________________ 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
-- Raphaël Beauregard-Lacroix LinkedIn - @rbl0012 - M: +33 7 86 39 18 15
-- Raphaël Beauregard-Lacroix LinkedIn - @rbl0012 - M: +33 7 86 39 18 15
I see no reason whatsoever to limit the forum. Admiralty/maritime cases have a shopping list of jurisdictions that are well-versed in marine cases which are (I think) New York London Cairo and maybe a couple of others. And the parties can choose. As ICANN is better placed to handle other fora, the other party should have a free choice. On 11/09/17 09:46, Raphaël BEAUREGARD-LACROIX wrote:
Kavouss,
I believe that was Becky was suggesting was an adaptation of applicable law according to pre-defined regions in the worldYou
For example, all registries in Europe could enter into a RA whose governing law would be Dutch law while North American registries would have US law as governing law, and then the community could provide input on which governing law they would want to have on a regional basis.
The same could go with courts, as I and Eric mentioned as well.
Obviously defining regions is somewhat arbitrary, but the community could also provide input on that.
I still think that the RAs are drafted accoding to an American style and would be better served by California law governing, while there could be more flexibility on the choice of forum.
Best,
2017-09-11 7:19 GMT+02:00 Schweighofer Erich <erich.schweighofer@univie.ac.at <mailto:erich.schweighofer@univie.ac.at>>:
Dear all,
__ __
I would support Beck Burr. It makes good sense to recommand regional arbitration courts that know the ICANN system and are established in jurisdictions with only necessary interference in arbitation (e.g. due process, transparency, rule of law).
__ __
Best,
Erich
__ __
*Von: *Kavouss Arasteh <mailto:kavouss.arasteh@gmail.com> *Gesendet: *Montag, 11. September 2017 07:12 *An: *Burr, Becky <mailto:Becky.Burr@team.neustar>; ws2-jurisdiction <mailto:ws2-jurisdiction@icann.org> *Betreff: *Re: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law
__ __
Dear Beckie Thanks for your views to which I totally disagree as a) thgere is no regional jurisdiction and b) there is no agreed definition of region. It is Strange that such a competent person like you taking about Something which does not exist t and can not exist as region is a term totally subjdective and can in no way be used for jurisdiction Kavouss
On Thu, Sep 7, 2017 at 1:55 PM, Burr, Becky via Ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>> wrote:
FWIW, punitive damages are not usually permitted in contract disputes – I wonder why ICANN includes them at all.
Also, rather than requiring ICANN to agree to submit to the jurisdiction of every country where it has a relationship with a registry or registrar, is it worth considering regional jurisdiction? Contracts with European registries and registrars could specify Swiss or Dutch or some other law, etc.?
*J. Beckwith Burr**** **Neustar, Inc.***/**Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW DC 20006 *Office:***+1.202.533.2932 *Mobile:***+1.202.352.6367____
*Follow Neustar:*LinkedIn*/* Twitter Reduceyour environmental footprint. Print only if necessary. ____
------------------------------------------------------------------------
The information contained in this email message is intended only for the use of the recipient(s) named above and may contain confidential and/or privileged information. If you are not the intended recipient you have received this email message in error and any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately and delete the original message.____
From: <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>" <Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch>> Date: Wednesday, September 6, 2017 at 4:19 PM To: "ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>" <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>> Subject: [EXTERNAL] [Ws2-jurisdiction] issues on applicable law
Dear all,____
__ __
Here are, for your convenience, the two issues I have tried to briefly explain during today’s conference call, for your consideration. ____
__ __
As said, the main thought is to reduce uncertainty, and clarify that the parties to the registry agreements have an effective freedom to choose the applicable law and to apply a principle of subsidiarity that may reduce potential conflicts with the national laws where they are based.____
__ __
==____
__ __
1. _Issue: _The law applicable to the Registry Agreement has been identified as being the main issue: ____
__ __
The Registry Agreement contains no provision relative to the choice of jurisdiction, the applicable law consequently not being defined by the Agreement. ____
This creates great legal uncertainty and a potential issue as regards the jurisdiction given that it would be the prerogative of the arbitrators or the judges having jurisdiction -who could come from a US Court- to determine what law governs the relationship between ICANN and the registry. ____
Pursuant to the current business practice, the applicable law is that of the party that provides the service in question, i.e. ICANN, a priori. A registry should therefore expect the potentially applicable law to be the law of the State of California.____
The applicable law further determines the faculty of ICANN to claim punitive or exemplary damages (i.e. under US law, damages highly surpassing the damage actually suffered, in order to punish a behavior), in the event the registry were to breach the contract in a deliberate and repeated manner (section 5.2 of the Registry Agreement.) This well-established institution of Common Law is non-existent under Swiss law, which follows the principle of compensation (damages are used to repair the damage but cannot enrich the claimant,) and should be considered to be contrary to public order. Were the Swiss law to apply to the Agreement, such damages would not be granted. Following the principles of the institutions typical to the Common Law provided for in the Registry Agreement poses issues of compatibility with other legal orders and suggests that Californian law would -a priori- apply to the Registry Agreement.____
__ __
_Possible solutions:_____
__ __
The applicable law should be determined on the basis of the legitimate expectations which the parties may have in terms of applicable law. It is understandable and appropriate that the fundamental provisions or duties contained in the Registry Agreement should apply equally to all registries around the world and be therefore interpreted in a uniform way. ____
__ __
Beyond a few provisions and duties which are absolutely fundamental, it would be judicious and consistent with a legitimate expectation that the contractual relationship between ICANN and a registry be subject to the national law of the latter. The foregoing is all the more reasonable given that the manager of a generic domain (TLD) is delegated broad powers, as it is within its scope to establish the purpose of the domain, the eligibility, or the terms of the assignment of domain names, not to mention that it has great freedom as to the way in which a domain is actually managed.____
__ __
There already exist special provisions for registries that are IGO/Governmental entities (section 7.16 registry agreement): if international law is at stake, there is a procedure (mediation and arbitration ex 5.2.) to resolve disputes between the registry and ICANN – this special provision could be extended:____
- To other registries that are not IGOs/Public authorities____
- To cover not only “international law obligations” but also national law obligations____
__ __
*___ ___*
2. _Issue: __arbitration clause_______
___ ___
With regard to territorial jurisdiction, the arbitration clause (section 5.2 of the Registry Agreement entitled "Arbitration text for intergovernmental organizations or governmental entities") has allowed the ".swiss" registry to submit itself to the arbitration of the International Court of Arbitration of the International Chamber of Commerce in Geneva, Switzerland. This provision also provides for some flexibilities restricted to IGOs or governmental entities as regards the competent court.____
__ __
However these flexibilities are not open to all registry operators. ____
__ __
_Possible solutions:_____
__ __
It would be wise in our opinion: ____
- to also allow private registries to decide on the choice of their arbitration/competent court; ____
- to broaden the possibilities of choice for all registries (by principle, to choose an arbitration recognized in each country.) ____
__ __
__ __
==____
__ __
Hope this may be considered.____
__ __
Regards____
__ __
Jorge ____
____
__ __
__ __
__ __
*Jorge Cancio ____*
*__ __*
International Relations____
Federal Department of the Environment, Transport, Energy and Communications DETEC ____
Federal Office of Communications OFCOM____
Zukunftstrasse 44, CH 2501 Biel ____
Tel. +41 58 460 54 58 (direct) ____
Tel. +41 32 327 55 11 (office) ____
Fax +41 58 460 54 66 ____
mailto: jorge.cancio@bakom.admin.ch <mailto:mailto:%20jorge.cancio@bakom.admin.ch>____
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All This is a fascinating discussion at any number of levels. I begin with the proposition that in general the parties to a contract are free to choose the manner and forum within which to resolve any disputes that might arise. They may choose arbitration or litigation. They may specify a venue and they may specify a choice of law. I have even seen cases in which they pre-specify the arbitrator by name. We might say that ICANN's choice not to choose (and the RAs agreement to that) is just the nature of contracts. That, however, would be incomplete since, in this instance, ICANN operates as a monopoly (technically a monopsony, but that's not really relevant) and thus, RAs have essentially no negotiating power. We may infer from ICANNs choice that it views the current ambiguous state of affairs as to its benefit. But ambiguity and uncertainty are the enemy of accountability and thus, I support the idea, generally, of pushing ICANN to specify how and under what law disputes with it will be resolved. That then leads us to the hard question -- which law? We cannot reasonably ask ICANN to assume potential liability under 190+ different legal systems for contractual disputes. And we cannot, from an accountability perspective, want a world in which there are inconsistent results and how a contract provision is enforced depends on whether the suit is brought in Europe or in Asia. That type of uncertainty is also the enemy of accountability. Thus, I disagree with the submission that the presumption should be that the law of the registry apply to the agreement. That way lies chaos. But we also cannot expect, at least not in this forum, to agree on which law should apply. It strikes me that the reasonable compromise answer is for this subgroup and CCWG to recommend that ICANN develop a menu of options for choice of law and choice of arbiter. With a broad enough group (of say 4-6) we might minimize divergence while allowing registries some choice in how their contracts will be judged. 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: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 -----Original Message----- From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Nigel Roberts Sent: Monday, September 11, 2017 6:19 AM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law I see no reason whatsoever to limit the forum. Admiralty/maritime cases have a shopping list of jurisdictions that are well-versed in marine cases which are (I think) New York London Cairo and maybe a couple of others. And the parties can choose. As ICANN is better placed to handle other fora, the other party should have a free choice. On 11/09/17 09:46, Raphaël BEAUREGARD-LACROIX wrote:
Kavouss,
I believe that was Becky was suggesting was an adaptation of applicable law according to pre-defined regions in the worldYou
For example, all registries in Europe could enter into a RA whose governing law would be Dutch law while North American registries would have US law as governing law, and then the community could provide input on which governing law they would want to have on a regional basis.
The same could go with courts, as I and Eric mentioned as well.
Obviously defining regions is somewhat arbitrary, but the community could also provide input on that.
I still think that the RAs are drafted accoding to an American style and would be better served by California law governing, while there could be more flexibility on the choice of forum.
Best,
2017-09-11 7:19 GMT+02:00 Schweighofer Erich <erich.schweighofer@univie.ac.at <mailto:erich.schweighofer@univie.ac.at>>:
Dear all,
__ __
I would support Beck Burr. It makes good sense to recommand regional arbitration courts that know the ICANN system and are established in jurisdictions with only necessary interference in arbitation (e.g. due process, transparency, rule of law).
__ __
Best,
Erich
__ __
*Von: *Kavouss Arasteh <mailto:kavouss.arasteh@gmail.com> *Gesendet: *Montag, 11. September 2017 07:12 *An: *Burr, Becky <mailto:Becky.Burr@team.neustar>; ws2-jurisdiction <mailto:ws2-jurisdiction@icann.org> *Betreff: *Re: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law
__ __
Dear Beckie Thanks for your views to which I totally disagree as a) thgere is no regional jurisdiction and b) there is no agreed definition of region. It is Strange that such a competent person like you taking about Something which does not exist t and can not exist as region is a term totally subjdective and can in no way be used for jurisdiction Kavouss
On Thu, Sep 7, 2017 at 1:55 PM, Burr, Becky via Ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>> wrote:
FWIW, punitive damages are not usually permitted in contract disputes I wonder why ICANN includes them at all.
Also, rather than requiring ICANN to agree to submit to the jurisdiction of every country where it has a relationship with a registry or registrar, is it worth considering regional jurisdiction? Contracts with European registries and registrars could specify Swiss or Dutch or some other law, etc.?
*J. Beckwith Burr**** **Neustar, Inc.***/**Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW DC 20006 *Office:***+1.202.533.2932 *Mobile:***+1.202.352.6367____
*Follow Neustar:*LinkedIn*/* Twitter Reduceyour environmental footprint. Print only if necessary. ____
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From: <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>" <Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch>> Date: Wednesday, September 6, 2017 at 4:19 PM To: "ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>" <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>> Subject: [EXTERNAL] [Ws2-jurisdiction] issues on applicable law
Dear all,____
__ __
Here are, for your convenience, the two issues I have tried to briefly explain during todays conference call, for your consideration. ____
__ __
As said, the main thought is to reduce uncertainty, and clarify that the parties to the registry agreements have an effective freedom to choose the applicable law and to apply a principle of subsidiarity that may reduce potential conflicts with the national laws where they are based.____
__ __
==____
__ __
1. _Issue: _The law applicable to the Registry Agreement has been identified as being the main issue: ____
__ __
The Registry Agreement contains no provision relative to the choice of jurisdiction, the applicable law consequently not being defined by the Agreement. ____
This creates great legal uncertainty and a potential issue as regards the jurisdiction given that it would be the prerogative of the arbitrators or the judges having jurisdiction -who could come from a US Court- to determine what law governs the relationship between ICANN and the registry. ____
Pursuant to the current business practice, the applicable law is that of the party that provides the service in question, i.e. ICANN, a priori. A registry should therefore expect the potentially applicable law to be the law of the State of California.____
The applicable law further determines the faculty of ICANN to claim punitive or exemplary damages (i.e. under US law, damages highly surpassing the damage actually suffered, in order to punish a behavior), in the event the registry were to breach the contract in a deliberate and repeated manner (section 5.2 of the Registry Agreement.) This well-established institution of Common Law is non-existent under Swiss law, which follows the principle of compensation (damages are used to repair the damage but cannot enrich the claimant,) and should be considered to be contrary to public order. Were the Swiss law to apply to the Agreement, such damages would not be granted. Following the principles of the institutions typical to the Common Law provided for in the Registry Agreement poses issues of compatibility with other legal orders and suggests that Californian law would -a priori- apply to the Registry Agreement.____
__ __
_Possible solutions:_____
__ __
The applicable law should be determined on the basis of the legitimate expectations which the parties may have in terms of applicable law. It is understandable and appropriate that the fundamental provisions or duties contained in the Registry Agreement should apply equally to all registries around the world and be therefore interpreted in a uniform way. ____
__ __
Beyond a few provisions and duties which are absolutely fundamental, it would be judicious and consistent with a legitimate expectation that the contractual relationship between ICANN and a registry be subject to the national law of the latter. The foregoing is all the more reasonable given that the manager of a generic domain (TLD) is delegated broad powers, as it is within its scope to establish the purpose of the domain, the eligibility, or the terms of the assignment of domain names, not to mention that it has great freedom as to the way in which a domain is actually managed.____
__ __
There already exist special provisions for registries that are IGO/Governmental entities (section 7.16 registry agreement): if international law is at stake, there is a procedure (mediation and arbitration ex 5.2.) to resolve disputes between the registry and ICANN this special provision could be extended:____
- To other registries that are not IGOs/Public authorities____
- To cover not only international law obligations but also national law obligations____
__ __
*___ ___*
2. _Issue: __arbitration clause_______
___ ___
With regard to territorial jurisdiction, the arbitration clause (section 5.2 of the Registry Agreement entitled "Arbitration text for intergovernmental organizations or governmental entities") has allowed the ".swiss" registry to submit itself to the arbitration of the International Court of Arbitration of the International Chamber of Commerce in Geneva, Switzerland. This provision also provides for some flexibilities restricted to IGOs or governmental entities as regards the competent court.____
__ __
However these flexibilities are not open to all registry operators. ____
__ __
_Possible solutions:_____
__ __
It would be wise in our opinion: ____
- to also allow private registries to decide on the choice of their arbitration/competent court; ____
- to broaden the possibilities of choice for all registries (by principle, to choose an arbitration recognized in each country.) ____
__ __
__ __
==____
__ __
Hope this may be considered.____
__ __
Regards____
__ __
Jorge ____
____
__ __
__ __
__ __
*Jorge Cancio ____*
*__ __*
International Relations____
Federal Department of the Environment, Transport, Energy and Communications DETEC ____
Federal Office of Communications OFCOM____
Zukunftstrasse 44, CH 2501 Biel ____
Tel. +41 58 460 54 58 (direct) ____
Tel. +41 32 327 55 11 (office) ____
Fax +41 58 460 54 66 ____
mailto: jorge.cancio@bakom.admin.ch <mailto:mailto:%20jorge.cancio@bakom.admin.ch>____
www.bakom.admin.ch
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Dear Paul, Thank you for your contribution. I am myself tempted by the "menu" solution, however I am still bugged by the idea that the wording of the contract and its drafting style might prove difficult to adapt to other legal systems. We (i.e. ICANN) can say that the contract terms in the RA are "clear and objective," but in real life much hinges on the interpretation and while "American style" contracts subject to various governing laws having nothing to do with the US is rather common, I really do not know how an arbitrator would read the RA with continental European lenses, for example. Obviously an eventual adaptation towards 4 or 5 governing laws is still a better idea than 190+ (or even more counting federated entities!) And the fact that we might not agree on a single given governing law should probably be taken into account when considering solutions indeed... Dear Kavouss, Do you disagree with the issue or with the solution? And more precisely, do you disagree with *both *the idea that the governing law may be adapted on a regional basis *and *the idea that various fora may be made available on a regional basis as well? 2017-09-11 20:50 GMT+02:00 Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com>:
All
This is a fascinating discussion at any number of levels.
