Can you give me an example of what you consider a good model for an
'international jurisdiction' application -- ideally one where someone has
succeeded with a human-rights based challenge?
I would also question the claim that no national jurisdiction could be
asked (or trusted) to undertake a stewardship role on behalf of the
international community. Saves reinventing the legal wheel.
I just don't have much faith in the international tribunal option because
1) it would take years to set up; 2) the lack of relevant international
law would create massive uncertainty; 3) cases would be even more costly
than those in the US or the like.
As regards your IP example below, I would only note that there are
meaningful differences between the IP laws of various states, and that
WIPO's view - which likely would dominate in an international forum - is
far more friendly to IP rights and less open to HR claims than the US
courts have shown themselves to be. Indeed, I would have thought that
WIPO's IP maximalist views were in themselves proof that the
international route was deeply suspect.
On Thu, 11 Jun 2015, parminder wrote:
>
>
> On Thursday 11 June 2015 04:41 AM, Michael Froomkin - U.Miami School of Law wrote:
> Just to head off a possible and no doubt unintentional misunderstanding:
>
> Non-US persons have recourse to US courts for many things, including contractual
> rights. Non-US persons located outside the US do not, in the main, have the right to
> make constitutional claims or defenses against the US government. But since ICANN, or
> New New Co., is not part of the US government, this is not relevant.
>
>
> As you confirm below, one can make make claims or sue with respect mostly to private law violations,
> like contractual deficiencies and the such, but not on public law issues, and human rights issues.
> It is the latter that is most important and the basis of my argument for international jurisdiction
> for ICANN (other than the important democratic principle that whether any jurisdiction is open to be
> employed by anyone or not, a given jurisdiction has to be one which includes all affected persons as
> democratic constituencies for determining and building that jurisdiction, which all important
> democratic aspect is strangely fully being side stepped in this discussion. 'No governance/
> jurisdiction without representation' which is almost exactly the slogan on which the US fought for
> its independence - it now needs to give a thought to those of others too...)
>
> You asked for an example of a problematic scenario, let me use the one which I have lately used in a
> few places. Excuse me to just cut paste from my earlier posting to another list - to the Working
> Group on ICANN Accountability, which btw took no note of it at all:
>
> (Quote from an earlier posting to another elist begins)
>
> One need not even provide a scenario, but let me try it - entirely hypothetical at this
> stage, but extreme plausible. Sun Pharmaceuticals is an Indian generic drugs company,
> one of the world's largest, and providing drugs to most developing countries, at a
> fraction of the prices that patented drug equivalents are available for . There is a lot
> of literature on how Indian generic drug industry has helped fight and stabilise the
> AIDS situaton in Africa, and also with regard to other diseases all over the world.
> Meanwhile, US pharma industry with the backing of the US government has employed all
> possible means including those that are suspect from an international law point of view
> to thwart and weaken the Indian generic drugs industry for reasons which are obvious --
> including getting seized in international waters and neutral protected global shipping
> lanes supplies being shipped between two developing countries in both of which the
> transaction is perfectly legal (There is the famous case of supplies being exported from
> India to Brazil being seized off Netherlands's coast on US gov's behest.) ... Just to
> give an idea of how 'tense' things are in this area.
>
> Now, extending the hypothetical, lets say that Sun Pharma gets for itself a gtld
> .Sunpharma (which btw if they ask me I'd advice them not to bec of obvious dangers as
> clear from the following).. and meanwhile extends its global business to online
> platforms, which is kind of the normal direction that everything would go. .Sunpharma
> then becomes or denotes the digital space where the company does much of its global
> business, including management of company's global affairs and so on.
