ISSUE: US Jurisdiction over ICANN's activities that comply with GAC advice or that are otherwise based on powers or prerogatives recognised onto Governments under ICANN's multistakeholder governance model
Dear All, For your consideration: Issue 2: Jurisdiction over ICANN's activities that comply with GAC advice or that are otherwise based on powers or prerogatives recognised onto Governments under ICANN's multistakeholder governance model Description: The courts of ICANN's place of incorporation are in a unique position to both exercise jurisdiction and enforce judgments (i.e. jurisdiction to prescribe and, more importantly, exclusive enforcement jurisdiction) over disputes in respect of the management of domain names opposing ICANN to some allegedly aggrieved party (for example, a dispute over ICANN's rejection of an application for new gTLDs), based on the "localisation" of the "act complained of" and the "act to be enforced" (i.e. all relating to the management of the root zone by ICANN, which has been said to take place in the territory of the country of incorporation and is subject to the exclusive territorial jurisdiction of that country). These disputes, however, may relate to ICANN's activities that have been the subject of GAC advice or are otherwise based on powers recognised onto Governments according to ICANN's laws (for example, the disputed act may have been prompted by ICANN's decision to follow GAC advice). Activities that have been the subject of GAC advice or of Governmental authority as recognized under ICANN's laws involve public policy issues that are for Governments to act upon on an equal footing. Their settlement should be through agreed dispute settlement mechanisms according to agreed rules, and they should not be subject to the courts of any country nor, for that matter, to the courts of the country of incorporation. Independent accountability mechanisms for review of ICANN's actions will remain in place, and there shall be provision for arbitration in substitution for local courts. Proposed solution: ICANN shall establish a compulsory dispute settlement mechanism, or commit to have recourse to international arbitration, for disputes relating to ICANN's activities that have been the subject of GAC advice or are otherwise subject to Governmental authority as recognized under ICANN's laws. Once a compulsory dispute settlement mechanism has been agreed for such disputes, ICANN shall seek jurisdictional immunities from the local courts in their respect. In addition, ICANN should include in its agreements an exclusive choice of forum clause, whereby disputes relating to ICANN's activities that have been the subject of GAC advice or that are otherwise subject to Governmental authority as recognized under ICANN's laws shall be settled exclusively through recourse to arbitration. With respect to arbitration in such cases, ICANN shall commit to exercise its party's right to appoint arbitrators in consultation with the GAC or the Governments concerned. Dispute as to whether the GAC or Governments are entitled to exercise powers recognized under ICANN's laws in respect to a given subject, shall be settled through the agreed and compulsory dispute settlement mechanism referred to above, and it should involve the interested parties and the GAC or the Governments concerned. Best regards, Thiago
Thiago If I understand what you are saying here, I have to totally reject it, and I suspect most others in this group will. What you seem to be saying here: Proposed solution: ICANN shall establish a compulsory dispute settlement mechanism, or commit to have recourse to international arbitration, for disputes relating to ICANN's activities that have been the subject of GAC advice or are otherwise subject to Governmental authority as recognized under ICANN's laws. ...is that GAC advice should supersede the normal ICANN bottom up multistakeholder policy development process (BUMP) and be subject to a special dispute resolution procedure that applies to ICANN and GAC alone. This is a brazen power play to redesign ICANN in a way that transforms it into an intergovernmental institution. It ain't ever going to happen, Thiago, except perhaps in your dreams. Let me add that "independent accountability mechanisms" such as the IRP and the empowered community process already exist and no changes need to me made based on jurisdictional issues. Those mechanisms are not subject to arbitrary interference from the USG based on ICANN's jurisdiction.
