Draft (long) question on notions of presence and jurisdiction
Greg asked if I would put together a possible question to legal counsel regarding a point I made during our last call about the likelihood that notions of jurisdiction for litigation and the related importance of physical presence may be changing in the digital age. I have attempted to do that below, in language that became longer than expected in trying to add good context. I believe that this is a matter that we may look at as a subgroup and so offer this draft for our consideration - for tweaking/changing/shortening as we see fit - and deciding if we wish to pose such a query at all. I ask some internal questions to us in red italics in parentheses. Best regards, David David McAuley International Policy Manager Verisign Inc. 703-948-4154 DRAFT QUERY: The Work Stream 2 subgroup on jurisdiction requests legal advice as described in this note. We have been working on the premise that ICANN (incorporated as a nonprofit company in California) is subject to litigation in the countries where it has these presences: * Hub offices: o USA o Turkey o Singapore * Engagement offices: o China o Belgium o Switzerland o Uruguay o Kenya o Republic of Korea We believe it would be useful for us to know whether jurisdiction against ICANN in (civil, criminal, do we care) litigation could be maintained elsewhere. There are generally three aspects to our interest. First, there are countries other than those listed above where ICANN employees reside and "work from home" for the most part - being paid by ICANN in the employee's local currency. (Is this correct? Also, is ICANN 'registered' anywhere else than where it has an office?) Second are countries where ICANN has had no physical presence like those above but has held one or more formal ICANN meetings (like ICANN 57 in Hyderabad, India) which are significant to ICANN's multistakeholder operations. And then there are countries where ICANN has had no physical presence at all. We note that in its Articles of Incorporation<https://www.icann.org/resources/pages/governance/articles-en> ICANN states, among other things, that it shall promote the global public interest in the operational stability of the Internet and that it will operate for the benefit of the Internet community as a whole, carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law. And we note that in its Bylaws<https://www.icann.org/resources/pages/governance/bylaws-en> ICANN commits, among other things, to operate for the benefit of the Internet community as a whole, carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law. We generally understand that in many places jurisdiction for litigation is premised on physical presence in some manner. But we wonder whether in the digital age the concept of "targeting" can be used as a basis for litigation jurisdiction. In other words we wonder whether a party, based where ICANN has no office, could successfully maintain a lawsuit against ICANN in a local court based on the argument that ICANN targeted them improperly for some action. We are looking for general advice rather than a country-by-country analysis, being interested in trends and reasonable probability and not legal certainty at this point (this relates to cost/effort - how do we wish to control this).
David, Thank you so much for this draft. I think it captures the general spirit of the question very well. My only suggestion would be to ensure we also get feedback from the lawyers on whether they agree with the premise you mention at the beginning of the note (premise that ICANN (incorporated as a nonprofit company in California) is subject to litigation in the countries where it has these presences) Best Mathieu De : ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] De la part de McAuley, David Envoyé : vendredi 27 janvier 2017 16:42 À : ws2-jurisdiction@icann.org Objet : [Ws2-jurisdiction] Draft (long) question on notions of presence and jurisdiction Greg asked if I would put together a possible question to legal counsel regarding a point I made during our last call about the likelihood that notions of jurisdiction for litigation and the related importance of physical presence may be changing in the digital age. I have attempted to do that below, in language that became longer than expected in trying to add good context. I believe that this is a matter that we may look at as a subgroup and so offer this draft for our consideration for tweaking/changing/shortening as we see fit - and deciding if we wish to pose such a query at all. I ask some internal questions to us in red italics in parentheses. Best regards, David David McAuley International Policy Manager Verisign Inc. 703-948-4154 DRAFT QUERY: The Work Stream 2 subgroup on jurisdiction requests legal advice as described in this note. We have been working on the premise that ICANN (incorporated as a nonprofit company in California) is subject to litigation in the countries where it has these presences: · Hub offices: o USA o Turkey o Singapore · Engagement offices: o China o Belgium o Switzerland o Uruguay o Kenya o Republic of Korea We believe it would be useful for us to know whether jurisdiction against ICANN in (civil, criminal, do we care) litigation could be maintained elsewhere. There are generally three aspects to our interest. First, there are countries other than those listed above where ICANN employees reside and work from home for the most part being paid by ICANN in the employees local currency. (Is this correct? Also, is ICANN registered anywhere else than where it has an office?) Second are countries where ICANN has had no physical presence like those above but has held one or more formal ICANN meetings (like ICANN 57 in Hyderabad, India) which are significant to ICANNs multistakeholder operations. And then there are countries where ICANN has had no physical presence at all. We note that in its Articles of Incorporation <https://www.icann.org/resources/pages/governance/articles-en> ICANN states, among other things, that it shall promote the global public interest in the operational stability of the Internet and that it will operate for the benefit of the Internet community as a whole, carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law. And we note that in its Bylaws <https://www.icann.org/resources/pages/governance/bylaws-en> ICANN commits, among other things, to operate for the benefit of the Internet community as a whole, carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law. We generally understand that in many places jurisdiction for litigation is premised on physical presence in some manner. But we wonder whether in the digital age the concept of targeting can be used as a basis for litigation jurisdiction. In other words we wonder whether a party, based where ICANN has no office, could successfully maintain a lawsuit against ICANN in a local court based on the argument that ICANN targeted them improperly for some action. We are looking for general advice rather than a country-by-country analysis, being interested in trends and reasonable probability and not legal certainty at this point (this relates to cost/effort how do we wish to control this).
participants (2)
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Mathieu Weill -
McAuley, David