I begin with the proposition that in general the parties to a contract are free to choose the manner and forum within which to resolve any disputes that might arise. They may choose arbitration or litigation. They may specify a venue and they may specify a choice of law. I have even seen cases in which they pre-specify the arbitrator by name. We might say that ICANN's choice not to choose (and the RAs agreement to that) is just the nature of contracts.
That, however, would be incomplete since, in this instance, ICANN operates as a monopoly (technically a monopsony, but that's not really relevant) and thus, RAs have essentially no negotiating power. We may infer from ICANNs choice that it views the current ambiguous state of affairs as to its benefit. But ambiguity and uncertainty are the enemy of accountability and thus, I support the idea, generally, of pushing ICANN to specify how and under what law disputes with it will be resolved.
That then leads us to the hard question -- which law? We cannot reasonably ask ICANN to assume potential liability under 190+ different legal systems for contractual disputes. And we cannot, from an accountability perspective, want a world in which there are inconsistent results and how a contract provision is enforced depends on whether the suit is brought in Europe or in Asia. That type of uncertainty is also the enemy of accountability. Thus, I disagree with the submission that the presumption should be that the law of the registry apply to the agreement. That way lies chaos.
But we also cannot expect, at least not in this forum, to agree on which law should apply. It strikes me that the reasonable compromise answer is for this subgroup and CCWG to recommend that ICANN develop a menu of options for choice of law and choice of arbiter. With a broad enough group (of say 4-6) we might minimize divergence while allowing registries some choice in how their contracts will be judged.
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: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
-----Original Message----- From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Nigel Roberts Sent: Monday, September 11, 2017 6:19 AM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law
I see no reason whatsoever to limit the forum. Admiralty/maritime cases have a shopping list of jurisdictions that are well-versed in marine cases which are (I think)
New York London Cairo
and maybe a couple of others.
And the parties can choose.
As ICANN is better placed to handle other fora, the other party should have a free choice.
On 11/09/17 09:46, Raphaël BEAUREGARD-LACROIX wrote:
Kavouss,
I believe that was Becky was suggesting was an adaptation of applicable law according to pre-defined regions in the worldYou
For example, all registries in Europe could enter into a RA whose governing law would be Dutch law while North American registries would have US law as governing law, and then the community could provide input on which governing law they would want to have on a regional basis.
The same could go with courts, as I and Eric mentioned as well.
Obviously defining regions is somewhat arbitrary, but the community could also provide input on that.
I still think that the RAs are drafted accoding to an American style and would be better served by California law governing, while there could be more flexibility on the choice of forum.
Best,
2017-09-11 7:19 GMT+02:00 Schweighofer Erich <erich.schweighofer@univie.ac.at <mailto:erich.schweighofer@univie.ac.at>>:
Dear all,
__ __
I would support Beck Burr. It makes good sense to recommand regional arbitration courts that know the ICANN system and are established in jurisdictions with only necessary interference in arbitation (e.g. due process, transparency, rule of law).
__ __
Best,
Erich
__ __
*Von: *Kavouss Arasteh <mailto:kavouss.arasteh@gmail.com> *Gesendet: *Montag, 11. September 2017 07:12 *An: *Burr, Becky <mailto:Becky.Burr@team.neustar>; ws2-jurisdiction <mailto:ws2-jurisdiction@icann.org> *Betreff: *Re: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law
__ __
Dear Beckie Thanks for your views to which I totally disagree as a) thgere is no regional jurisdiction and b) there is no agreed definition of region. It is Strange that such a competent person like you taking about Something which does not exist t and can not exist as region is a term totally subjdective and can in no way be used for jurisdiction Kavouss
On Thu, Sep 7, 2017 at 1:55 PM, Burr, Becky via Ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>> wrote:
FWIW, punitive damages are not usually permitted in contract disputes – I wonder why ICANN includes them at all.
Also, rather than requiring ICANN to agree to submit to the jurisdiction of every country where it has a relationship with a registry or registrar, is it worth considering regional jurisdiction? Contracts with European registries and registrars could specify Swiss or Dutch or some other law, etc.?
*J. Beckwith Burr**** **Neustar, Inc.***/**Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW DC 20006 *Office:***+1.202.533.2932 *Mobile:***+1.202.352.6367____
*Follow Neustar:*LinkedIn*/* Twitter Reduceyour environmental footprint. Print only if necessary. ____
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The information contained in this email message is intended only for the use of the recipient(s) named above and may contain confidential and/or privileged information. If you are not the intended recipient you have received this email message in error and any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately and delete the original message.____
From: <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>" <Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch
Date: Wednesday, September 6, 2017 at 4:19 PM To: "ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>" <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>> Subject: [EXTERNAL] [Ws2-jurisdiction] issues on applicable law
Dear all,____
__ __
Here are, for your convenience, the two issues I have tried to briefly explain during today’s conference call, for your consideration. ____
__ __
As said, the main thought is to reduce uncertainty, and clarify that the parties to the registry agreements have an effective freedom to choose the applicable law and to apply a principle of subsidiarity that may reduce potential conflicts with the national laws where they are based.____
__ __
==____
__ __
1. _Issue: _The law applicable to the Registry Agreement has been identified as being the main issue: ____
__ __
The Registry Agreement contains no provision relative to the choice of jurisdiction, the applicable law consequently not being defined by the Agreement. ____
This creates great legal uncertainty and a potential issue as regards the jurisdiction given that it would be the prerogative of the arbitrators or the judges having jurisdiction -who could come from a US Court- to determine what law governs the relationship between ICANN and the registry. ____
Pursuant to the current business practice, the applicable law is that of the party that provides the service in question, i.e. ICANN, a priori. A registry should therefore expect the potentially applicable law to be the law of the State of California.____
The applicable law further determines the faculty of ICANN to claim punitive or exemplary damages (i.e. under US law, damages highly surpassing the damage actually suffered, in order to punish a behavior), in the event the registry were to breach the contract in a deliberate and repeated manner (section 5.2 of the Registry Agreement.) This well-established institution of Common Law is non-existent under Swiss law, which follows the principle of compensation (damages are used to repair the damage but cannot enrich the claimant,) and should be considered to be contrary to public order. Were the Swiss law to apply to the Agreement, such damages would not be granted. Following the principles of the institutions typical to the Common Law provided for in the Registry Agreement poses issues of compatibility with other legal orders and suggests that Californian law would -a priori- apply to the Registry Agreement.____
__ __
_Possible solutions:_____
__ __
The applicable law should be determined on the basis of the legitimate expectations which the parties may have in terms of applicable law. It is understandable and appropriate that the fundamental provisions or duties contained in the Registry Agreement should apply equally to all registries around the world and be therefore interpreted in a uniform way. ____
__ __
Beyond a few provisions and duties which are absolutely fundamental, it would be judicious and consistent with a legitimate expectation that the contractual relationship between ICANN and a registry be subject to the national law of the latter. The foregoing is all the more reasonable given that the manager of a generic domain (TLD) is delegated broad powers, as it is within its scope to establish the purpose of the domain, the eligibility, or the terms of the assignment of domain names, not to mention that it has great freedom as to the way in which a domain is actually managed.____
__ __
There already exist special provisions for registries that are IGO/Governmental entities (section 7.16 registry agreement): if international law is at stake, there is a procedure (mediation and arbitration ex 5.2.) to resolve disputes between the registry and ICANN – this special provision could be
extended:____
- To other registries that are not IGOs/Public authorities____
- To cover not only “international law obligations” but also national law obligations____
__ __
*___ ___*
2. _Issue: __arbitration clause_______
___ ___
With regard to territorial jurisdiction, the arbitration clause (section 5.2 of the Registry Agreement entitled "Arbitration text for intergovernmental organizations or governmental entities") has allowed the ".swiss" registry to submit itself to the arbitration of the International Court of Arbitration of the International Chamber of Commerce in Geneva, Switzerland. This provision also provides for some flexibilities restricted to IGOs or governmental entities as regards the competent court.____
__ __
However these flexibilities are not open to all registry operators. ____
__ __
_Possible solutions:_____
__ __
It would be wise in our opinion: ____
- to also allow private registries to decide on the choice of their arbitration/competent court; ____
- to broaden the possibilities of choice for all registries (by principle, to choose an arbitration recognized in each country.) ____
__ __
__ __
==____
__ __
Hope this may be considered.____
__ __
Regards____
__ __
Jorge ____
____
__ __
__ __
__ __
*Jorge Cancio ____*
*__ __*
International Relations____
Federal Department of the Environment, Transport, Energy and Communications DETEC ____
Federal Office of Communications OFCOM____
Zukunftstrasse 44, CH 2501 Biel ____
Tel. +41 58 460 54 58 (direct) ____
Tel. +41 32 327 55 11 (office) ____
Fax +41 58 460 54 66 ____
mailto: jorge.cancio@bakom.admin.ch <mailto:mailto:%20jorge.cancio@bakom.admin.ch>____
www.bakom.admin.ch
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Raphael Could you please elaborate on the idea that a European arbiter or court might not give full effect to a choice of law clause? From my American lens, that is an unusual concept. Is it really the case that in a dispute between two corporations (i.e. the contract was at arms length between equal bargaining entities) a French (say) arbiter would disregard a clause saying “German law applies to the interpretation and resolution of disputes under this contract”? Or am I missing something and misunderstanding you? Regards 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: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: Raphaël BEAUREGARD-LACROIX [mailto:raphael.beauregardlacroix@sciencespo.fr] Sent: Monday, September 11, 2017 3:06 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> Cc: Nigel Roberts <nigel@channelisles.net>; ws2-jurisdiction <ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law Dear Paul, Thank you for your contribution. I am myself tempted by the "menu" solution, however I am still bugged by the idea that the wording of the contract and its drafting style might prove difficult to adapt to other legal systems. We (i.e. ICANN) can say that the contract terms in the RA are "clear and objective," but in real life much hinges on the interpretation and while "American style" contracts subject to various governing laws having nothing to do with the US is rather common, I really do not know how an arbitrator would read the RA with continental European lenses, for example. Obviously an eventual adaptation towards 4 or 5 governing laws is still a better idea than 190+ (or even more counting federated entities!) And the fact that we might not agree on a single given governing law should probably be taken into account when considering solutions indeed... Dear Kavouss, Do you disagree with the issue or with the solution? And more precisely, do you disagree with both the idea that the governing law may be adapted on a regional basis and the idea that various fora may be made available on a regional basis as well? 2017-09-11 20:50 GMT+02:00 Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> >: All This is a fascinating discussion at any number of levels. I begin with the proposition that in general the parties to a contract are free to choose the manner and forum within which to resolve any disputes that might arise. They may choose arbitration or litigation. They may specify a venue and they may specify a choice of law. I have even seen cases in which they pre-specify the arbitrator by name. We might say that ICANN's choice not to choose (and the RAs agreement to that) is just the nature of contracts. That, however, would be incomplete since, in this instance, ICANN operates as a monopoly (technically a monopsony, but that's not really relevant) and thus, RAs have essentially no negotiating power. We may infer from ICANNs choice that it views the current ambiguous state of affairs as to its benefit. But ambiguity and uncertainty are the enemy of accountability and thus, I support the idea, generally, of pushing ICANN to specify how and under what law disputes with it will be resolved. That then leads us to the hard question -- which law? We cannot reasonably ask ICANN to assume potential liability under 190+ different legal systems for contractual disputes. And we cannot, from an accountability perspective, want a world in which there are inconsistent results and how a contract provision is enforced depends on whether the suit is brought in Europe or in Asia. That type of uncertainty is also the enemy of accountability. Thus, I disagree with the submission that the presumption should be that the law of the registry apply to the agreement. That way lies chaos. But we also cannot expect, at least not in this forum, to agree on which law should apply. It strikes me that the reasonable compromise answer is for this subgroup and CCWG to recommend that ICANN develop a menu of options for choice of law and choice of arbiter. With a broad enough group (of say 4-6) we might minimize divergence while allowing registries some choice in how their contracts will be judged. 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: https://keys.mailvelope.com/pks/lookup?op=get <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> &search=0x9A830097CA066684 -----Original Message----- 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 Nigel Roberts Sent: Monday, September 11, 2017 6:19 AM To: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law I see no reason whatsoever to limit the forum. Admiralty/maritime cases have a shopping list of jurisdictions that are well-versed in marine cases which are (I think) New York London Cairo and maybe a couple of others. And the parties can choose. As ICANN is better placed to handle other fora, the other party should have a free choice. On 11/09/17 09:46, Raphaël BEAUREGARD-LACROIX wrote:
Kavouss,
I believe that was Becky was suggesting was an adaptation of applicable law according to pre-defined regions in the worldYou
For example, all registries in Europe could enter into a RA whose governing law would be Dutch law while North American registries would have US law as governing law, and then the community could provide input on which governing law they would want to have on a regional basis.