Dear Milton, Thank you very much for your reply and comments, which I take as constructive. The idea behind the proposal for recommending the creation of a dispute settlement mechanism, in the ways I suggested, was to ensure that there are accountability mechanisms applicable to ICANN's activities that are to become immune from local courts, according to the other part of the proposal, which I hope you do not object to. My main concern, precisely, was to propose a solution that meets ICANN's accountability goals, namely by coupling, on the one hand, the necessary immunity from US jurisdiction of ICANN's activities that are subject of GAC advice with, on the other hand, the provision of a compulsory and independent substitute for US courts. But to the extent that ICANN's existing dispute settlement mechanisms are satisfactory, and I trust you are right, there will indeed be no need to recommend that ICANN establishes new such mechanisms, whose creation, in any case, I agree should result from a bottom-up multi-stakeholder policy development process. Please be assured of my willingness to come to solutions that enhance ICANN's accountability to the global community, whereby no single individual stakeholder, group or country has the power to unilaterally impact on the operation of ICANN's public global activities. It is indeed with this spirit that the proposal I submitted, and willingly amend and clarify in view of your remarks, is aimed primarily at recommending that ICANN seeks jurisdictional immunity in respect of the public policy activities it performs in pursuance of GAC advice, so that the courts of no single country, individually, sit in judgment over ICANN's activities that actively involve (all) other countries. The settlement of disputes relating to these activities, in turn, would be left to ICANN's own dispute settlement mechanisms, whose outcome should not be interfered with by domestic courts. Best regards, Thiago ________________________________ De: Mueller, Milton L [milton@gatech.edu] Enviado: terça-feira, 22 de agosto de 2017 18:47 Para: Thiago Braz Jardim Oliveira; ws2-jurisdiction Assunto: RE: [Ws2-jurisdiction] ISSUE: US Jurisdiction over ICANN's activities that comply with GAC advice or that are otherwise based on powers or prerogatives recognised onto Governments under ICANN's multistakeholder governance model Thiago If I understand what you are saying here, I have to totally reject it, and I suspect most others in this group will. What you seem to be saying here: Proposed solution: ICANN shall establish a compulsory dispute settlement mechanism, or commit to have recourse to international arbitration, for disputes relating to ICANN's activities that have been the subject of GAC advice or are otherwise subject to Governmental authority as recognized under ICANN's laws. …is that GAC advice should supersede the normal ICANN bottom up multistakeholder policy development process (BUMP) and be subject to a special dispute resolution procedure that applies to ICANN and GAC alone. This is a brazen power play to redesign ICANN in a way that transforms it into an intergovernmental institution. It ain’t ever going to happen, Thiago, except perhaps in your dreams. Let me add that “independent accountability mechanisms” such as the IRP and the empowered community process already exist and no changes need to me made based on jurisdictional issues. Those mechanisms are not subject to arbitrary interference from the USG based on ICANN’s jurisdiction.
Dear All People could only express their own views and refrain manipulating in a indirect manner to comment on any thread Regards Kavouss Sent from my iPhone
On 22 Aug 2017, at 23:47, Mueller, Milton L <milton@gatech.edu> wrote:
Thiago If I understand what you are saying here, I have to totally reject it, and I suspect most others in this group will. What you seem to be saying here:
Proposed solution: ICANN shall establish a compulsory dispute settlement mechanism, or commit to have recourse to international arbitration, for disputes relating to ICANN's activities that have been the subject of GAC advice or are otherwise subject to Governmental authority as recognized under ICANN's laws.
…is that GAC advice should supersede the normal ICANN bottom up multistakeholder policy development process (BUMP) and be subject to a special dispute resolution procedure that applies to ICANN and GAC alone.
This is a brazen power play to redesign ICANN in a way that transforms it into an intergovernmental institution. It ain’t ever going to happen, Thiago, except perhaps in your dreams.
Let me add that “independent accountability mechanisms” such as the IRP and the empowered community process already exist and no changes need to me made based on jurisdictional issues. Those mechanisms are not subject to arbitrary interference from the USG based on ICANN’s jurisdiction.
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participants (3)
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Arasteh -
Mueller, Milton L -
Thiago Braz Jardim Oliveira