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<font face="Verdana">Are you saying that it is not possible for
ICANN to undertake </font>the functions that it needs to
undertake while being an international institution incorporated
under international law, and free from any countries jurisdiction <i>i</i><i>n
terms of its basic governance functions</i>? I just want to be
clear.<br>
<br>
If so, that would be an interesting assertion. Now, I am sure this
is not true. However, I am not an international legal expert and not
able to right now build and present the whole scenario for you on
how it can be done. I am sure there are a number of international
organisations that do different kind of complex activities and have
found ways to do it under international law and jurisdiction. And if
some new directions and evolutions are needed that can also be
worked out (please see my last email on this count).<br>
<br>
BTW it is a sad statement on the geo political economy of knowledge
production in this area that there is not one full fledged scenario
developed by anyone on how ICANN can undertakes its activities under
international law/ jurisdiction - which I am pretty sure it can.
Many parties, including governments have called for it, and yes I
agree someone should come up with a full politico-legal and
institutional description of how it can and should be done - with
all the details in place. And that is the sad part of it, of how
things stand at the global level, had now lopsided is resource
distribution, all kinds of resources. <br>
<br>
Not to shy away from responsibility - I am happy to collaborate with
anyone if someone can out time into it. <br>
<br>
And no, it cannot be solved by any other country jurisdiction. Apart
from it being still being wrong in principle, how would US accept
that another jurisdiction is better than its own and accede to such
a change. Accepting the patently justified fact that an
international infrastructure should be governed internationally, on
the other hand, is much easier .<br>
<br>
parminder <br>
<br>
<div class="moz-cite-prefix">On Tuesday 09 June 2015 07:31 PM,
Michael Froomkin - U.Miami School of Law wrote:<br>
</div>
<blockquote
cite="mid:alpine.LRH.2.00.1506090955160.12194@post.law.miami.edu"
type="cite">I don't know what it means to say that ICANN should be
subject to "international jurisdiction and law". For the relevant
issues, that sounds like a pretty empty set.
<br>
<br>
As regards most of the sort of things one might expect to worry
about - e.g. fidelity to articles of incorporation - international
law is basically silent. And there is no relevant jurisdiction
either. So I remain stuck in the position that there must be a
state anchor whose courts are given the job. It does not of
course need to be the US, although I would note that the US courts
are by international standards not shy and actually fairly good at
this sort of thing.
<br>
<br>
I do think, however, that it should NOT be Switzerland, as its
courts are historically over-deferential to international bodies -
perhaps as part of state policy to be an attractive location for
those high-spending international meetings.
<br>
<br>
I'd be real happy with Canada, though.
<br>
<br>
On Tue, 9 Jun 2015, parminder wrote:
<br>
<br>
<blockquote type="cite">
<br>
<br>
On Tuesday 09 June 2015 06:26 PM, Michael Froomkin - U.Miami
School of Law wrote:
<br>
<br>
I think that bodies which do not need to fear supervision
by legitimate courts end up
<br>
like FIFA. FIFA had a legal status in Switzerland that
basically insulated it the way
<br>
that the Brazilian document seems to suggest would be what
they want for ICANN. (It's
<br>
also the legal status ICANN has at times suggested it
would like.)
<br>
<br>
The lesson of history seems unusually clear here.
<br>
<br>
<br>
Agree that ICANN cannot be left jurisdictionally un-supervised -
that may be even more dangerous
<br>
than the present situation. However, the right supervision or
oversight is of international
<br>
jurisdiction and law, not that of the US . This is what Brazil
has to make upfront as the
<br>
implication of what it is really seeking, and its shyness and
reticence to say so is what I noted as
<br>
surprising in an earlier email in this thread. Not putting out
clearly what exactly it wants would
<br>
lead to misconceptions about its position, which IMHO can be
seen from how Michael reads it. I am
<br>
sure this is not how Brazil meant it - to free ICANN from all
kinds of jurisdictional oversight
<br>
whatsoever - but then Brazil needs to say clearly what is it
that it wants, and how can it can
<br>
obtained. Brazil, please come out of your NetMundial hangover
and take political responsibility for
<br>
what you say and seek!
