[governance] IANA transition - BR Gov comments on the CCWG-Accountability Draft Proposal
Michael Froomkin - U.Miami School of Law
froomkin at law.miami.edu
Tue Jun 9 10:01:45 EDT 2015
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.
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.
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.
I'd be real happy with Canada, though.
On Tue, 9 Jun 2015, parminder wrote:
>
>
> On Tuesday 09 June 2015 06:26 PM, Michael Froomkin - U.Miami School of Law wrote:
>
> I think that bodies which do not need to fear supervision by legitimate courts end up
> like FIFA. FIFA had a legal status in Switzerland that basically insulated it the way
> that the Brazilian document seems to suggest would be what they want for ICANN. (It's
> also the legal status ICANN has at times suggested it would like.)
>
> The lesson of history seems unusually clear here.
>
>
> Agree that ICANN cannot be left jurisdictionally un-supervised - that may be even more dangerous
> than the present situation. However, the right supervision or oversight is of international
> jurisdiction and law, not that of the US . This is what Brazil has to make upfront as the
> implication of what it is really seeking, and its shyness and reticence to say so is what I noted as
> surprising in an earlier email in this thread. Not putting out clearly what exactly it wants would
> lead to misconceptions about its position, which IMHO can be seen from how Michael reads it. I am
> sure this is not how Brazil meant it - to free ICANN from all kinds of jurisdictional oversight
> whatsoever - but then Brazil needs to say clearly what is it that it wants, and how can it can
> obtained. Brazil, please come out of your NetMundial hangover and take political responsibility for
> what you say and seek!
>
> parminder
>
>
>
> On Tue, 9 Jun 2015, Mawaki Chango wrote:
>
>
> It's good to see a law scholar involved in this discussion. I'll leave it to
> the Brazilian party to
> ultimate tell whether your reading is correct or not. In the meantime I'd
> volunteer the following
> comments.
>
> On Jun 8, 2015 10:46 PM, "Michael Froomkin - U.Miami School of Law"
> <froomkin at law.miami.edu> wrote:
> >
> > Perhaps I'm misreading something, but I read this document to make the
> following assertions:
> >
> > 1. All restrictions on ICANN's location must be removed.
> >
>
> And the question reopened for deliberation by all stakeholders, including
> governments among others.
> Only the outcome of such deliberation will be fully legitimate within the
> framework of the post-2015
> ICANN.
>
> > 2. ICANN does not have to leave the US but must be located in a place
> where the governing law has
> certain characteristics, including not having the possibiliity that courts
> overrule ICANN (or at
> least the IRP).
> >
> > (And, as it happens, the US is not such a place....)
> >
>
> Not only avoiding courts overruling relevant outcomes of the Internet global
> community processes,
> but also examining and resolving the possible interferences/conflicts that
> might arise for
> government representatives being subject to a foreign country law simply in
> the process of attending
> to their regular duties (if they were to be fully engaged with ICANN).
>
> Quote:
> "From the Brazilian perspective the existing structure clearly imposes limits to the participation
>
> ???of governmental representatives, as it is unlikely that a representative of a foreign government w
> i
> ll be authorized (by its own government) to formally accept a position in a body pertaining to a U.
>
> S. corporation."
>
> This may be what you're getting at with your point 3 below, but I'm not sure
> whether the problem is
> only the fact that governments have to deal with a corporate form/law or
> whether it is altogether
> the fact that it is a single country law without any form of deliberate
> endorsement by the other
> governments (who also have law making power in their respective country just
> as the US government).
>
> Assuming your reading is correct, and if necessary complemented by my
> remarks above, I'd be
> interested in hearing from you about any issues you may see with the BR gov
> comments.
> Thanks,
>
> Mawaki
>
> >
> > 3. ICANN doesn't have to change its form, but it needs a form where
> governments are comfortable.
> >
> > (And, as it happens, the corporate form is not such a form....)
> >
> >
> > What am I missing?
> >
> >
> >
> > On Sat, 6 Jun 2015, Carlos A. Afonso wrote:
> >
> >> For the ones who are following the IANA transition process: attached
> >> please find the comments posted by the government of Brazil on June 03,
> >> 2015, in response to the call for public comments on the
> >> CCWG-Accountability Initial Draft Proposal.
> >>
> >> I generally agree with the comments.
> >>
> >> fraternal regards
> >>
> >> --c.a.
> >>
> >
> > --
> > A. Michael Froomkin, http://law.tm
> > Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law
> > Editor, Jotwell: The Journal of Things We Like (Lots), jotwell.com
> > Program Chair, We Robot 2016 | +1 (305) 284-4285 | froomkin at law.tm
> > U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
> > -->It's warm here.<--
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--
A. Michael Froomkin, http://law.tm
Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law
Editor, Jotwell: The Journal of Things We Like (Lots), jotwell.com
Program Chair, We Robot 2016 | +1 (305) 284-4285 | froomkin at law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
-->It's warm here.<--
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