The same could go with courts, as I and Eric mentioned as well.
Obviously defining regions is somewhat arbitrary, but the community could also provide input on that.
I still think that the RAs are drafted accoding to an American style and would be better served by California law governing, while there could be more flexibility on the choice of forum.
Best,
2017-09-11 7:19 GMT+02:00 Schweighofer Erich <erich.schweighofer@univie.ac.at <mailto:erich.schweighofer@univie.ac.at> <mailto:erich.schweighofer@univie.ac.at <mailto:erich.schweighofer@univie.ac.at> >>:
Dear all,
__ __
I would support Beck Burr. It makes good sense to recommand regional arbitration courts that know the ICANN system and are established in jurisdictions with only necessary interference in arbitation (e.g. due process, transparency, rule of law).
__ __
Best,
Erich
__ __
*Von: *Kavouss Arasteh <mailto:kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com> > *Gesendet: *Montag, 11. September 2017 07:12 *An: *Burr, Becky <mailto:Becky.Burr@team.neustar <mailto:Becky.Burr@team.neustar> >; ws2-jurisdiction <mailto:ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> > *Betreff: *Re: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law
__ __
Dear Beckie Thanks for your views to which I totally disagree as a) thgere is no regional jurisdiction and b) there is no agreed definition of region. It is Strange that such a competent person like you taking about Something which does not exist t and can not exist as region is a term totally subjdective and can in no way be used for jurisdiction Kavouss
On Thu, Sep 7, 2017 at 1:55 PM, Burr, Becky via Ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> <mailto:ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> >> wrote:
FWIW, punitive damages are not usually permitted in contract disputes – I wonder why ICANN includes them at all.
Also, rather than requiring ICANN to agree to submit to the jurisdiction of every country where it has a relationship with a registry or registrar, is it worth considering regional jurisdiction? Contracts with European registries and registrars could specify Swiss or Dutch or some other law, etc.?
*J. Beckwith Burr**** **Neustar, Inc.***/**Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW DC 20006 *Office:***+1.202.533.2932 *Mobile:***+1.202.352.6367____
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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> <mailto:Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> >" <Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> <mailto:Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> >> Date: Wednesday, September 6, 2017 at 4:19 PM To: "ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> <mailto:ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> >" <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> <mailto:ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> >> Subject: [EXTERNAL] [Ws2-jurisdiction] issues on applicable law
Dear all,____
__ __
Here are, for your convenience, the two issues I have tried to briefly explain during today’s conference call, for your consideration. ____
__ __
As said, the main thought is to reduce uncertainty, and clarify that the parties to the registry agreements have an effective freedom to choose the applicable law and to apply a principle of subsidiarity that may reduce potential conflicts with the national laws where they are based.____
__ __
==____
__ __
1. _Issue: _The law applicable to the Registry Agreement has been identified as being the main issue: ____
__ __
The Registry Agreement contains no provision relative to the choice of jurisdiction, the applicable law consequently not being defined by the Agreement. ____
This creates great legal uncertainty and a potential issue as regards the jurisdiction given that it would be the prerogative of the arbitrators or the judges having jurisdiction -who could come from a US Court- to determine what law governs the relationship between ICANN and the registry. ____
Pursuant to the current business practice, the applicable law is that of the party that provides the service in question, i.e. ICANN, a priori. A registry should therefore expect the potentially applicable law to be the law of the State of California.____
The applicable law further determines the faculty of ICANN to claim punitive or exemplary damages (i.e. under US law, damages highly surpassing the damage actually suffered, in order to punish a behavior), in the event the registry were to breach the contract in a deliberate and repeated manner (section 5.2 of the Registry Agreement.) This well-established institution of Common Law is non-existent under Swiss law, which follows the principle of compensation (damages are used to repair the damage but cannot enrich the claimant,) and should be considered to be contrary to public order. Were the Swiss law to apply to the Agreement, such damages would not be granted. Following the principles of the institutions typical to the Common Law provided for in the Registry Agreement poses issues of compatibility with other legal orders and suggests that Californian law would -a priori- apply to the Registry Agreement.____
__ __
_Possible solutions:_____
__ __
The applicable law should be determined on the basis of the legitimate expectations which the parties may have in terms of applicable law. It is understandable and appropriate that the fundamental provisions or duties contained in the Registry Agreement should apply equally to all registries around the world and be therefore interpreted in a uniform way. ____
__ __
Beyond a few provisions and duties which are absolutely fundamental, it would be judicious and consistent with a legitimate expectation that the contractual relationship between ICANN and a registry be subject to the national law of the latter. The foregoing is all the more reasonable given that the manager of a generic domain (TLD) is delegated broad powers, as it is within its scope to establish the purpose of the domain, the eligibility, or the terms of the assignment of domain names, not to mention that it has great freedom as to the way in which a domain is actually managed.____
__ __
There already exist special provisions for registries that are IGO/Governmental entities (section 7.16 registry agreement): if international law is at stake, there is a procedure (mediation and arbitration ex 5.2.) to resolve disputes between the registry and ICANN – this special provision could be extended:____
- To other registries that are not IGOs/Public authorities____
- To cover not only “international law obligations” but also national law obligations____
__ __
*___ ___*
2. _Issue: __arbitration clause_______
___ ___
With regard to territorial jurisdiction, the arbitration clause (section 5.2 of the Registry Agreement entitled "Arbitration text for intergovernmental organizations or governmental entities") has allowed the ".swiss" registry to submit itself to the arbitration of the International Court of Arbitration of the International Chamber of Commerce in Geneva, Switzerland. This provision also provides for some flexibilities restricted to IGOs or governmental entities as regards the competent court.____
__ __
However these flexibilities are not open to all registry operators. ____
__ __
_Possible solutions:_____
__ __
It would be wise in our opinion: ____
- to also allow private registries to decide on the choice of their arbitration/competent court; ____
- to broaden the possibilities of choice for all registries (by principle, to choose an arbitration recognized in each country.) ____
__ __
__ __
==____
__ __
Hope this may be considered.____
__ __
Regards____
__ __
Jorge ____
____
__ __
__ __
__ __
*Jorge Cancio ____*
*__ __*
International Relations____
Federal Department of the Environment, Transport, Energy and Communications DETEC ____
Federal Office of Communications OFCOM____
Zukunftstrasse 44, CH 2501 Biel ____
Tel. +41 58 460 54 58 (direct) ____
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_______________________________________________ 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 -- Raphaël Beauregard-Lacroix <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> LinkedIn - <https://twitter.com/rbl0112> @rbl0012 - M: +33 7 86 39 18 15
Well put -- especially " ambiguity and uncertainty are the enemy of accountability". 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 -----Original Message----- From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Paul Rosenzweig Sent: Monday, September 11, 2017 2:51 PM To: 'Nigel Roberts'; ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law All This is a fascinating discussion at any number of levels. I begin with the proposition that in general the parties to a contract are free to choose the manner and forum within which to resolve any disputes that might arise. They may choose arbitration or litigation. They may specify a venue and they may specify a choice of law. I have even seen cases in which they pre-specify the arbitrator by name. We might say that ICANN's choice not to choose (and the RAs agreement to that) is just the nature of contracts. That, however, would be incomplete since, in this instance, ICANN operates as a monopoly (technically a monopsony, but that's not really relevant) and thus, RAs have essentially no negotiating power. We may infer from ICANNs choice that it views the current ambiguous state of affairs as to its benefit. But ambiguity and uncertainty are the enemy of accountability and thus, I support the idea, generally, of pushing ICANN to specify how and under what law disputes with it will be resolved. That then leads us to the hard question -- which law? We cannot reasonably ask ICANN to assume potential liability under 190+ different legal systems for contractual disputes. And we cannot, from an accountability perspective, want a world in which there are inconsistent results and how a contract provision is enforced depends on whether the suit is brought in Europe or in Asia. That type of uncertainty is also the enemy of accountability. Thus, I disagree with the submission that the presumption should be that the law of the registry apply to the agreement. That way lies chaos. But we also cannot expect, at least not in this forum, to agree on which law should apply. It strikes me that the reasonable compromise answer is for this subgroup and CCWG to recommend that ICANN develop a menu of options for choice of law and choice of arbiter. With a broad enough group (of say 4-6) we might minimize divergence while allowing registries some choice in how their contracts will be judged. 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: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 -----Original Message----- From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Nigel Roberts Sent: Monday, September 11, 2017 6:19 AM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law I see no reason whatsoever to limit the forum. Admiralty/maritime cases have a shopping list of jurisdictions that are well-versed in marine cases which are (I think) New York London Cairo and maybe a couple of others. And the parties can choose. As ICANN is better placed to handle other fora, the other party should have a free choice. On 11/09/17 09:46, Raphaël BEAUREGARD-LACROIX wrote:
Kavouss,
I believe that was Becky was suggesting was an adaptation of applicable law according to pre-defined regions in the worldYou
For example, all registries in Europe could enter into a RA whose governing law would be Dutch law while North American registries would have US law as governing law, and then the community could provide input on which governing law they would want to have on a regional basis.
The same could go with courts, as I and Eric mentioned as well.
Obviously defining regions is somewhat arbitrary, but the community could also provide input on that.
I still think that the RAs are drafted accoding to an American style and would be better served by California law governing, while there could be more flexibility on the choice of forum.
Best,
2017-09-11 7:19 GMT+02:00 Schweighofer Erich <erich.schweighofer@univie.ac.at <mailto:erich.schweighofer@univie.ac.at>>:
Dear all,
__ __
I would support Beck Burr. It makes good sense to recommand regional arbitration courts that know the ICANN system and are established in jurisdictions with only necessary interference in arbitation (e.g. due process, transparency, rule of law).
__ __
Best,
Erich
__ __
*Von: *Kavouss Arasteh <mailto:kavouss.arasteh@gmail.com> *Gesendet: *Montag, 11. September 2017 07:12 *An: *Burr, Becky <mailto:Becky.Burr@team.neustar>; ws2-jurisdiction <mailto:ws2-jurisdiction@icann.org> *Betreff: *Re: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law
__ __
Dear Beckie Thanks for your views to which I totally disagree as a) thgere is no regional jurisdiction and b) there is no agreed definition of region. It is Strange that such a competent person like you taking about Something which does not exist t and can not exist as region is a term totally subjdective and can in no way be used for jurisdiction Kavouss
On Thu, Sep 7, 2017 at 1:55 PM, Burr, Becky via Ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>> wrote:
FWIW, punitive damages are not usually permitted in contract disputes - I wonder why ICANN includes them at all.
Also, rather than requiring ICANN to agree to submit to the jurisdiction of every country where it has a relationship with a registry or registrar, is it worth considering regional jurisdiction? Contracts with European registries and registrars could specify Swiss or Dutch or some other law, etc.?
*J. Beckwith Burr**** **Neustar, Inc.***/**Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW DC 20006 *Office:***+1.202.533.2932 *Mobile:***+1.202.352.6367____
*Follow Neustar:*LinkedIn*/* Twitter Reduceyour environmental footprint. Print only if necessary. ____
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The information contained in this email message is intended only for the use of the recipient(s) named above and may contain confidential and/or privileged information. If you are not the intended recipient you have received this email message in error and any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately and delete the original message.____
From: <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>" <Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch>> Date: Wednesday, September 6, 2017 at 4:19 PM To: "ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>" <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>> Subject: [EXTERNAL] [Ws2-jurisdiction] issues on applicable law
Dear all,____
__ __
Here are, for your convenience, the two issues I have tried to briefly explain during today's conference call, for your consideration. ____
__ __
As said, the main thought is to reduce uncertainty, and clarify that the parties to the registry agreements have an effective freedom to choose the applicable law and to apply a principle of subsidiarity that may reduce potential conflicts with the national laws where they are based.____
__ __
==____
__ __
1. _Issue: _The law applicable to the Registry Agreement has been identified as being the main issue: ____
__ __
The Registry Agreement contains no provision relative to the choice of jurisdiction, the applicable law consequently not being defined by the Agreement. ____
This creates great legal uncertainty and a potential issue as regards the jurisdiction given that it would be the prerogative of the arbitrators or the judges having jurisdiction -who could come from a US Court- to determine what law governs the relationship between ICANN and the registry. ____
Pursuant to the current business practice, the applicable law is that of the party that provides the service in question, i.e. ICANN, a priori. A registry should therefore expect the potentially applicable law to be the law of the State of California.____
The applicable law further determines the faculty of ICANN to claim punitive or exemplary damages (i.e. under US law, damages highly surpassing the damage actually suffered, in order to punish a behavior), in the event the registry were to breach the contract in a deliberate and repeated manner (section 5.2 of the Registry Agreement.) This well-established institution of Common Law is non-existent under Swiss law, which follows the principle of compensation (damages are used to repair the damage but cannot enrich the claimant,) and should be considered to be contrary to public order. Were the Swiss law to apply to the Agreement, such damages would not be granted. Following the principles of the institutions typical to the Common Law provided for in the Registry Agreement poses issues of compatibility with other legal orders and suggests that Californian law would -a priori- apply to the Registry Agreement.____
__ __
_Possible solutions:_____
__ __
The applicable law should be determined on the basis of the legitimate expectations which the parties may have in terms of applicable law. It is understandable and appropriate that the fundamental provisions or duties contained in the Registry Agreement should apply equally to all registries around the world and be therefore interpreted in a uniform way. ____
__ __
Beyond a few provisions and duties which are absolutely fundamental, it would be judicious and consistent with a legitimate expectation that the contractual relationship between ICANN and a registry be subject to the national law of the latter. The foregoing is all the more reasonable given that the manager of a generic domain (TLD) is delegated broad powers, as it is within its scope to establish the purpose of the domain, the eligibility, or the terms of the assignment of domain names, not to mention that it has great freedom as to the way in which a domain is actually managed.____
__ __
There already exist special provisions for registries that are IGO/Governmental entities (section 7.16 registry agreement): if international law is at stake, there is a procedure (mediation and arbitration ex 5.2.) to resolve disputes between the registry and ICANN - this special provision could be extended:____
- To other registries that are not IGOs/Public authorities____
- To cover not only "international law obligations" but also national law obligations____
__ __
*___ ___*
2. _Issue: __arbitration clause_______
___ ___
With regard to territorial jurisdiction, the arbitration clause (section 5.2 of the Registry Agreement entitled "Arbitration text for intergovernmental organizations or governmental entities") has allowed the ".swiss" registry to submit itself to the arbitration of the International Court of Arbitration of the International Chamber of Commerce in Geneva, Switzerland. This provision also provides for some flexibilities restricted to IGOs or governmental entities as regards the competent court.____
__ __
However these flexibilities are not open to all registry operators. ____
__ __
_Possible solutions:_____
__ __
It would be wise in our opinion: ____
- to also allow private registries to decide on the choice of their arbitration/competent court; ____
- to broaden the possibilities of choice for all registries (by principle, to choose an arbitration recognized in each country.) ____
__ __
__ __
==____
__ __
Hope this may be considered.____
__ __
Regards____
__ __
Jorge ____
____
__ __
__ __
__ __
*Jorge Cancio ____*
*__ __*
International Relations____
Federal Department of the Environment, Transport, Energy and Communications DETEC ____
Federal Office of Communications OFCOM____
Zukunftstrasse 44, CH 2501 Biel ____
Tel. +41 58 460 54 58 (direct) ____
Tel. +41 32 327 55 11 (office) ____
Fax +41 58 460 54 66 ____
mailto: jorge.cancio@bakom.admin.ch <mailto:mailto:%20jorge.cancio@bakom.admin.ch>____
www.bakom.admin.ch
<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.bakom.admin.ch_&d=D wMFAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k &m=WCjv7z0Nza1tNJQJiHnGUpHMklTqTn52IfIOcBKzBtw&s=3nEqt43-48p3-o5fgYdwVLwTOmy BSWh5nAGRz6Iegyo&e=>____
__ __
cid:image001.png@01D2F585.7A604270____
__ __
Igf2017.swiss
<https://urldefense.proofpoint.com/v2/url?u=https-3A__igf2017.swiss_&d=DwMFA g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=W Cjv7z0Nza1tNJQJiHnGUpHMklTqTn52IfIOcBKzBtw&s=0es-R80LxKqpCDNcQ2Rk6O0ALSAJloN eMjjkepYX-Qk&e=>____
info@igf2017.swiss <mailto:info@igf2017.swiss>____
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_______________________________________________ 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
Note that ICANN already has assumed potential contractual liability in -- at least -- every country of any Registry Operator, since no Registry Agreement requires any forum for dispute, nor choice of law. So far, there has been no chaos, and afaik only two lawsuits by Registry Operators (both in the US - .Africa and Donuts). So, maybe it is best to leave it open in ICANN's contracts, allowing them to be sued (at least) in both the US and/or the RO's country. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.com On Mon, Sep 11, 2017 at 1:52 PM, Phil Corwin <psc@vlaw-dc.com> wrote:
Well put -- especially " ambiguity and uncertainty are the enemy of accountability".