>
> Meanwhile, one or the other Intellectual property (IP) related flare up occurs, as
> routinely does, and the US pharma industry cries foul over certain global commerce
> activities of Sun Pharma.... We are, say, in 2025 and everything is so digitalised and
> networked and so on, that the Sunpharma online space has become basic to SunPharma's
> international operations - it becomes the 'cloud' that underpins the company's business
> (which it has a right to do - meaning to be able to own and leverage a global online
> space under its own name and a trade name name derived gtld). . US pharma approaches US
> courts and seeks seizing of .Sunpharma as this asset is made available and controlled
> from within the US jurisdiction; and the court agrees and accordingly directs ICANN....
> The global DNS system practically unravels, at least its global legitimacy does...
>
> We know that US courts have many times been approached to seize domain names that are
> owned by outside groups and largely work outside the US, and on many different kinds of
> grounds as well. This is common knowledge and I will not try to begin providing
> examples. And this right of such seizures or to otherwise being able to judge the
> public interest nature of ICANN's work lies not only with the US courts but also some
> executive agencies like the Office of Foreign Assets Control, and I am sure there must
> be many more. I had earlier asked this particular stress test to be applied but for no
> clear reasons it never is. If we can cherry pick our stress tests, they really are not
> stress tests, whatever other purpose they might serve.
>
> There is simply no solution to the problem of letting US courts and US's empowered
> executive agencies routinely judge and enforce their will wrt the public interest impact
> of ICANN's global governance activities than to incorporate ICANN under international
> law and get corresponding immunity from US domestic law. I repeat, there is simply no
> other way. Period.
>
> Therefore if we indeed are worried about the role and authority of US courts vis a vis
> ICANN's global governance activities, lets be consistent. I have held back commenting
> here, because I see that the two key framing issues of accountability - accountability
> to which community/ public, and the issue of jurisdiction - have simply been
> sidestepped, and in default there is no meaning to thrashing out minute details. "
>
>
> (quote ends)
>
> parminder
>
>
> If a corporation is located in a US state, then it can be sued there by **anyone*** from
> ***anywhere*** so long as they are in fact alleging facts showing they were wronged by
> it. In other words, the issue is what (mainly private law) rights one might have to
> assert, not whether the court will hear you due to your citizenship or domicile or even
> (if represented by counsel) location.
>
>
> On Wed, 10 Jun 2015, Seth Johnson wrote:
>
> On Wed, Jun 10, 2015 at 2:51 PM, Mawaki Chango <kichango at gmail.com> wrote:
> Simple and maybe trivial question, again (since my previous one
> about
> delegation hasn't found a taker.)
>
> Scenario 1*: I am a citizen of Togo, quite a small country
> sitting on the
> belly of Africa to the west (you may check our macro economic
> indicators in
> the CIA Facebook or from the World Bank online sources.) I am a
> domain name
> registrant. In year 2018 ICANN makes a decision, later upheld by
> the
> conflict resolution mechanism in place, but which I think
> violates my
> fundamental rights as I understand them by any international
> standards. I am
> even pretty convinced that I might win the case in a US court
> based on the
> documentation available /jurisprudence in that country. Problem
> is, I have
> no access to the institutional resources that would allow me to
> use the US
> judicial system as a plaintiff, much less the financial
> resources it would
> take to get a lawyer to represent my interests.
>
> Is that -- the need for everybody to be equal before the law, in
> practice,
> and have their rights equally secured, -- in your view, a
> problem worthy of
> our attention? If so how can we address it.