<br>
<br>
parminder
<br>
<br>
<br>
<br>
On Tue, 9 Jun 2015, Mawaki Chango wrote:
<br>
<br>
<br>
It's good to see a law scholar involved in this
discussion. I'll leave it to
<br>
the Brazilian party to
<br>
ultimate tell whether your reading is correct or
not. In the meantime I'd
<br>
volunteer the following
<br>
comments.
<br>
<br>
On Jun 8, 2015 10:46 PM, "Michael Froomkin - U.Miami
School of Law"
<br>
<a class="moz-txt-link-rfc2396E" href="mailto:froomkin@law.miami.edu"><froomkin@law.miami.edu></a> wrote:
<br>
>
<br>
> Perhaps I'm misreading something, but I read
this document to make the
<br>
following assertions:
<br>
>
<br>
> 1. All restrictions on ICANN's location must be
removed.
<br>
>
<br>
<br>
And the question reopened for deliberation by all
stakeholders, including
<br>
governments among others.
<br>
Only the outcome of such deliberation will be fully
legitimate within the
<br>
framework of the post-2015
<br>
ICANN.
<br>
<br>
> 2. ICANN does not have to leave the US but must
be located in a place
<br>
where the governing law has
<br>
certain characteristics, including not having the
possibiliity that courts
<br>
overrule ICANN (or at
<br>
least the IRP).
<br>
>
<br>
> (And, as it happens, the US is not such a
place....)
<br>
>
<br>
<br>
Not only avoiding courts overruling relevant
outcomes of the Internet global
<br>
community processes,
<br>
but also examining and resolving the possible
interferences/conflicts that
<br>
might arise for
<br>
government representatives being subject to a
foreign country law simply in
<br>
the process of attending
<br>
to their regular duties (if they were to be fully
engaged with ICANN).
<br>
<br>
Quote:
<br>
"From the Brazilian perspective the existing structure clearly imposes limits to the participation<br>
<br>
???of governmental representatives, as it is unlikely that a representative of a foreign government w<br>
i
<br>
ll be authorized (by its own government) to formally accept a position in a body pertaining to a U.
<br>
<br>
S. corporation."
<br>
<br>
This may be what you're getting at with your point 3
below, but I'm not sure
<br>
whether the problem is
<br>
only the fact that governments have to deal with a
corporate form/law or
<br>
whether it is altogether
<br>
the fact that it is a single country law without any
form of deliberate
<br>
endorsement by the other
<br>
governments (who also have law making power in their
respective country just
<br>
as the US government).
<br>
<br>
Assuming your reading is correct, and if necessary
complemented by my
<br>
remarks above, I'd be
<br>
interested in hearing from you about any issues you
may see with the BR gov
<br>
comments.
<br>
Thanks,
<br>
<br>
Mawaki
<br>
<br>
>
<br>
> 3. ICANN doesn't have to change its form, but
it needs a form where
<br>
governments are comfortable.
<br>
>
<br>
> (And, as it happens, the corporate form is not
such a form....)
<br>
>
<br>
>
<br>
> What am I missing?
<br>
>
<br>
>
<br>
>
<br>
> On Sat, 6 Jun 2015, Carlos A. Afonso wrote:
<br>
>
<br>
>> For the ones who are following the IANA
transition process: attached
<br>
>> please find the comments posted by the
government of Brazil on June 03,
<br>
>> 2015, in response to the call for public
comments on the
<br>
>> CCWG-Accountability Initial Draft Proposal.
<br>
>>
<br>
>> I generally agree with the comments.
<br>
>>
<br>
>> fraternal regards
<br>
>>
<br>
>> --c.a.
<br>
>>
<br>
>
<br>
> --
<br>
> A. Michael Froomkin, <a class="moz-txt-link-freetext" href="http://law.tm">http://law.tm</a>
<br>
> Laurie Silvers & Mitchell Rubenstein
Distinguished Professor of Law
<br>
> Editor, Jotwell: The Journal of Things We Like
(Lots), jotwell.com
<br>
> Program Chair, We Robot 2016 | +1 (305)
284-4285 | <a class="moz-txt-link-abbreviated" href="mailto:froomkin@law.tm">froomkin@law.tm</a>
<br>
> U. Miami School of Law, P.O. Box 248087, Coral
Gables, FL 33124 USA
<br>
> -->It's warm
here.<--
<br>
>
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