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
-----Original Message----- From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org] On Behalf Of Paul Rosenzweig Sent: Monday, September 11, 2017 2:51 PM To: 'Nigel Roberts'; ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law
All
This is a fascinating discussion at any number of levels.
I begin with the proposition that in general the parties to a contract are free to choose the manner and forum within which to resolve any disputes that might arise. They may choose arbitration or litigation. They may specify a venue and they may specify a choice of law. I have even seen cases in which they pre-specify the arbitrator by name. We might say that ICANN's choice not to choose (and the RAs agreement to that) is just the nature of contracts.
That, however, would be incomplete since, in this instance, ICANN operates as a monopoly (technically a monopsony, but that's not really relevant) and thus, RAs have essentially no negotiating power. We may infer from ICANNs choice that it views the current ambiguous state of affairs as to its benefit. But ambiguity and uncertainty are the enemy of accountability and thus, I support the idea, generally, of pushing ICANN to specify how and under what law disputes with it will be resolved.
That then leads us to the hard question -- which law? We cannot reasonably ask ICANN to assume potential liability under 190+ different legal systems for contractual disputes. And we cannot, from an accountability perspective, want a world in which there are inconsistent results and how a contract provision is enforced depends on whether the suit is brought in Europe or in Asia. That type of uncertainty is also the enemy of accountability. Thus, I disagree with the submission that the presumption should be that the law of the registry apply to the agreement. That way lies chaos.
But we also cannot expect, at least not in this forum, to agree on which law should apply. It strikes me that the reasonable compromise answer is for this subgroup and CCWG to recommend that ICANN develop a menu of options for choice of law and choice of arbiter. With a broad enough group (of say 4-6) we might minimize divergence while allowing registries some choice in how their contracts will be judged.
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: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
-----Original Message----- From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Nigel Roberts Sent: Monday, September 11, 2017 6:19 AM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law
I see no reason whatsoever to limit the forum. Admiralty/maritime cases have a shopping list of jurisdictions that are well-versed in marine cases which are (I think)
New York London Cairo
and maybe a couple of others.
And the parties can choose.
As ICANN is better placed to handle other fora, the other party should have a free choice.
On 11/09/17 09:46, Raphaël BEAUREGARD-LACROIX wrote:
Kavouss,
I believe that was Becky was suggesting was an adaptation of applicable law according to pre-defined regions in the worldYou
For example, all registries in Europe could enter into a RA whose governing law would be Dutch law while North American registries would have US law as governing law, and then the community could provide input on which governing law they would want to have on a regional basis.
The same could go with courts, as I and Eric mentioned as well.
Obviously defining regions is somewhat arbitrary, but the community could also provide input on that.
I still think that the RAs are drafted accoding to an American style and would be better served by California law governing, while there could be more flexibility on the choice of forum.
Best,
2017-09-11 7:19 GMT+02:00 Schweighofer Erich <erich.schweighofer@univie.ac.at <mailto:erich.schweighofer@univie.ac.at>>:
Dear all,
__ __
I would support Beck Burr. It makes good sense to recommand regional arbitration courts that know the ICANN system and are established in jurisdictions with only necessary interference in arbitation (e.g. due process, transparency, rule of law).
__ __
Best,
Erich
__ __
*Von: *Kavouss Arasteh <mailto:kavouss.arasteh@gmail.com> *Gesendet: *Montag, 11. September 2017 07:12 *An: *Burr, Becky <mailto:Becky.Burr@team.neustar>; ws2-jurisdiction <mailto:ws2-jurisdiction@icann.org> *Betreff: *Re: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law
__ __
Dear Beckie Thanks for your views to which I totally disagree as a) thgere is no regional jurisdiction and b) there is no agreed definition of region. It is Strange that such a competent person like you taking about Something which does not exist t and can not exist as region is a term totally subjdective and can in no way be used for jurisdiction Kavouss
On Thu, Sep 7, 2017 at 1:55 PM, Burr, Becky via Ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>> wrote:
FWIW, punitive damages are not usually permitted in contract disputes - I wonder why ICANN includes them at all.
Also, rather than requiring ICANN to agree to submit to the jurisdiction of every country where it has a relationship with a registry or registrar, is it worth considering regional jurisdiction? Contracts with European registries and registrars could specify Swiss or Dutch or some other law, etc.?
*J. Beckwith Burr**** **Neustar, Inc.***/**Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW DC 20006 *Office:***+1.202.533.2932 *Mobile:***+1.202.352.6367____
*Follow Neustar:*LinkedIn*/* Twitter Reduceyour environmental footprint. Print only if necessary. ____
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The information contained in this email message is intended only for the use of the recipient(s) named above and may contain confidential and/or privileged information. If you are not the intended recipient you have received this email message in error and any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately and delete the original message.____
From: <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>" <Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch
Date: Wednesday, September 6, 2017 at 4:19 PM To: "ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>" <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>> Subject: [EXTERNAL] [Ws2-jurisdiction] issues on applicable law
Dear all,____
__ __
Here are, for your convenience, the two issues I have tried to briefly explain during today's conference call, for your consideration. ____
__ __
As said, the main thought is to reduce uncertainty, and clarify that the parties to the registry agreements have an effective freedom to choose the applicable law and to apply a principle of subsidiarity that may reduce potential conflicts with the national laws where they are based.____
__ __
==____
__ __
1. _Issue: _The law applicable to the Registry Agreement has been identified as being the main issue: ____
__ __
The Registry Agreement contains no provision relative to the choice of jurisdiction, the applicable law consequently not being defined by the Agreement. ____
This creates great legal uncertainty and a potential issue as regards the jurisdiction given that it would be the prerogative of the arbitrators or the judges having jurisdiction -who could come from a US Court- to determine what law governs the relationship between ICANN and the registry. ____
Pursuant to the current business practice, the applicable law is that of the party that provides the service in question, i.e. ICANN, a priori. A registry should therefore expect the potentially applicable law to be the law of the State of California.____
The applicable law further determines the faculty of ICANN to claim punitive or exemplary damages (i.e. under US law, damages highly surpassing the damage actually suffered, in order to punish a behavior), in the event the registry were to breach the contract in a deliberate and repeated manner (section 5.2 of the Registry Agreement.) This well-established institution of Common Law is non-existent under Swiss law, which follows the principle of compensation (damages are used to repair the damage but cannot enrich the claimant,) and should be considered to be contrary to public order. Were the Swiss law to apply to the Agreement, such damages would not be granted. Following the principles of the institutions typical to the Common Law provided for in the Registry Agreement poses issues of compatibility with other legal orders and suggests that Californian law would -a priori- apply to the Registry Agreement.____
__ __
_Possible solutions:_____
__ __
The applicable law should be determined on the basis of the legitimate expectations which the parties may have in terms of applicable law. It is understandable and appropriate that the fundamental provisions or duties contained in the Registry Agreement should apply equally to all registries around the world and be therefore interpreted in a uniform way. ____
__ __
Beyond a few provisions and duties which are absolutely fundamental, it would be judicious and consistent with a legitimate expectation that the contractual relationship between ICANN and a registry be subject to the national law of the latter. The foregoing is all the more reasonable given that the manager of a generic domain (TLD) is delegated broad powers, as it is within its scope to establish the purpose of the domain, the eligibility, or the terms of the assignment of domain names, not to mention that it has great freedom as to the way in which a domain is actually managed.____
__ __
There already exist special provisions for registries that are IGO/Governmental entities (section 7.16 registry agreement): if international law is at stake, there is a procedure (mediation and arbitration ex 5.2.) to resolve disputes between the registry and ICANN - this special provision could be extended:____
- To other registries that are not IGOs/Public authorities____
- To cover not only "international law obligations" but also national law obligations____
__ __
*___ ___*
2. _Issue: __arbitration clause_______
___ ___
With regard to territorial jurisdiction, the arbitration clause (section 5.2 of the Registry Agreement entitled "Arbitration text for intergovernmental organizations or governmental entities") has allowed the ".swiss" registry to submit itself to the arbitration of the International Court of Arbitration of the International Chamber of Commerce in Geneva, Switzerland. This provision also provides for some flexibilities restricted to IGOs or governmental entities as regards the competent court.____
__ __
However these flexibilities are not open to all registry operators. ____
__ __
_Possible solutions:_____
__ __
It would be wise in our opinion: ____
- to also allow private registries to decide on the choice of their arbitration/competent court; ____
- to broaden the possibilities of choice for all registries (by principle, to choose an arbitration recognized in each country.) ____
__ __
__ __
==____
__ __
Hope this may be considered.____
__ __
Regards____
__ __
Jorge ____
____
__ __
__ __
__ __
*Jorge Cancio ____*
*__ __*
International Relations____
Federal Department of the Environment, Transport, Energy and Communications DETEC ____
Federal Office of Communications OFCOM____
Zukunftstrasse 44, CH 2501 Biel ____
Tel. +41 58 460 54 58 (direct) ____
Tel. +41 32 327 55 11 (office) ____
Fax +41 58 460 54 66 ____
mailto: jorge.cancio@bakom.admin.ch <mailto:mailto:%20jorge.cancio@bakom.admin.ch>____
www.bakom.admin.ch
<https://urldefense.proofpoint.com/v2/url?u=http- 3A__www.bakom.admin.ch_&d=D wMFAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_ GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k &m=WCjv7z0Nza1tNJQJiHnGUpHMklTqTn52IfIOcBKzBtw&s=3nEqt43-48p3- o5fgYdwVLwTOmy BSWh5nAGRz6Iegyo&e=>____
__ __
cid:image001.png@01D2F585.7A604270____
__ __
Igf2017.swiss
<https://urldefense.proofpoint.com/v2/url?u=https- 3A__igf2017.swiss_&d=DwMFA g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k &m=W Cjv7z0Nza1tNJQJiHnGUpHMklTqTn52IfIOcBKzBtw&s=0es- R80LxKqpCDNcQ2Rk6O0ALSAJloN eMjjkepYX-Qk&e=>____
info@igf2017.swiss <mailto:info@igf2017.swiss>____
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_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
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_______________________________________________ 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
It would be really helpful if some of the* registrars and gTLD registry operators *in this group could provide their perspective on the issue of choice of governing law and venue in ICANN contracts! If need be, I will send the request to the CCWG Plenary and/or the RrSG and RySG, but it makes sense to start within the Subgroup. I look forward to responses. Greg On Mon, Sep 11, 2017 at 4:59 PM, Mike Rodenbaugh <mike@rodenbaugh.com> wrote:
Note that ICANN already has assumed potential contractual liability in -- at least -- every country of any Registry Operator, since no Registry Agreement requires any forum for dispute, nor choice of law. So far, there has been no chaos, and afaik only two lawsuits by Registry Operators (both in the US - .Africa and Donuts).
So, maybe it is best to leave it open in ICANN's contracts, allowing them to be sued (at least) in both the US and/or the RO's country.
Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 <(415)%20738-8087> http://rodenbaugh.com
On Mon, Sep 11, 2017 at 1:52 PM, Phil Corwin <psc@vlaw-dc.com> wrote:
Well put -- especially " ambiguity and uncertainty are the enemy of accountability".
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
-----Original Message----- From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounc es@icann.org] On Behalf Of Paul Rosenzweig Sent: Monday, September 11, 2017 2:51 PM To: 'Nigel Roberts'; ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law
All
This is a fascinating discussion at any number of levels.
I begin with the proposition that in general the parties to a contract are free to choose the manner and forum within which to resolve any disputes that might arise. They may choose arbitration or litigation. They may specify a venue and they may specify a choice of law. I have even seen cases in which they pre-specify the arbitrator by name. We might say that ICANN's choice not to choose (and the RAs agreement to that) is just the nature of contracts.