>
>
>
> It is. But no, you would not have recourse to US courts. The problem
> for the international arena is that nobody has that "trump card"
> recourse that keeps governments in check *other than* those who have a
> claim that their own government is doing or allowing things to happen
> that violate their own fundamental rights as a citizen. The kind of
> rights you get internationally are really almost what we call
> statutory rights -- the problem being that the "legislature" can
> always rewrite those kinds of rights. Or, since in fact going and
> revising a treaty provision regarding rights poses some political
> difficulty, what you'll see more often is that the rights expressed in
> treaties have no more weight against things like "national interests"
> or "national security" or the "war on" x, y, and z -- than a
> "balancing standard." Governments can well do whatever they say is
> necessary (like vacuum up all communications for surveillance, or for,
> hey, regular spying) for their national interests and they essentially
> just "bear in mind" whatever rights are expressed in treaties. And no
> judge in an ostensible international tribunal can really simply cancel
> a treaty the way they can an unconstitutional law in a national
> context (without a clear founding act prior to the government, where
> the people(s) claim their priority and authorize government(s) to
> proceed only under certain limits). Treaties are agreements among
> governments, so what the governments "meant" is what you have to
> deliberate over in interpreting the treaties -- not over whether the
> people have rights regardless of the governments' intention in the
> treaty. A judge would at best weigh treaty elements and try to
> articulate how to settle all parts without saying any part is
> "unconstitutional." The problem is how to get the closest you can to
> that kind of a "trump card" standing for fundamental rights.
>
> An ostensible "constitution" among governments (like the ITU's) has
> the same problem. In general, the way the real claim of priority of
> the people and their rights happens is when the people self-evidently
> act to fill in the gap when a government is rendered illegitimate (or
> overthrown): acting independent of the pre-established government to
> select delegates to their own constitutional convention, draft a
> constitution, and then ratify it -- they thereby set a definitive
> historical register of the people setting limits that the government
> must thenceforth operate within to be legitimate. This is called the
> "constituent power." Historians point at Massachusetts as the first
> US colony/state to exercise the consttuent power that way -- when the
> towns rejected the state constitution the state legislature had
> written for them and insisted on having their own constitutional
> process. It was done by similar principles for the US federal
> constitution. That's how you get a fundamental right "trump card."
>
> If you have that, and it's exercised a few times well or for a while,
> then you have a situation where goverments are in check -- they don't
> overreach too obviously, or they test the boundaries but they get
> trumped by a judiciary that's rooted that way.
>
> You posed the question of equal rights before the law, in the
> international context. I certainly do not advocate a global
> revolution where all the people(s) seize a moment to stop their
> governments and tell them how they may all proceed.
>
> What I have tended to suggest is approaches that can be interim
> measures that tend towards the principles that we want to have in
> play, but which we can't yet quite have in play.
>
> One approach that seems like a way towards that kind of conception
> might be: Imagine a bicameral "House of Rights" or more narrowly an
> "International Internet Communications Rights Forum." It doesn't need
> to say "Rights," though that's the point, so maybe call it an
> "Internet Stewards House." This is modeled like a legislature, with a
> house to represent countries equally, and another house to represent
> populations proportionally -- except it's not empowered to write law
> (or treaties), but rather to play the role of voting to *veto* acts of
> other (or some one or few other) intergovernmental bodies that
> actually do start enacting binding "legislation." You might be able
> to get freedom-loving countries to endorse constructing something like
> that, and while it's not as solid as court rulings that keep all
> lawlike activities in check more definitively, it would be a solid
> register of the priority of rights.
>
> There are a lot of holes in that, but I think it conveys something of
> the kind of concerns and how they might be approached that we should
> really have in mind rather than blindly handing things off to the
> international arena (which is really *always* "intergovernmental" --
> governments are the entities that act there).
>
> So, that's a sort of answer, stab at describing things properly and
> with some sort of practical conception. I don't press specific
> solutions though, just describe notions that I think can give people a
> better understanding of the real nature of the difficulties and
> problems involved.
>
> Ponder that; you'll think of plenty of problems with it. But the
> important thing is this is a far more real characterization of the
> situation. And I describe an idea like this solely to set a proper
> stage for talking about things with a better sense of what's going on.
> Take it as a brainstorm. But also take it as a reality check and a
> call and challenge to try to define and understand the situation
> properly and well.
>
> (The above line of exposition talks mostly about governmental-related
> issues. The issues brought by the corporate form are a whole other
> area that also needs fuller appreciation. And really, we most want
> not to be so governmental [even those of us stressing the validity of
> the role of government]; we want to just build our Internet and let
> that be mostly a discussion of how to solve problems in a technical
> way and one where our rights aren't on the line.)
