AW: [governance] JPA
Michael Froomkin - U.Miami School of Law
froomkin at law.miami.edu
Wed May 27 12:18:15 EDT 2009
WK and I are of one mind...until the end ... I have no strong opinion as
to the tribunal -- courts or arbitrators -- but I submit that this isn't
the hardest issue. The hardest issue is the content of the procedural
norms. And this cannot be well-specified in a contract, there's just too
mamy issues, too many ways an administrative body can play games. It
really takes reference to a body of law with experience. I suppose one
could incorporate that law by reference.
That said, I do have slightly queasy feelings about asking even a
first-class US jurist to apply French administrative law or a French
jurist US admin law, sittling as arbitrators, as they are complex bodies
of law and take experience and a knowledge of how the sources are embedded
in a larger legal context.
Arbitrators can apply foreign contract law because the transnational law
norms converge, ditto even more so for trademark. This would be much
harder.
On Wed, 27 May 2009, "Kleinwächter, Wolfgang" wrote:
> Michael is right with regard to international law. Since Hugo Grotius international law is nothing more than trying to reach a minimum level of coordination among national governments. There is nothing live a "global authority" in internaitonal law. The whole system is based on the seven jus cogens principles, enshrined in the United Nation Charter, which includes the principle of sovereignty. No single govenrment can be pushed to accept something which is - in the eyes of the given government - against its sovereign national interests.
>
> The International Court of Justice in the Hague has no real legal power. There are some intergovernmental mechanisms which can really "decide" but this is very limited and case based (as the International Law of the Sea Court in Hamburg). Even the Rome Statute for international criminal law is not ratified by a substantial number of govenrments, including the US government. WTO offers procedures but if you look into the Antigua vs. US Case on Online Gamling you will see the limits.
>
> An intergovernmental regime for the Internet would produce more problems than it would settle. Nobody could push the government of Tuvalu or Antigua or another UN Member State to reject the ratification of an Internet Treaty. And these islands could offer a "safe harbour" for players who do not like the text of a convention.
>
> Which legally binding convention (which normally needs 20 years to be ratified by more than 100 parliaments) delivers what the drafters expected? China has ratified the Human Rights Convention from 1966. Good news. What does it mean in practice? Go to the UN Human Rights Council and have a look. Latin America refuses to sign the Cybercrime Convention. US is not part of the Kyodo protocol. Israel did not joint the Non Proliferation Tretay. More examples?
>
> Internet management is not a legal process, it is a political process. You have to have a basic political understanding which can be emerge only as the result of a multistakeholder dialogue. This recognition was the big achievement and the big step foreward within WSIS. And ICANNs leadership was clever enough to jump into this boat by declaring itself as a model of a multistakeholder organisation. This is true indeed because there is no better model. Conclusion: Lets improve ICANN with a diversified system of internal and external accountability mechanisms.
>
> If it comes to hard law you have - as Michael has pointed out - national law. Otherwise you have to have contracts among two or more parties which include also paragraphs for dispute settlement (and the place were the dispute should be handled). Madame Reding has proposed the Prague UDRP Arbitration Center to play a external for disputes with ICANN. ICANN International, proposed by the PSC, is another effort. Lets be creative and not go back to the mechanisms of the past which have their merits (and will continue to be important) but do not produce the answer to a challenge which is different from other global problems.
>
> Wolfgang
>
> ________________________________
>
> Von: Michael Froomkin - U.Miami School of Law [mailto:froomkin at law.miami.edu]
> Gesendet: Mi 27.05.2009 17:07
> An: Jeanette Hofmann
> Cc: governance at lists.cpsr.org; Milton L Mueller
> Betreff: Re: [governance] JPA
>
>
>
> No, it is not that difficult to craft a system to allow non-citizens to
> have an equal right of action. But this does mean the non-citizen must go
> into the courts of that nation, which has linguistic, geographic and
> financial implications. I submit that is still better than reinventing
> the wheel, with all the uncertainty (and expense) that implies.
>
>
> On Wed, 27 May 2009, Jeanette Hofmann wrote:
>
>> Hi Michael, this sounds nice but how do we translate national due process to
>> transnatinal policy making? You are not suggesting to restrict the rights to
>> appeal or to contest an action to the citizens of the country that hosts
>> ICANN, are you?
>>
>> jeanette
>>
>> Michael Froomkin - U.Miami School of Law wrote:
>>> This is why tying to a nation's law (as opposed to 'international law') of
>>> administrative makes sense: it's at the national level that we have well
>>> worked-out ideas of due process and basic rights to be heard.
>>>
>>> International law, which is still primarily about states and international
>>> organizations, does not have a body of jurisprudence that speaks to those
>>> issues.
>>>
>>> The US APA is one model; Canada has a different on. The UK's model of
>>> administrative review, on the other hand, is relatively feeble.
>>>
>>> Several countries have a strong tradition, and well worked-out rules,
>>> about procedural regularity, that is rules which police fairness,
>>> conflicts of interest, the right to be heard, without being too
>>> heavy-handed in their substantive review. Those are good models, they
>>> took decades to develop, and one should be adopted rather than reinvented
>>> from the ground up.
>>>
>>> On Wed, 27 May 2009, Milton L Mueller wrote:
>>>
>>>>> I also think that suggesting an 'international judidical body' for
>>>>> adjudication CIR/ related IG issues as a more urgent step would be
>>>>> useful, since a full treaty process could take long time. The model
>>>>> and legal basis for such a judicial or quasi- judicial body can be
>>>>> discussed. ,
>>>>
>>>> Same issue as my last message.
>>>> What rules/law does this quasi-judicial body apply? Without that, it's
>>>> useless second-guess or a
>>>> dangerous political bypass mechanism.
>>>> We've tried to skip that stage for 10- years and it hasn't worked. Let's
>>>> get down to it.
>>>>
>>>>
>>>>
>>>
>>
>>
>
> --
> http://www.icannwatch.org <http://www.icannwatch.org/> Personal Blog: http://www.discourse.net <http://www.discourse.net/>
> A. Michael Froomkin | Professor of Law | froomkin at law.tm
> U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
> +1 (305) 284-4285 | +1 (305) 284-6506 (fax) | http://www.law.tm <http://www.law.tm/>
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A. Michael Froomkin | Professor of Law | froomkin at law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285 | +1 (305) 284-6506 (fax) | http://www.law.tm
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