[governance] DMP} Statement on Process and Objectives for the Global Multistakeholder Meeting on the Future of Internet Governance

Mon Dec 2 03:49:54 EST 2013

Dear Lee,

There is no disagreement. There is a difference between incorporation and
operations. The Yahoo! case – one of early Internet law cases – illustrated
this difference. The case in the French court was not against Yahoo!-France
(incorporated under French law), but against Yahoo!-USA based on the effect
principle (the possibility that French users can access materials at
Yahoo!.com which are prohibited by French law).

It is clear that any entity should adhere to the laws of the country where
it is INCORPORATED. ICANN-Singapore is a separate legal entity to
ICANN-California. Thus whatever it does is subject to Singaporean law.
ICANN-California may have indirect legal responsibility as a founding
partner. It is a simple situation.

A much more complicated situation is when the SAME entity (e.g.
ICANN-California) OPERATES in different jurisdictions either intentionally
(signing contracts) or unintentionally (creating legal effects by its
actions – for example, similar to the Yahoo! case).  Here we enter the
terrain of potential multiple jurisdiction. Volumes have been written on it
in international private law. There is rich jurisprudence.

After Rafik's and Norbert's comments it seems that Fadi was referring to
legal incorporation in different jurisdictions (opening new legal entities
in Turkey and Singapore with specific functions – for example, regional
cooperation, training). It is not clear if these new entities will have any
legal responsibility over ICANN's core functions.

Regards, Jovan

On Mon, Dec 2, 2013 at 6:35 AM, Lee W McKnight <lmcknigh at syr.edu> wrote:

>  Hi,
>
> Belatedly joining the discussion again.
>
> First, agreeing with Milton we need to be precise about which -level of
> analysis - and which - laws - we are talking about.  As Karl points out,
> again, California non-profit law is not bad; he only wishes ICANN would
> follow it more closely : )
>
> Second, disagreeing with Jovan, on how an 'organization' can be subject to
> many, and conflicting, laws simultaneously. For example, any business or
> non-profit entity must adhere to the laws of every nation it operates in,
> even when those laws conflict; and in US context, every state, county and
> city, in which it operates. Naturally, a 'conflict of laws' can arise
> readily, and among other things, impede business. Hence the EU. And
> international commercial lawyers bread and butter.
>
> In our present discussion of ICANN, of course ICANN-Singapore, and its
> staff, are subject to all laws and regulations of Singapore; likewise
> ICANN-Turkey. The question then arises, whether mothership ICANN from
> California and its 501-C-3 status trump Turkish and Singaporean law, in all
> relevant cases? By contract it can, by legal jurisdiction, it is not so
> straightforward.  As no doubt clever lawyers are studying right now.
>
> But in any case, as McTim points out, this mainly gets down to choice of
> the fine print of non-profit administrative procedures which are not
> terribly interesting or significant, in most cases.
>
> Third, more significant is first, ending the IANA function oversight role
> of USG, which is completely orthoganal to everything above. For example,
> ICANN could be reincorporated and operate solely under Turkish non-profit
> law, while leaving USG in charge of IANA oversight. Which as McTim notes,
> also hardly matters in practice these days, with GAC exhibiting more
> willingness to veto entries into the root zone file than USG (ok cough
> cough, there are notable exceptions XXX. Nonetheless, it does matter, and
> sooner or later will be internationalized I expect.)
>
> Fourth, while Parminder may be correct to note that we are all more of
> less in agreement that the baby has grown up and the residual role of NTIA
> as guarantor of good - administrative procedures - in handling changes to
> the root zone file, what we don't have is a plan. Milton's suggestion of an
> INGO has been bandied about before; we cannot expect NTIA to walk away from
> the table until CS and other - multistakeholders - have a coherent plan and
> proposal on the table for what would come next. More than that, the
> alternative would have to be essentially up and running, or no way would
> the the USG, - or businesses anywhere in all honesty - want NTIA to walk
> away from the table.  It's trivial but important at same time.
>
> Summarizing, we might wish to prioritize which objectives are of primary
> importance and require international action, and which ICANN and IGF can
> further evolve towards more or less readily with existing momentum.
>
> ICANN has chosen to subject itself in part to Turkish and Singaporean law;
> is that international enough? Perhaps not. Going INGO however will as noted
> require much more analysis and debate - and note an INGO could -still -
> have its staff whether in US. Turkey, Singapore, wherever - subject to
> various national ngo/non-profit laws.
>
> UNLESS we wanted Fadi to have Sepp Blatter-like powers, in which national
> governments have to kiss...his ring. Is that the plan?
>
> Anyway, no doubt most of you are aware of what I have reviewed here
> already, but now that we are getting into the muck and details, I thought
> it perhaps helpful to remind us of prior discussions and conclusions.
>
> Ideally, we could have a half-way sensible plan/process to address some of
> these elements cooked in coming months, whose blessing would be the
> crowning achievement of the Brazil photo op, as I call the Brazil meeting
> for short, to avoid the now-dreaded multistakeholder word.  ; ).
>
> Lee
>  ------------------------------
> *From:* governance-request at lists.igcaucus.org [
> governance-request at lists.igcaucus.org] on behalf of Jovan Kurbalija [
> jovank at diplomacy.edu]
> *Sent:* Sunday, December 01, 2013 4:53 PM
> *To:* governance at lists.igcaucus.org; Norbert Bollow
> *Subject:* Re: [governance] DMP} Statement on Process and Objectives for
> the Global Multistakeholder Meeting on the Future of Internet Governance
>
>   Hi Norbert,
>
> It would be useful to have the exact reference to Fadi's comment in order
> to provide a precise legal analysis. Multiple jurisdictions would lead
> towards conflict of laws (regulated by international private law).  The
> Law of the Sea has many examples of concurrent, parallel, and overlapping
> jurisdictions due to the complex interplay of three core jurisdiction
> elements: territoriality (coastal state, territorial sea), nationality
> (flag State jurisdiction), and universality (e.g. against piracy).
>
>
>
> So far, one of the broadest lists of concurrent jurisdictions is in
> article 109 of the UN Convention of the Law of the Sea (1982):
>
>
>
> ‘Any person engaged in unauthorized broadcasting may be prosecuted before
> the court of:
>
> (a) the flag State of the ship;
>
> (b) the State of registry of the installation;
>
> (c) the State of which the person is a national;
>
> (d) any State where the transmissions can be received; or
>
> (e) any State where authorized radio communication is suffering
> interference.’
>
>
>
> BTW: I usually send this article to enthusiasts about extending the Law of
> the Sea to the Internet based on a rather simplistic analogy between the
> high sea and the Internet (beyond jurisdiction). The Law of the Sea is not
> very sympathetic to ‘unauthorised broadcasting’ and free flow of
> information.
>
>
>
> Back to the question of multiple jurisdiction…
>
>
>
> While one can think on various solutions with multiple jurisdictions, it
> is not clear how various jurisdictions can be exercised ‘simultaneously’.
> It would be in breach of the general legal principle ‘ne bis in idem’
> (nobody should be prosecuted twice for the same offense).
>
>
>
> This is just a quick reflection. If you can provide more precise
> questions, it could help in deepening the discussion on IG, jurisdiction,
> and ICANN.
>
>
>
> Best regards,
>
>
>
> Jovan
>
>
>
>
> On Sat, Nov 30, 2013 at 12:43 PM, Norbert Bollow <nb at bollow.ch> wrote:
>
>> Carlos A. Afonso <ca at cafonso.ca> wrote:
>>
>> > I risk to be bitten by (no, not monkeys, Milton) scorpions here, but
>> > if "removal of the source of authority from a single national
>> > government and the linkage of its authority over the DNS root zone
>> > file to a global polity" is achieved, the need to
>> > change/globalize/internationalize ICANN (the organization) becomes a
>> > relatively minor issue, n'est pas?
>>
>> My perspective on this is that the "removal of the source of authority
>> from a single national government and the linkage of its authority over
>> the DNS root zone file to a global polity" is IMO primarily of
>> symbolic importance, as we have discussed in depth some time ago that
>> the degree of real-world power that the executive branch of the US
>> government has in the current arrangement is rather limited if it is of
>> any significance at all.
>>
>> I think that the aspect of jurisdiction is much more important and also
>> much more difficult.
>>
>> Fadi said in Bali that ICANN could be made subject to multiple
>> jurisdictions simultaneously.
>>
>> I absolutely don't see how that could possibly work, but maybe someone
>> can enlighten me.
>>
>> Greetings,
>> Norbert
>>
>>
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