>
> See what you think of that.
>
>
> Seth
>
> Thanks
>
> (*) I only have one scenario for now but I'm numbering #1 just
> in case
> others come up later in the discussion.
>
> /Brought to you by Mawaki's droid agent
>
> On Jun 10, 2015 3:57 PM, "Seth Johnson"
> <seth.p.johnson at gmail.com> wrote:
>
> I believe the most important focus is on the
> question of how to
> install effective fundamental liberties limits in
> the context of an
> international political forum. That's how you can
> hope to maintain
> the type of stewardship context we want associated
> with a medium of
> communication. The presence of recourse of that
> sort -- related to
> being based in a national context -- is one of the
> main reasons why
> ICANN has not gone further off the rails. Same as
> for government in
> general in such a national context: we don't get the
> government
> meddling specifically because the relationship to
> the national context
> (via the bare presence of NTIA) means the people (at
> least of the US)
> have recourse against it if it does.
>
> Keep in mind that one of the chief reasons why Obama
> (and his
> predecessor) have gone off the rails with
> surveillance and other
> fundamental rights violations is because they have
> the notion that the
> international arena provides means to act that way
> without the
> recourse we have against it domestically. There's
> still the problem
> of laundering the surveillance by having private
> corporations (whether
> telco or app) do it on the government's behalf. But
> we see an effort
> at long last to try to "legitimize" what they're
> doing that way at
> least (more apparent effort to not violate citizens
> in the domestic
> sphere), because we finally got standing in the
> courts, and
> documentation that was taken seriously via Snowden.
> Still just
> domestic, so that doesn't answer general concerns,
> but this should
> highlight the nature of the problem. You don't
> actually have
> fundamental rights in the international arena, no
> matter how many
> human rights treaties you pass. That's not what
> secures rights
> against acts of governments.
>
> Note that this is stuff the UN has been utterly
> clueless about for
> years and years and years, along with many
> followers-on. And I think
> in general the parties who have been acting in the
> international arena
> like it that way. We, the people(s), are really the
> ones to bring it
> into the discourse in a real way, now that we are
> here in proceedings
> that deign to appear to engage us substantively in
> international
> policy.
>
>
> Seth
>
> On Wed, Jun 10, 2015 at 10:36 AM, Michael Froomkin -
> U.Miami School of
> Law <froomkin at law.miami.edu> wrote:
> On Wed, 10 Jun 2015, Chris Prince
> Udochukwu Njoku wrote:
>
>
> Parminder is emphasizing a
> true point. An organization
> which represents
> the
> interests of many nations,
> though located in one nation
> (as it must be)
> must
> not be subjected to laws
> that ought to be (and are)
> for national
>
>
>
> It is, I think, possible to act as a
> trustee of international interests
> while still having accountability rooted
> in national law. It may not be
> possible to accommodate the desires of
> governments to, in effect, serve
> directly on the governing body given the
> view of e.g. the Brazilian
> government that this is unacceptable
> subordination to another state, but
> some may see that as a feature rather
> than a bug.
>
>
> organizations. This should
> be the definition of
> international
> jurisdiction
> here. If the host nation's
> laws don't actually
> accommodate the
> multinational
> stakeholding nature of the
> organization, it's a ripe
> clue to the need
> for
> relocation to a place that
> is more friendly to the
> organization's
> operations.
>
>
> The above contains a term that (to a
> lawyer) has multiple possible
> meanings.
> The traditional way to " accommodate the
> multinational ... nature" of an
> organization is to incorporate it in
> Switzerland, and have no effective
> supervision. FIFA. IOC. No thanks.
>
> So I would ask, what is the threat model
> here? What is a (mildly
> realistic)
> example of a scenario in which one fears
> the entity will do something
> legitimate and a national court (of the
> US, Canada, the nation of your
> choice) would have an appreciable chance
> of blocking it? I would note,
> for
> example, that the only time I can think
> of that a US court overruled
> ICANN
> was when it froze out one of its own
> directors because the staff
> disagreed
> with his views. That violated
> California law empowering directors not
> to
> mention any sense of natural justice.