That, however, would be incomplete since, in this instance, ICANN operates as a monopoly (technically a monopsony, but that's not really relevant) and thus, RAs have essentially no negotiating power. We may infer from ICANNs choice that it views the current ambiguous state of affairs as to its benefit. But ambiguity and uncertainty are the enemy of accountability and thus, I support the idea, generally, of pushing ICANN to specify how and under what law disputes with it will be resolved.
That then leads us to the hard question -- which law? We cannot reasonably ask ICANN to assume potential liability under 190+ different legal systems for contractual disputes. And we cannot, from an accountability perspective, want a world in which there are inconsistent results and how a contract provision is enforced depends on whether the suit is brought in Europe or in Asia. That type of uncertainty is also the enemy of accountability. Thus, I disagree with the submission that the presumption should be that the law of the registry apply to the agreement. That way lies chaos.
But we also cannot expect, at least not in this forum, to agree on which law should apply. It strikes me that the reasonable compromise answer is for this subgroup and CCWG to recommend that ICANN develop a menu of options for choice of law and choice of arbiter. With a broad enough group (of say 4-6) we might minimize divergence while allowing registries some choice in how their contracts will be judged.
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: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
-----Original Message----- From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Nigel Roberts Sent: Monday, September 11, 2017 6:19 AM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law
I see no reason whatsoever to limit the forum. Admiralty/maritime cases have a shopping list of jurisdictions that are well-versed in marine cases which are (I think)
New York London Cairo
and maybe a couple of others.
And the parties can choose.
As ICANN is better placed to handle other fora, the other party should have a free choice.
On 11/09/17 09:46, Raphaël BEAUREGARD-LACROIX wrote:
Kavouss,
I believe that was Becky was suggesting was an adaptation of applicable law according to pre-defined regions in the worldYou
For example, all registries in Europe could enter into a RA whose governing law would be Dutch law while North American registries would have US law as governing law, and then the community could provide input on which governing law they would want to have on a regional basis.
The same could go with courts, as I and Eric mentioned as well.
Obviously defining regions is somewhat arbitrary, but the community could also provide input on that.
I still think that the RAs are drafted accoding to an American style and would be better served by California law governing, while there could be more flexibility on the choice of forum.
Best,
2017-09-11 7:19 GMT+02:00 Schweighofer Erich <erich.schweighofer@univie.ac.at <mailto:erich.schweighofer@univie.ac.at>>:
Dear all,
__ __
I would support Beck Burr. It makes good sense to recommand regional arbitration courts that know the ICANN system and are established in jurisdictions with only necessary interference in arbitation (e.g. due process, transparency, rule of law).
__ __
Best,
Erich
__ __
*Von: *Kavouss Arasteh <mailto:kavouss.arasteh@gmail.com> *Gesendet: *Montag, 11. September 2017 07:12 *An: *Burr, Becky <mailto:Becky.Burr@team.neustar>; ws2-jurisdiction <mailto:ws2-jurisdiction@icann.org> *Betreff: *Re: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law
__ __
Dear Beckie Thanks for your views to which I totally disagree as a) thgere is no regional jurisdiction and b) there is no agreed definition of region. It is Strange that such a competent person like you taking about Something which does not exist t and can not exist as region is a term totally subjdective and can in no way be used for jurisdiction Kavouss
On Thu, Sep 7, 2017 at 1:55 PM, Burr, Becky via Ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>> wrote:
FWIW, punitive damages are not usually permitted in contract disputes - I wonder why ICANN includes them at all.
Also, rather than requiring ICANN to agree to submit to the jurisdiction of every country where it has a relationship with a registry or registrar, is it worth considering regional jurisdiction? Contracts with European registries and registrars could specify Swiss or Dutch or some other law, etc.?
*J. Beckwith Burr**** **Neustar, Inc.***/**Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW DC 20006 *Office:***+1.202.533.2932 *Mobile:***+1.202.352.6367____
*Follow Neustar:*LinkedIn*/* Twitter Reduceyour environmental footprint. Print only if necessary. ____
------------------------------------------------------------------------
The information contained in this email message is intended only for the use of the recipient(s) named above and may contain confidential and/or privileged information. If you are not the intended recipient you have received this email message in error and any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately and delete the original message.____
From: <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>" <Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.adm
in.ch>>
Date: Wednesday, September 6, 2017 at 4:19 PM To: "ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>" <
ws2-jurisdiction@icann.org
<mailto:ws2-jurisdiction@icann.org>> Subject: [EXTERNAL] [Ws2-jurisdiction] issues on applicable law
Dear all,____
__ __
Here are, for your convenience, the two issues I have tried to briefly explain during today's conference call, for your consideration. ____
__ __
As said, the main thought is to reduce uncertainty, and clarify that the parties to the registry agreements have an effective freedom to choose the applicable law and to apply a principle of subsidiarity that may reduce potential conflicts with the national laws where they are based.____
__ __
==____
__ __
1. _Issue: _The law applicable to the Registry Agreement has been identified as being the main issue: ____
__ __
The Registry Agreement contains no provision relative to the choice of jurisdiction, the applicable law consequently not being defined by the Agreement. ____
This creates great legal uncertainty and a potential issue as regards the jurisdiction given that it would be the prerogative of the arbitrators or the judges having jurisdiction -who could come from a US Court- to determine what law governs the relationship between ICANN and the registry. ____
Pursuant to the current business practice, the applicable law is that of the party that provides the service in question, i.e. ICANN, a priori. A registry should therefore expect the potentially applicable law to be the law of the State of California.____
The applicable law further determines the faculty of ICANN to claim punitive or exemplary damages (i.e. under US law, damages highly surpassing the damage actually suffered, in order to punish a behavior), in the event the registry were to breach the contract in a deliberate and repeated manner (section 5.2 of the Registry Agreement.) This well-established institution of Common Law is non-existent under Swiss law, which follows the principle of compensation (damages are used to repair the damage but cannot enrich the claimant,) and should be considered to be contrary to public order. Were the Swiss law to apply to the Agreement, such damages would not be granted. Following the principles of the institutions typical to the Common Law provided for in the Registry Agreement poses issues of compatibility with other legal orders and suggests that Californian law would -a priori- apply to the Registry Agreement.____
__ __
_Possible solutions:_____
__ __
The applicable law should be determined on the basis of the legitimate expectations which the parties may have in terms of applicable law. It is understandable and appropriate that the fundamental provisions or duties contained in the Registry Agreement should apply equally to all registries around the world and be therefore interpreted in a uniform way. ____
__ __
Beyond a few provisions and duties which are absolutely fundamental, it would be judicious and consistent with a legitimate expectation that the contractual relationship between ICANN and a registry be subject to the national law of the latter. The foregoing is all the more reasonable given that the manager of a generic domain (TLD) is delegated broad powers, as it is within its scope to establish the purpose of the domain, the eligibility, or the terms of the assignment of domain names, not to mention that it has great freedom as to the way in which a domain is actually managed.____
__ __
There already exist special provisions for registries that are IGO/Governmental entities (section 7.16 registry agreement): if international law is at stake, there is a procedure (mediation and arbitration ex 5.2.) to resolve disputes between the registry and ICANN - this special provision could be extended:____
- To other registries that are not IGOs/Public authorities____
- To cover not only "international law obligations" but also national law obligations____
__ __
*___ ___*
2. _Issue: __arbitration clause_______
___ ___
With regard to territorial jurisdiction, the arbitration clause (section 5.2 of the Registry Agreement entitled "Arbitration text for intergovernmental organizations or governmental entities") has allowed the ".swiss" registry to submit itself to the arbitration of the International Court of Arbitration of the International Chamber of Commerce in Geneva, Switzerland. This provision also provides for some flexibilities restricted to IGOs or governmental entities as regards the competent court.____
__ __
However these flexibilities are not open to all registry operators. ____
__ __
_Possible solutions:_____
__ __
It would be wise in our opinion: ____
- to also allow private registries to decide on the choice of their arbitration/competent court; ____
- to broaden the possibilities of choice for all registries (by principle, to choose an arbitration recognized in each country.) ____
__ __
__ __
==____
__ __
Hope this may be considered.____
__ __
Regards____
__ __
Jorge ____
____
__ __
__ __
__ __
*Jorge Cancio ____*
*__ __*
International Relations____
Federal Department of the Environment, Transport, Energy and Communications DETEC ____
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Just noting that I represent a sizable number of ROs and registrars in dealings with ICANN; but these views are my own, not my clients'. Agreed it would be good to have perspective from other contracted parties or their representatives. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.com On Mon, Sep 11, 2017 at 2:13 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
It would be really helpful if some of the* registrars and gTLD registry operators *in this group could provide their perspective on the issue of choice of governing law and venue in ICANN contracts! If need be, I will send the request to the CCWG Plenary and/or the RrSG and RySG, but it makes sense to start within the Subgroup. I look forward to responses.
Greg
On Mon, Sep 11, 2017 at 4:59 PM, Mike Rodenbaugh <mike@rodenbaugh.com> wrote:
Note that ICANN already has assumed potential contractual liability in -- at least -- every country of any Registry Operator, since no Registry Agreement requires any forum for dispute, nor choice of law. So far, there has been no chaos, and afaik only two lawsuits by Registry Operators (both in the US - .Africa and Donuts).
So, maybe it is best to leave it open in ICANN's contracts, allowing them to be sued (at least) in both the US and/or the RO's country.
Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 <(415)%20738-8087> http://rodenbaugh.com
On Mon, Sep 11, 2017 at 1:52 PM, Phil Corwin <psc@vlaw-dc.com> wrote:
Well put -- especially " ambiguity and uncertainty are the enemy of accountability".
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-----Original Message----- From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounc es@icann.org] On Behalf Of Paul Rosenzweig Sent: Monday, September 11, 2017 2:51 PM To: 'Nigel Roberts'; ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law
All
This is a fascinating discussion at any number of levels.
I begin with the proposition that in general the parties to a contract are free to choose the manner and forum within which to resolve any disputes that might arise. They may choose arbitration or litigation. They may specify a venue and they may specify a choice of law. I have even seen cases in which they pre-specify the arbitrator by name. We might say that ICANN's choice not to choose (and the RAs agreement to that) is just the nature of contracts.
That, however, would be incomplete since, in this instance, ICANN operates as a monopoly (technically a monopsony, but that's not really relevant) and thus, RAs have essentially no negotiating power. We may infer from ICANNs choice that it views the current ambiguous state of affairs as to its benefit. But ambiguity and uncertainty are the enemy of accountability and thus, I support the idea, generally, of pushing ICANN to specify how and under what law disputes with it will be resolved.
That then leads us to the hard question -- which law? We cannot reasonably ask ICANN to assume potential liability under 190+ different legal systems for contractual disputes. And we cannot, from an accountability perspective, want a world in which there are inconsistent results and how a contract provision is enforced depends on whether the suit is brought in Europe or in Asia. That type of uncertainty is also the enemy of accountability. Thus, I disagree with the submission that the presumption should be that the law of the registry apply to the agreement. That way lies chaos.
But we also cannot expect, at least not in this forum, to agree on which law should apply. It strikes me that the reasonable compromise answer is for this subgroup and CCWG to recommend that ICANN develop a menu of options for choice of law and choice of arbiter. With a broad enough group (of say 4-6) we might minimize divergence while allowing registries some choice in how their contracts will be judged.
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: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
-----Original Message----- From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Nigel Roberts Sent: Monday, September 11, 2017 6:19 AM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law
I see no reason whatsoever to limit the forum. Admiralty/maritime cases have a shopping list of jurisdictions that are well-versed in marine cases which are (I think)
New York London Cairo
and maybe a couple of others.
And the parties can choose.
As ICANN is better placed to handle other fora, the other party should have a free choice.
On 11/09/17 09:46, Raphaël BEAUREGARD-LACROIX wrote:
Kavouss,
I believe that was Becky was suggesting was an adaptation of applicable law according to pre-defined regions in the worldYou
For example, all registries in Europe could enter into a RA whose governing law would be Dutch law while North American registries would have US law as governing law, and then the community could provide input on which governing law they would want to have on a regional basis.
The same could go with courts, as I and Eric mentioned as well.
Obviously defining regions is somewhat arbitrary, but the community could also provide input on that.
I still think that the RAs are drafted accoding to an American style and would be better served by California law governing, while there could be more flexibility on the choice of forum.
Best,
2017-09-11 7:19 GMT+02:00 Schweighofer Erich <erich.schweighofer@univie.ac.at <mailto:erich.schweighofer@univie.ac.at>>:
Dear all,
__ __
I would support Beck Burr. It makes good sense to recommand regional arbitration courts that know the ICANN system and are established in jurisdictions with only necessary interference in arbitation (e.g. due process, transparency, rule of law).
__ __
Best,
Erich
__ __
*Von: *Kavouss Arasteh <mailto:kavouss.arasteh@gmail.com> *Gesendet: *Montag, 11. September 2017 07:12 *An: *Burr, Becky <mailto:Becky.Burr@team.neustar>; ws2-jurisdiction <mailto:ws2-jurisdiction@icann.org> *Betreff: *Re: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law
__ __
Dear Beckie Thanks for your views to which I totally disagree as a) thgere is no regional jurisdiction and b) there is no agreed definition of region. It is Strange that such a competent person like you taking about Something which does not exist t and can not exist as region is a term totally subjdective and can in no way be used for jurisdiction Kavouss
On Thu, Sep 7, 2017 at 1:55 PM, Burr, Becky via Ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>> wrote:
FWIW, punitive damages are not usually permitted in contract disputes - I wonder why ICANN includes them at all.
Also, rather than requiring ICANN to agree to submit to the jurisdiction of every country where it has a relationship with a registry or registrar, is it worth considering regional jurisdiction? Contracts with European registries and registrars could specify Swiss or Dutch or some other law, etc.?
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From: <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>" <Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.adm
in.ch>>
Date: Wednesday, September 6, 2017 at 4:19 PM To: "ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>" <
ws2-jurisdiction@icann.org
<mailto:ws2-jurisdiction@icann.org>> Subject: [EXTERNAL] [Ws2-jurisdiction] issues on applicable law
Dear all,____
__ __
Here are, for your convenience, the two issues I have tried to briefly explain during today's conference call, for your consideration. ____
__ __
As said, the main thought is to reduce uncertainty, and clarify that the parties to the registry agreements have an effective freedom to choose the applicable law and to apply a principle
of
subsidiarity that may reduce potential conflicts with the national laws where they are based.____
__ __
==____
__ __
1. _Issue: _The law applicable to the Registry Agreement has been identified as being the main issue: ____
__ __
The Registry Agreement contains no provision relative to the choice of jurisdiction, the applicable law consequently not being defined by the Agreement. ____
This creates great legal uncertainty and a potential issue as regards the jurisdiction given that it would be the prerogative of the arbitrators or the judges having jurisdiction -who could come from a US Court- to determine what law governs the relationship between ICANN and the registry. ____
Pursuant to the current business practice, the applicable law
is
that of the party that provides the service in question, i.e. ICANN, a priori. A registry should therefore expect the potentially applicable law to be the law of the State of California.____
The applicable law further determines the faculty of ICANN to claim punitive or exemplary damages (i.e. under US law, damages highly surpassing the damage actually suffered, in order to punish a behavior), in the event the registry were to breach
the
contract in a deliberate and repeated manner (section 5.2 of
the
Registry Agreement.) This well-established institution of
Common
Law is non-existent under Swiss law, which follows the
principle
of compensation (damages are used to repair the damage but cannot enrich the claimant,) and should be considered to be contrary to public order. Were the Swiss law to apply to the Agreement, such damages would not be granted. Following the principles of the institutions typical to the Common Law provided for in the Registry Agreement poses issues of compatibility with other legal orders and suggests that Californian law would -a priori- apply to the Registry Agreement.____
__ __
_Possible solutions:_____
__ __
The applicable law should be determined on the basis of the legitimate expectations which the parties may have in terms of applicable law. It is understandable and appropriate that the fundamental provisions or duties contained in the Registry Agreement should apply equally to all registries around the world and be therefore interpreted in a uniform way. ____
__ __
Beyond a few provisions and duties which are absolutely fundamental, it would be judicious and consistent with a legitimate expectation that the contractual relationship
between
ICANN and a registry be subject to the national law of the latter. The foregoing is all the more reasonable given that the manager of a generic domain (TLD) is delegated broad powers, as it is within its scope to establish the purpose of the domain, the eligibility, or the terms of the assignment of domain
names,
not to mention that it has great freedom as to the way in which a domain is actually managed.____
__ __
There already exist special provisions for registries that are IGO/Governmental entities (section 7.16 registry agreement): if international law is at stake, there is a procedure (mediation and arbitration ex 5.2.) to resolve disputes between the registry and ICANN - this special provision could be extended:____
- To other registries that are not IGOs/Public authorities____
- To cover not only "international law obligations" but also national law obligations____
__ __
*___ ___*
2. _Issue: __arbitration clause_______
___ ___
With regard to territorial jurisdiction, the arbitration clause (section 5.2 of the Registry Agreement entitled "Arbitration text for intergovernmental organizations or governmental entities") has allowed the ".swiss" registry to submit itself
to
the arbitration of the International Court of Arbitration of
the
International Chamber of Commerce in Geneva, Switzerland. This provision also provides for some flexibilities restricted to IGOs or governmental entities as regards the competent court.____
__ __
However these flexibilities are not open to all registry operators. ____
__ __
_Possible solutions:_____
__ __
It would be wise in our opinion: ____
- to also allow private registries to decide on the choice of their arbitration/competent court; ____
- to broaden the possibilities of choice for all registries (by principle, to choose an arbitration recognized in each
country.)
____
__ __
__ __
==____
__ __
Hope this may be considered.____
__ __
Regards____
__ __
Jorge ____
____
__ __
__ __
__ __
*Jorge Cancio ____*
*__ __*
International Relations____
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Very interesting post Paul. But, are you agreeing or disagreeing with the "menu" being based on regions? If you are agreeing, then how do we avoid this problem:
And we cannot, from an accountability perspective, want a world in which there are inconsistent results and how a contract provision is enforced depends on whether the suit is brought in Europe or in Asia. That type of uncertainty is also the enemy of accountability. Thus, I disagree with the submission that the presumption should be that the law of the registry apply to the agreement. That way lies chaos.
Paul: I am sorry if I did not express myself correctly but this is not exactly what I meant, to the contrary: I think that the choice of law clause would be given effects, but that there would be an issue of compatibility (and interpretation) between certain clauses in the contract and the way they are drafted (i.e. according to US law) and any other eventual governing law, especially if such governing law also includes elements of EU law. Mike: as far as I understand the RA, it is specified that the arbitration is to "occur" in LA, which I understand as meaning that both the seat and the actual physical location of the arbitration proceedings is LA. In that sense I do not see any choice of venue, but an imposed venue that is California and more specifically LA. But did I read that wrongly and/or are you saying something else? Jorge: thank you for your replies. I think we mostly agree as far as choice of venue is concerned. As for the governing law, I also get your point that there are some super-mandatory provisions of EU law, for example, which apply to any agreement to which a EU natural or legal person is party. These apply anyway, whichever governing law is chosen. Maybe the language of the RA could better reflect this reality though, but inserting such a clause would certainly be an American legal reflex and not a civil law one ;) belt and suspenders! I also understand your idea to increase flexibility by making categories of contract provisions and then having different rules apply to these, but I must say that I do not see this as a viable option. In my view this would lead to a lot of interpretation troubles because obligations are often related to each other. I would rather go with a "menu" (the choice applying to the *whole *contract) and run the risk, to some extent, to have some provisions of the RA "knocked out" of it by mandatory provisions of say French or Swiss and eventually EU law than start dividing up the contracts into parts and have different laws apply to these parts. However as Milton and Paul point out, there is a problem with the menu which is that of uniform application all over the world. Some registries would "benefit" or "suffer" from a different in terms of substance by choosing a different governing law in the menu. 2017-09-13 16:21 GMT+02:00 Mueller, Milton L <milton@gatech.edu>:
Very interesting post Paul. But, are you agreeing or disagreeing with the "menu" being based on regions? If you are agreeing, then how do we avoid this problem:
And we cannot, from an accountability perspective, want a world in which there are inconsistent results and how a contract provision is enforced depends on whether the suit is brought in Europe or in Asia. That type of uncertainty is also the enemy of accountability. Thus, I disagree with the submission that the presumption should be that the law of the registry apply to the agreement. That way lies chaos.
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Apologies that I misspoke, the RAs do have an arbitration venue clause in LA. But no choice of law clause. The agreements signed by new TLD applicants (Module 6 of AGB) intentionally did not have either a venue or choice of law clause, as there was no community consensus at the time, and ICANN required applicants to covenant not to sue ICANN, anywhere, for anything relating to the new TLD program. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.com On Wed, Sep 13, 2017 at 7:58 AM, Raphaël BEAUREGARD-LACROIX < raphael.beauregardlacroix@sciencespo.fr> wrote:
Paul: I am sorry if I did not express myself correctly but this is not exactly what I meant, to the contrary: I think that the choice of law clause would be given effects, but that there would be an issue of compatibility (and interpretation) between certain clauses in the contract and the way they are drafted (i.e. according to US law) and any other eventual governing law, especially if such governing law also includes elements of EU law.
Mike: as far as I understand the RA, it is specified that the arbitration is to "occur" in LA, which I understand as meaning that both the seat and the actual physical location of the arbitration proceedings is LA. In that sense I do not see any choice of venue, but an imposed venue that is California and more specifically LA. But did I read that wrongly and/or are you saying something else?
Jorge: thank you for your replies. I think we mostly agree as far as choice of venue is concerned. As for the governing law, I also get your point that there are some super-mandatory provisions of EU law, for example, which apply to any agreement to which a EU natural or legal person is party. These apply anyway, whichever governing law is chosen. Maybe the language of the RA could better reflect this reality though, but inserting such a clause would certainly be an American legal reflex and not a civil law one ;) belt and suspenders!
I also understand your idea to increase flexibility by making categories of contract provisions and then having different rules apply to these, but I must say that I do not see this as a viable option. In my view this would lead to a lot of interpretation troubles because obligations are often related to each other.
I would rather go with a "menu" (the choice applying to the *whole *contract) and run the risk, to some extent, to have some provisions of the RA "knocked out" of it by mandatory provisions of say French or Swiss and eventually EU law than start dividing up the contracts into parts and have different laws apply to these parts.
However as Milton and Paul point out, there is a problem with the menu which is that of uniform application all over the world. Some registries would "benefit" or "suffer" from a different in terms of substance by choosing a different governing law in the menu.
2017-09-13 16:21 GMT+02:00 Mueller, Milton L <milton@gatech.edu>:
Very interesting post Paul. But, are you agreeing or disagreeing with the "menu" being based on regions? If you are agreeing, then how do we avoid this problem:
And we cannot, from an accountability perspective, want a world in which there are inconsistent results and how a contract provision is enforced depends on whether the suit is brought in Europe or in Asia. That type of uncertainty is also the enemy of accountability. Thus, I disagree with the submission that the presumption should be that the law of the registry apply to the agreement. That way lies chaos.
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We can't avoid inconsistency altogether if there is more than one jurisdiction involved. Almost by definition, with more than one jurisdiction available the risk of inconsistency and uncertainty is heightened. At the other end of the spectrum is a world with 190+ jurisdictions. In that context the risk of inconsistency is at its maximum. I personally have no concerns about the use of California law exclusively. Others in the community, however, do have those concerns. A menu option with a few regional choices seems to answer those concerns without a huge increase in the risk of inconsistency -- especially if it is accompanied by an urge toward uniformity in areas where uniformity is most essential (like operational issues). It is an imperfect solution -- offered in the spirit of compromise, not as a canonically correct exposition of principle. 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: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 -----Original Message----- From: Mueller, Milton L [mailto:milton@gatech.edu] Sent: Wednesday, September 13, 2017 10:22 AM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; ws2-jurisdiction@icann.org Subject: RE: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law Very interesting post Paul. But, are you agreeing or disagreeing with the "menu" being based on regions? If you are agreeing, then how do we avoid this problem:
And we cannot, from an accountability perspective, want a world in which there are inconsistent results and how a contract provision is enforced depends on whether the suit is brought in Europe or in Asia. That type of uncertainty is also the enemy of accountability. Thus, I disagree with the submission that the presumption should be that the law of the registry apply to the agreement. That way lies chaos.
Dear all, With pleasure I can agree with Paul to a large extent on his compromise proposal. This approach paired with effective choice for the parties to the agreements would leave enough room for them to finetune them to their needs. best regards Jorge ________________________________ Von: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> Datum: 13. September 2017 um 17:26:06 MESZ An: ws2-jurisdiction@icann.org <ws2-jurisdiction@icann.org>, 'Mueller, Milton L' <milton@gatech.edu> Betreff: Re: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law We can't avoid inconsistency altogether if there is more than one jurisdiction involved. Almost by definition, with more than one jurisdiction available the risk of inconsistency and uncertainty is heightened. At the other end of the spectrum is a world with 190+ jurisdictions. In that context the risk of inconsistency is at its maximum. I personally have no concerns about the use of California law exclusively. Others in the community, however, do have those concerns. A menu option with a few regional choices seems to answer those concerns without a huge increase in the risk of inconsistency -- especially if it is accompanied by an urge toward uniformity in areas where uniformity is most essential (like operational issues). It is an imperfect solution -- offered in the spirit of compromise, not as a canonically correct exposition of principle. 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<http://www.redbranchconsulting.com> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 -----Original Message----- From: Mueller, Milton L [mailto:milton@gatech.edu] Sent: Wednesday, September 13, 2017 10:22 AM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; ws2-jurisdiction@icann.org Subject: RE: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law Very interesting post Paul. But, are you agreeing or disagreeing with the "menu" being based on regions? If you are agreeing, then how do we avoid this problem:
And we cannot, from an accountability perspective, want a world in which there are inconsistent results and how a contract provision is enforced depends on whether the suit is brought in Europe or in Asia. That type of uncertainty is also the enemy of accountability. Thus, I disagree with the submission that the presumption should be that the law of the registry apply to the agreement. That way lies chaos.
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
As long as registries have the choice, a regional "menu" approach seems ok to me.
-----Original Message----- From: Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com] Sent: Wednesday, September 13, 2017 11:25 AM To: Mueller, Milton L <milton@gatech.edu>; ws2-jurisdiction@icann.org Subject: RE: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law
We can't avoid inconsistency altogether if there is more than one jurisdiction involved. Almost by definition, with more than one jurisdiction available the risk of inconsistency and uncertainty is heightened.
At the other end of the spectrum is a world with 190+ jurisdictions. In that context the risk of inconsistency is at its maximum.
I personally have no concerns about the use of California law exclusively. Others in the community, however, do have those concerns. A menu option with a few regional choices seems to answer those concerns without a huge increase in the risk of inconsistency -- especially if it is accompanied by an urge toward uniformity in areas where uniformity is most essential (like operational issues).
It is an imperfect solution -- offered in the spirit of compromise, not as a canonically correct exposition of principle.
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: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA06 6684
-----Original Message----- From: Mueller, Milton L [mailto:milton@gatech.edu] Sent: Wednesday, September 13, 2017 10:22 AM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; ws2-jurisdiction@icann.org Subject: RE: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law
Very interesting post Paul. But, are you agreeing or disagreeing with the "menu" being based on regions? If you are agreeing, then how do we avoid this problem:
And we cannot, from an accountability perspective, want a world in which there are inconsistent results and how a contract provision is enforced depends on whether the suit is brought in Europe or in Asia. That type of uncertainty is also the enemy of accountability. Thus, I disagree with the submission that the presumption should be that the law of the registry apply to the agreement. That way lies chaos.
Dear all, I apologise in advance for not being able to make it to tomorrow's call since I will be held at work until late evening CET. While there will probably be more discussions of this topic tomorrow, I have prepared a skeleton draft recommendation as a google doc so that we can start working towards our final objective, since it does seem at this point that there is a form of consensus emerging on both the fact that this is an issue and over solutions. https://docs.google.com/document/d/1xAyla8FTaL7jZ0D2rYtAzQUr3gEnirTKiAG-kqD0... To be very honest I do not know of the formal or even substantive requirements for recommendations, so I just took some ideas from the OFAC one. I guess at this point is just for everyone to jump in and contribute, as this is far from complete (and maybe even accurate.) I will myself be adding more materials from our discussions into this during the coming week. I remember Greg you said you would prepare some form of wrap-up/forward looking document, in any case (and especially if yours is more fleshed out) feel free to incorporate whatever can be incorporated from this one into yours so that we work in a single document. Best, Raphael 2017-09-14 17:37 GMT+02:00 Mueller, Milton L <milton@gatech.edu>:
As long as registries have the choice, a regional "menu" approach seems ok to me.
-----Original Message----- From: Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com] Sent: Wednesday, September 13, 2017 11:25 AM To: Mueller, Milton L <milton@gatech.edu>; ws2-jurisdiction@icann.org Subject: RE: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law
We can't avoid inconsistency altogether if there is more than one jurisdiction involved. Almost by definition, with more than one jurisdiction available the risk of inconsistency and uncertainty is heightened.
At the other end of the spectrum is a world with 190+ jurisdictions. In that context the risk of inconsistency is at its maximum.
I personally have no concerns about the use of California law exclusively. Others in the community, however, do have those concerns. A menu option with a few regional choices seems to answer those concerns without a huge increase in the risk of inconsistency -- especially if it is accompanied by an urge toward uniformity in areas where uniformity is most essential (like operational issues).
It is an imperfect solution -- offered in the spirit of compromise, not as a canonically correct exposition of principle.
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: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA06 6684
-----Original Message----- From: Mueller, Milton L [mailto:milton@gatech.edu] Sent: Wednesday, September 13, 2017 10:22 AM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; ws2-jurisdiction@icann.org Subject: RE: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law
Very interesting post Paul. But, are you agreeing or disagreeing with the "menu" being based on regions? If you are agreeing, then how do we avoid this problem:
And we cannot, from an accountability perspective, want a world in which there are inconsistent results and how a contract provision is enforced depends on whether the suit is brought in Europe or in Asia. That type of uncertainty is also the enemy of accountability. Thus, I disagree with the submission that the presumption should be that the law of the registry apply to the agreement. That way lies chaos.
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
-- Raphaël Beauregard-Lacroix LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
Dear Raphaël and all, Thanks for kick-starting this drafting exercise! I have taken the liberty of redrafting and adding some wording to the Google Docs, using the “suggesting mode”. See attached the resulting Word for those with no access to Google Docs. The main change is to consider the “menu approach” (your option 1) as the potential recommended course of action, which would increase the freedom of choice and the flexibilities for registries. Your options 2 and 3 would be just possible outcomes and/or solutions that would depend on how the corresponding registry (and ICANN) agree to exercise that freedom of choice. Hope these changes may be acceptable to you and all – at least as a start for further discussion. Kind regards Jorge Von: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] Im Auftrag von Raphaël BEAUREGARD-LACROIX Gesendet: Sonntag, 17. September 2017 21:48 An: Mueller, Milton L <milton@gatech.edu> Cc: ws2-jurisdiction@icann.org Betreff: Re: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law Dear all, I apologise in advance for not being able to make it to tomorrow's call since I will be held at work until late evening CET. While there will probably be more discussions of this topic tomorrow, I have prepared a skeleton draft recommendation as a google doc so that we can start working towards our final objective, since it does seem at this point that there is a form of consensus emerging on both the fact that this is an issue and over solutions. https://docs.google.com/document/d/1xAyla8FTaL7jZ0D2rYtAzQUr3gEnirTKiAG-kqD0... To be very honest I do not know of the formal or even substantive requirements for recommendations, so I just took some ideas from the OFAC one. I guess at this point is just for everyone to jump in and contribute, as this is far from complete (and maybe even accurate.) I will myself be adding more materials from our discussions into this during the coming week. I remember Greg you said you would prepare some form of wrap-up/forward looking document, in any case (and especially if yours is more fleshed out) feel free to incorporate whatever can be incorporated from this one into yours so that we work in a single document. Best, Raphael 2017-09-14 17:37 GMT+02:00 Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>>: As long as registries have the choice, a regional "menu" approach seems ok to me.
-----Original Message----- From: Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>] Sent: Wednesday, September 13, 2017 11:25 AM To: Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: RE: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law
We can't avoid inconsistency altogether if there is more than one jurisdiction involved. Almost by definition, with more than one jurisdiction available the risk of inconsistency and uncertainty is heightened.
At the other end of the spectrum is a world with 190+ jurisdictions. In that context the risk of inconsistency is at its maximum.
I personally have no concerns about the use of California law exclusively. Others in the community, however, do have those concerns. A menu option with a few regional choices seems to answer those concerns without a huge increase in the risk of inconsistency -- especially if it is accompanied by an urge toward uniformity in areas where uniformity is most essential (like operational issues).
It is an imperfect solution -- offered in the spirit of compromise, not as a canonically correct exposition of principle.
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: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA06 6684
-----Original Message----- From: Mueller, Milton L [mailto:milton@gatech.edu<mailto:milton@gatech.edu>] Sent: Wednesday, September 13, 2017 10:22 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] [EXTERNAL] issues on applicable law
Very interesting post Paul. But, are you agreeing or disagreeing with the "menu" being based on regions? If you are agreeing, then how do we avoid this problem:
And we cannot, from an accountability perspective, want a world in which there are inconsistent results and how a contract provision is enforced depends on whether the suit is brought in Europe or in Asia. That type of uncertainty is also the enemy of accountability. Thus, I disagree with the submission that the presumption should be that the law of the registry apply to the agreement. That way lies chaos.
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Raphaël Beauregard-Lacroix LinkedIn<https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012<https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
Dear all, I have added advantages and disadvantages for the various options we have open at the moment regarding governing law, based on the discussions on the list and on call. Please also comment, edit or make changes you in the working document as you see fit. Here is the link: https://docs.google.com/document/d/1xAyla8FTaL7jZ0D2rYtAzQUr3gEnirTKiAG-kqD0... I suppose that, given the deadline, it would be useful to try to come to a consensus so that we can formulate our recommendation/suggestion. I know some people have said on call/chat they had not entirely made up their mind regarding the best option. Best, Raphael 2017-09-19 8:48 GMT+02:00 <Jorge.Cancio@bakom.admin.ch>:
Dear Raphaël and all,
Thanks for kick-starting this drafting exercise! I have taken the liberty of redrafting and adding some wording to the Google Docs, using the “suggesting mode”. See attached the resulting Word for those with no access to Google Docs.
The main change is to consider the “menu approach” (your option 1) as the potential recommended course of action, which would increase the freedom of choice and the flexibilities for registries. Your options 2 and 3 would be just possible outcomes and/or solutions that would depend on how the corresponding registry (and ICANN) agree to exercise that freedom of choice.
Hope these changes may be acceptable to you and all – at least as a start for further discussion.
Kind regards
Jorge
*Von:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounc es@icann.org] *Im Auftrag von *Raphaël BEAUREGARD-LACROIX *Gesendet:* Sonntag, 17. September 2017 21:48 *An:* Mueller, Milton L <milton@gatech.edu> *Cc:* ws2-jurisdiction@icann.org *Betreff:* Re: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law
Dear all,
I apologise in advance for not being able to make it to tomorrow's call since I will be held at work until late evening CET.
While there will probably be more discussions of this topic tomorrow, I have prepared a skeleton draft recommendation as a google doc so that we can start working towards our final objective, since it does seem at this point that there is a form of consensus emerging on both the fact that this is an issue and over solutions.
https://docs.google.com/document/d/1xAyla8FTaL7jZ0D2rYtAzQUr 3gEnirTKiAG-kqD0ZSs/edit?usp=sharing
To be very honest I do not know of the formal or even substantive requirements for recommendations, so I just took some ideas from the OFAC one.
I guess at this point is just for everyone to jump in and contribute, as this is far from complete (and maybe even accurate.) I will myself be adding more materials from our discussions into this during the coming week.
I remember Greg you said you would prepare some form of wrap-up/forward looking document, in any case (and especially if yours is more fleshed out) feel free to incorporate whatever can be incorporated from this one into yours so that we work in a single document.
Best,
Raphael
2017-09-14 17:37 GMT+02:00 Mueller, Milton L <milton@gatech.edu>:
As long as registries have the choice, a regional "menu" approach seems ok to me.
-----Original Message----- From: Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com] Sent: Wednesday, September 13, 2017 11:25 AM To: Mueller, Milton L <milton@gatech.edu>; ws2-jurisdiction@icann.org Subject: RE: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law
We can't avoid inconsistency altogether if there is more than one jurisdiction involved. Almost by definition, with more than one jurisdiction available the risk of inconsistency and uncertainty is heightened.
At the other end of the spectrum is a world with 190+ jurisdictions. In that context the risk of inconsistency is at its maximum.
I personally have no concerns about the use of California law exclusively. Others in the community, however, do have those concerns. A menu option with a few regional choices seems to answer those concerns without a huge increase in the risk of inconsistency -- especially if it is accompanied by an urge toward uniformity in areas where uniformity is most essential (like operational issues).
It is an imperfect solution -- offered in the spirit of compromise, not as a canonically correct exposition of principle.
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: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA06 6684
-----Original Message----- From: Mueller, Milton L [mailto:milton@gatech.edu] Sent: Wednesday, September 13, 2017 10:22 AM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; ws2-jurisdiction@icann.org Subject: RE: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law
Very interesting post Paul. But, are you agreeing or disagreeing with the "menu" being based on regions? If you are agreeing, then how do we avoid this problem:
And we cannot, from an accountability perspective, want a world in which there are inconsistent results and how a contract provision is enforced depends on whether the suit is brought in Europe or in Asia. That type of uncertainty is also the enemy of accountability. Thus, I disagree with the submission that the presumption should be that the law of the registry apply to the agreement. That way lies chaos.
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--
Raphaël Beauregard-Lacroix
LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
-- Raphaël Beauregard-Lacroix LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
Dear all, I also think that Bekie's idea is interesting and worth pursuing. A registry or registrar in contracts with ICANN should have the possibility to choose jurisdiction in California or in the ICANN region they belong to of their choice - ideally, there should be several possibilities for "regional jurisdiction, so e.g. European registries and registrars could choose between Swiss, Dutch or Danish or some other law. Best, Finn Fra: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] På vegne af Schweighofer Erich Sendt: 11. september 2017 07:20 Til: Kavouss Arasteh; Burr, Becky; ws2-jurisdiction Emne: Re: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law Dear all, I would support Beck Burr. It makes good sense to recommand regional arbitration courts that know the ICANN system and are established in jurisdictions with only necessary interference in arbitation (e.g. due process, transparency, rule of law). Best, Erich Von: Kavouss Arasteh<mailto:kavouss.arasteh@gmail.com> Gesendet: Montag, 11. September 2017 07:12 An: Burr, Becky<mailto:Becky.Burr@team.neustar>; ws2-jurisdiction<mailto:ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law Dear Beckie Thanks for your views to which I totally disagree as a) thgere is no regional jurisdiction and b) there is no agreed definition of region. It is Strange that such a competent person like you taking about Something which does not exist t and can not exist as region is a term totally subjdective and can in no way be used for jurisdiction Kavouss On Thu, Sep 7, 2017 at 1:55 PM, Burr, Becky via Ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> wrote: FWIW, punitive damages are not usually permitted in contract disputes - I wonder why ICANN includes them at all. Also, rather than requiring ICANN to agree to submit to the jurisdiction of every country where it has a relationship with a registry or registrar, is it worth considering regional jurisdiction? Contracts with European registries and registrars could specify Swiss or Dutch or some other law, etc.? J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW DC 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 Follow Neustar: LinkedIn / Twitter Reduce your environmental footprint. Print only if necessary. ________________________________ The information contained in this email message is intended only for the use of the recipient(s) named above and may contain confidential and/or privileged information. If you are not the intended recipient you have received this email message in error and any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately and delete the original message. From: <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>" <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> Date: Wednesday, September 6, 2017 at 4:19 PM To: "ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>" <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Subject: [EXTERNAL] [Ws2-jurisdiction] issues on applicable law Dear all, Here are, for your convenience, the two issues I have tried to briefly explain during today's conference call, for your consideration. As said, the main thought is to reduce uncertainty, and clarify that the parties to the registry agreements have an effective freedom to choose the applicable law and to apply a principle of subsidiarity that may reduce potential conflicts with the national laws where they are based. == 1. Issue: The law applicable to the Registry Agreement has been identified as being the main issue: The Registry Agreement contains no provision relative to the choice of jurisdiction, the applicable law consequently not being defined by the Agreement. This creates great legal uncertainty and a potential issue as regards the jurisdiction given that it would be the prerogative of the arbitrators or the judges having jurisdiction -who could come from a US Court- to determine what law governs the relationship between ICANN and the registry. Pursuant to the current business practice, the applicable law is that of the party that provides the service in question, i.e. ICANN, a priori. A registry should therefore expect the potentially applicable law to be the law of the State of California. The applicable law further determines the faculty of ICANN to claim punitive or exemplary damages (i.e. under US law, damages highly surpassing the damage actually suffered, in order to punish a behavior), in the event the registry were to breach the contract in a deliberate and repeated manner (section 5.2 of the Registry Agreement.) This well-established institution of Common Law is non-existent under Swiss law, which follows the principle of compensation (damages are used to repair the damage but cannot enrich the claimant,) and should be considered to be contrary to public order. Were the Swiss law to apply to the Agreement, such damages would not be granted. Following the principles of the institutions typical to the Common Law provided for in the Registry Agreement poses issues of compatibility with other legal orders and suggests that Californian law would -a priori- apply to the Registry Agreement. Possible solutions: The applicable law should be determined on the basis of the legitimate expectations which the parties may have in terms of applicable law. It is understandable and appropriate that the fundamental provisions or duties contained in the Registry Agreement should apply equally to all registries around the world and be therefore interpreted in a uniform way. Beyond a few provisions and duties which are absolutely fundamental, it would be judicious and consistent with a legitimate expectation that the contractual relationship between ICANN and a registry be subject to the national law of the latter. The foregoing is all the more reasonable given that the manager of a generic domain (TLD) is delegated broad powers, as it is within its scope to establish the purpose of the domain, the eligibility, or the terms of the assignment of domain names, not to mention that it has great freedom as to the way in which a domain is actually managed. There already exist special provisions for registries that are IGO/Governmental entities (section 7.16 registry agreement): if international law is at stake, there is a procedure (mediation and arbitration ex 5.2.) to resolve disputes between the registry and ICANN - this special provision could be extended: - To other registries that are not IGOs/Public authorities - To cover not only "international law obligations" but also national law obligations 2. Issue: arbitration clause With regard to territorial jurisdiction, the arbitration clause (section 5.2 of the Registry Agreement entitled "Arbitration text for intergovernmental organizations or governmental entities") has allowed the ".swiss" registry to submit itself to the arbitration of the International Court of Arbitration of the International Chamber of Commerce in Geneva, Switzerland. This provision also provides for some flexibilities restricted to IGOs or governmental entities as regards the competent court. However these flexibilities are not open to all registry operators. Possible solutions: It would be wise in our opinion: - to also allow private registries to decide on the choice of their arbitration/competent court; - to broaden the possibilities of choice for all registries (by principle, to choose an arbitration recognized in each country.) == Hope this may be considered. Regards Jorge Jorge Cancio International Relations Federal Department of the Environment, Transport, Energy and Communications DETEC Federal Office of Communications OFCOM Zukunftstrasse 44, CH 2501 Biel Tel. +41 58 460 54 58 (direct) Tel. +41 32 327 55 11 (office) Fax +41 58 460 54 66 mailto: jorge.cancio@bakom.admin.ch<mailto:mailto:%20jorge.cancio@bakom.admin.ch> www.bakom.admin.ch<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.bakom.admin.ch_&d=Dw...> [cid:image001.png@01D2F585.7A604270] Igf2017.swiss<https://urldefense.proofpoint.com/v2/url?u=https-3A__igf2017.swiss_&d=DwMFAg...> info@igf2017.swiss<mailto:info@igf2017.swiss> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
All, As many of you are already aware, ICANN does in fact have defined "Geographic Regions," and has had these in place since at least 2000. These are widely used in various ICANN processes. These are currently enshrined and defined as "Geographic Regions" in Section 7.5 of the ICANN Bylaws. https://www.icann.org/resources/pages/governance/bylaws-en/#article7 Section 7.5 reads, in pertinent part: As used in these Bylaws, each of the following is considered to be a "*Geographic Region*": (a) Europe; (b) Asia/Australia/Pacific; (c) Latin America/Caribbean islands; (d) Africa; and (e) North America. The specific countries included in each Geographic Region shall be determined by the Board, and this *Section 7.5* shall be reviewed by the Board from time to time (and in any event at least once every three years) to determine whether any change is appropriate, taking account of the evolution of the Internet. These were most recently studied in a CCWG, which issued a report in 2015, after 4 years of work. https://www.icann.org/public-comments/geo-regions-2015-12-23-en A list of countries, with their corresponding ICANN Geographic Regions, may be found here: https://meetings.icann.org/en/regions (I assume they may be found elsewhere, as well, but this is where I found them). While these groupings may be considered "subjective" (and the CCWG's Final Report discusses this point), I don't think it can be said that "there is no agreed definition of region" for ICANN purposes. I hope this information helps ground the discussion in fact. Best regards, Greg On Mon, Sep 11, 2017 at 6:15 AM, Finn Petersen <FinPet@erst.dk> wrote:
Dear all,
I also think that Bekie's idea is interesting and worth pursuing. A registry or registrar in contracts with ICANN should have the possibility to choose jurisdiction in California or in the ICANN region they belong to of their choice - ideally, there should be several possibilities for “regional jurisdiction, so e.g. European registries and registrars could choose between Swiss, Dutch or Danish or some other law.
Best,
Finn
*Fra:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org] *På vegne af *Schweighofer Erich *Sendt:* 11. september 2017 07:20 *Til:* Kavouss Arasteh; Burr, Becky; ws2-jurisdiction *Emne:* Re: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law
Dear all,
I would support Beck Burr. It makes good sense to recommand regional arbitration courts that know the ICANN system and are established in jurisdictions with only necessary interference in arbitation (e.g. due process, transparency, rule of law).
Best,
Erich
*Von: *Kavouss Arasteh <kavouss.arasteh@gmail.com> *Gesendet: *Montag, 11. September 2017 07:12 *An: *Burr, Becky <Becky.Burr@team.neustar>; ws2-jurisdiction <ws2-jurisdiction@icann.org> *Betreff: *Re: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law
Dear Beckie
Thanks for your views to which I totally disagree as a) thgere is no regional jurisdiction and b) there is no agreed definition of region. It is Strange that such a competent person like you taking about Something which does not exist t and can not exist as region is a term totally subjdective and can in no way be used for jurisdiction
Kavouss
On Thu, Sep 7, 2017 at 1:55 PM, Burr, Becky via Ws2-jurisdiction < ws2-jurisdiction@icann.org> wrote:
FWIW, punitive damages are not usually permitted in contract disputes – I wonder why ICANN includes them at all.
Also, rather than requiring ICANN to agree to submit to the jurisdiction of every country where it has a relationship with a registry or registrar, is it worth considering regional jurisdiction? Contracts with European registries and registrars could specify Swiss or Dutch or some other law, etc.?
*J. Beckwith Burr* *Neustar, Inc.* / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW DC 20006 *Office:* +1.202.533.2932 <(202)%20533-2932> *Mobile:* +1.202.352.6367 <(202)%20352-6367>
*Follow Neustar:* LinkedIn */* Twitter Reduce your environmental footprint. Print only if necessary. ------------------------------
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*From: *<ws2-jurisdiction-bounces@icann.org> on behalf of " Jorge.Cancio@bakom.admin.ch" <Jorge.Cancio@bakom.admin.ch> *Date: *Wednesday, September 6, 2017 at 4:19 PM *To: *"ws2-jurisdiction@icann.org" <ws2-jurisdiction@icann.org> *Subject: *[EXTERNAL] [Ws2-jurisdiction] issues on applicable law
Dear all,
Here are, for your convenience, the two issues I have tried to briefly explain during today’s conference call, for your consideration.
As said, the main thought is to reduce uncertainty, and clarify that the parties to the registry agreements have an effective freedom to choose the applicable law and to apply a principle of subsidiarity that may reduce potential conflicts with the national laws where they are based.
==
1. *Issue: *The law applicable to the Registry Agreement has been identified as being the main issue:
The Registry Agreement contains no provision relative to the choice of jurisdiction, the applicable law consequently not being defined by the Agreement.
This creates great legal uncertainty and a potential issue as regards the jurisdiction given that it would be the prerogative of the arbitrators or the judges having jurisdiction -who could come from a US Court- to determine what law governs the relationship between ICANN and the registry.
Pursuant to the current business practice, the applicable law is that of the party that provides the service in question, i.e. ICANN, a priori. A registry should therefore expect the potentially applicable law to be the law of the State of California.
The applicable law further determines the faculty of ICANN to claim punitive or exemplary damages (i.e. under US law, damages highly surpassing the damage actually suffered, in order to punish a behavior), in the event the registry were to breach the contract in a deliberate and repeated manner (section 5.2 of the Registry Agreement.) This well-established institution of Common Law is non-existent under Swiss law, which follows the principle of compensation (damages are used to repair the damage but cannot enrich the claimant,) and should be considered to be contrary to public order. Were the Swiss law to apply to the Agreement, such damages would not be granted. Following the principles of the institutions typical to the Common Law provided for in the Registry Agreement poses issues of compatibility with other legal orders and suggests that Californian law would -a priori- apply to the Registry Agreement.
*Possible solutions:*
The applicable law should be determined on the basis of the legitimate expectations which the parties may have in terms of applicable law. It is understandable and appropriate that the fundamental provisions or duties contained in the Registry Agreement should apply equally to all registries around the world and be therefore interpreted in a uniform way.
Beyond a few provisions and duties which are absolutely fundamental, it would be judicious and consistent with a legitimate expectation that the contractual relationship between ICANN and a registry be subject to the national law of the latter. The foregoing is all the more reasonable given that the manager of a generic domain (TLD) is delegated broad powers, as it is within its scope to establish the purpose of the domain, the eligibility, or the terms of the assignment of domain names, not to mention that it has great freedom as to the way in which a domain is actually managed.
There already exist special provisions for registries that are IGO/Governmental entities (section 7.16 registry agreement): if international law is at stake, there is a procedure (mediation and arbitration ex 5.2.) to resolve disputes between the registry and ICANN – this special provision could be extended:
- To other registries that are not IGOs/Public authorities
- To cover not only “international law obligations” but also national law obligations
2. *Issue: **arbitration clause*
With regard to territorial jurisdiction, the arbitration clause (section 5.2 of the Registry Agreement entitled "Arbitration text for intergovernmental organizations or governmental entities") has allowed the ".swiss" registry to submit itself to the arbitration of the International Court of Arbitration of the International Chamber of Commerce in Geneva, Switzerland. This provision also provides for some flexibilities restricted to IGOs or governmental entities as regards the competent court.
However these flexibilities are not open to all registry operators.
*Possible solutions:*
It would be wise in our opinion:
- to also allow private registries to decide on the choice of their arbitration/competent court;
- to broaden the possibilities of choice for all registries (by principle, to choose an arbitration recognized in each country.)
==
Hope this may be considered.
Regards
Jorge
*Jorge Cancio *
International Relations
Federal Department of the Environment, Transport, Energy and Communications DETEC
Federal Office of Communications OFCOM
Zukunftstrasse 44, CH 2501 Biel
Tel. +41 58 460 54 58 <+41%2058%20460%2054%2058> (direct)
Tel. +41 32 327 55 11 <+41%2032%20327%2055%2011> (office)
Fax +41 58 460 54 66 <+41%2058%20460%2054%2066>
mailto: jorge.cancio@bakom.admin.ch
www.bakom.admin.ch <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.bakom.admin.ch_&d=Dw...>
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info@igf2017.swiss
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Dear All For the reasons given I equally disagree with with Erich Regards Kavouss Sent from my iPhone
On 11 Sep 2017, at 09:49, Schweighofer Erich <erich.schweighofer@univie.ac.at> wrote:
Dear all,
I would support Beck Burr. It makes good sense to recommand regional arbitration courts that know the ICANN system and are established in jurisdictions with only necessary interference in arbitation (e.g. due process, transparency, rule of law).
Best, Erich
Von: Kavouss Arasteh Gesendet: Montag, 11. September 2017 07:12 An: Burr, Becky; ws2-jurisdiction Betreff: Re: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law
Dear Beckie Thanks for your views to which I totally disagree as a) thgere is no regional jurisdiction and b) there is no agreed definition of region. It is Strange that such a competent person like you taking about Something which does not exist t and can not exist as region is a term totally subjdective and can in no way be used for jurisdiction Kavouss
On Thu, Sep 7, 2017 at 1:55 PM, Burr, Becky via Ws2-jurisdiction <ws2-jurisdiction@icann.org> wrote: FWIW, punitive damages are not usually permitted in contract disputes – I wonder why ICANN includes them at all.
Also, rather than requiring ICANN to agree to submit to the jurisdiction of every country where it has a relationship with a registry or registrar, is it worth considering regional jurisdiction? Contracts with European registries and registrars could specify Swiss or Dutch or some other law, etc.?
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW DC 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367
Follow Neustar: LinkedIn / Twitter Reduce your environmental footprint. Print only if necessary.
The information contained in this email message is intended only for the use of the recipient(s) named above and may contain confidential and/or privileged information. If you are not the intended recipient you have received this email message in error and any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately and delete the original message.
From: <ws2-jurisdiction-bounces@icann.org> on behalf of "Jorge.Cancio@bakom.admin.ch" <Jorge.Cancio@bakom.admin.ch> Date: Wednesday, September 6, 2017 at 4:19 PM To: "ws2-jurisdiction@icann.org" <ws2-jurisdiction@icann.org> Subject: [EXTERNAL] [Ws2-jurisdiction] issues on applicable law
Dear all,
Here are, for your convenience, the two issues I have tried to briefly explain during today’s conference call, for your consideration.
As said, the main thought is to reduce uncertainty, and clarify that the parties to the registry agreements have an effective freedom to choose the applicable law and to apply a principle of subsidiarity that may reduce potential conflicts with the national laws where they are based.
==
1. Issue: The law applicable to the Registry Agreement has been identified as being the main issue:
The Registry Agreement contains no provision relative to the choice of jurisdiction, the applicable law consequently not being defined by the Agreement.
This creates great legal uncertainty and a potential issue as regards the jurisdiction given that it would be the prerogative of the arbitrators or the judges having jurisdiction -who could come from a US Court- to determine what law governs the relationship between ICANN and the registry.
Pursuant to the current business practice, the applicable law is that of the party that provides the service in question, i.e. ICANN, a priori. A registry should therefore expect the potentially applicable law to be the law of the State of California.
The applicable law further determines the faculty of ICANN to claim punitive or exemplary damages (i.e. under US law, damages highly surpassing the damage actually suffered, in order to punish a behavior), in the event the registry were to breach the contract in a deliberate and repeated manner (section 5.2 of the Registry Agreement.) This well-established institution of Common Law is non-existent under Swiss law, which follows the principle of compensation (damages are used to repair the damage but cannot enrich the claimant,) and should be considered to be contrary to public order. Were the Swiss law to apply to the Agreement, such damages would not be granted. Following the principles of the institutions typical to the Common Law provided for in the Registry Agreement poses issues of compatibility with other legal orders and suggests that Californian law would -a priori- apply to the Registry Agreement.
Possible solutions:
The applicable law should be determined on the basis of the legitimate expectations which the parties may have in terms of applicable law. It is understandable and appropriate that the fundamental provisions or duties contained in the Registry Agreement should apply equally to all registries around the world and be therefore interpreted in a uniform way.
Beyond a few provisions and duties which are absolutely fundamental, it would be judicious and consistent with a legitimate expectation that the contractual relationship between ICANN and a registry be subject to the national law of the latter. The foregoing is all the more reasonable given that the manager of a generic domain (TLD) is delegated broad powers, as it is within its scope to establish the purpose of the domain, the eligibility, or the terms of the assignment of domain names, not to mention that it has great freedom as to the way in which a domain is actually managed.
There already exist special provisions for registries that are IGO/Governmental entities (section 7.16 registry agreement): if international law is at stake, there is a procedure (mediation and arbitration ex 5.2.) to resolve disputes between the registry and ICANN – this special provision could be extended:
- To other registries that are not IGOs/Public authorities
- To cover not only “international law obligations” but also national law obligations
2. Issue: arbitration clause
With regard to territorial jurisdiction, the arbitration clause (section 5.2 of the Registry Agreement entitled "Arbitration text for intergovernmental organizations or governmental entities") has allowed the ".swiss" registry to submit itself to the arbitration of the International Court of Arbitration of the International Chamber of Commerce in Geneva, Switzerland. This provision also provides for some flexibilities restricted to IGOs or governmental entities as regards the competent court.
However these flexibilities are not open to all registry operators.
Possible solutions:
It would be wise in our opinion:
- to also allow private registries to decide on the choice of their arbitration/competent court;
- to broaden the possibilities of choice for all registries (by principle, to choose an arbitration recognized in each country.)
==
Hope this may be considered.
Regards
Jorge
Jorge Cancio
International Relations Federal Department of the Environment, Transport, Energy and Communications DETEC Federal Office of Communications OFCOM Zukunftstrasse 44, CH 2501 Biel Tel. +41 58 460 54 58 (direct) Tel. +41 32 327 55 11 (office) Fax +41 58 460 54 66 mailto: jorge.cancio@bakom.admin.ch www.bakom.admin.ch
Igf2017.swiss info@igf2017.swiss
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
participants (13)
-
Arasteh -
Burr, Becky -
Finn Petersen -
Greg Shatan -
Jorge.Cancio＠bakom.admin.ch -
Kavouss Arasteh
-
Mike Rodenbaugh -
Mueller, Milton L -
Nigel Roberts -
Paul Rosenzweig -
Phil Corwin -
Raphaël BEAUREGARD-LACROIX -
Schweighofer Erich