> The result was not only just, it
> was
> necessary. And it is Exhibit A as to
> why we cannot simply trust in
> ICANN,
> or New New Co's, good faith.
>
> In other words, I submit that national
> court supervision in an
> appropriate
> and democratic jurisdiction is far, far
> more likely to produce good
> outcomes
> than bad ones, while the removal of this
> valuable check is almost
> certain to
> lead to difficulties. What is more,
> those difficulties will not be
> prevented by having the body be
> "international" for any currently known
> meaning of the term.
>
> Contrary to other messages in this
> thread, I do not believe that there
> is
> much in the way of effective monitoring
> of many multi-national treaty
> bodies
> other than by action of the member
> states. No one else has much real
> leverage over WIPO, GATT, you name it.
> NGOs have some moral and
> intellectual suasion, but some of their
> clout also comes from the fact
> that
> it influences or might influence the
> members.
>
> I prefer to attempt to engineer a much
> surer means of dealing with major
> and
> substantially foreseeable problems.
>
>
> On Jun 10, 2015 11:27 AM,
> "parminder"
> <parminder at itforchange.net>
> wrote:
>
>
> On Tuesday 09 June
> 2015 09:09 PM, Michael
> Froomkin - U.Miami
> School of
> Law wrote:
> > On Tue, 9 Jun 2015,
> parminder wrote:
> >
> >> Are you saying that
> it is not possible for ICANN
> to undertake
> the
> >> functions that it
> needs to
> >> undertake while
> being an international
> institution
> incorporated under
> >> international law,
> and free
> >> from any countries
> jurisdiction in terms of its
> basic
> governance
> >> functions? I just
> want to be clear.
> >
> > I don't know what an
> "an international
> institution
> incorporated under
> > international law" is
> except bodies like FIFA
> (under Swiss
> law), or UN
> > bodies, or sui
> generis treaty bodies. It
> is certainly
> *possible* for
> > ICANN to have any of
> those statuses and to
> "function"; as far
> as I can
> > tell, however, it's
> just not possible to build
> in meaningful
> > accountability in
> those structures.
>
> There are of course
> problems and issues
> everywhere, but it can
> hardly be
> said that UN and/or
> treaty bodies work without
> meaningful
> accountability.
> Further, any new
> international treaty/ law
> establishing
> a new body - an really
> international ICANN for
> instance - can
> write all
> the accountability
> method it or we want to have
> written in it.
> >
> > There is no general
> international law of
> incorporation of
> which I am
> > aware. Corporate
> (formation) law is all
> national law. That
> is the
> > reality that must be
> confronted. There is no
> place I can go
> to get an
> > international
> corporate charter, and good
> thing too - why
> should I be
> > able to exempt myself
> from national law?
>
> This hits a
> fundamental issue - I see
> ICANN, in its ideal form,
> as a
> governance body, since
> it does governance
> functions, and not as
> a
> private corporation.
> So we need a new
> international treaty
> sanctifying
> ICANN as a global
> governance body - with its
> basic forms largely
> unchanged, with new
> accountability means
> (including judicial
> accountability) and
> not ways to be able
> incorporate a private
> kind of an
> entity outside
> national laws, which is
> admittedly both very
> difficult,
> and rather
> undesirable.
>
> parminder
>
> >
> >>
> >> 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.
> >
> > But those are in the
> main treaty bodies.
> >
> >> And if some new
> directions and evolutions
> are needed that can
> also be
> >> worked out (please
> see my last
> >> email on this
> count).
> >>
> >
> > Here we just
> disagree. I see the task as
> monsterously hard,
> the work
> > of a decade or more.
> >
> >> 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.
> >>
> >
> > Alas.
> >
> >> Not to shy away from
> responsibility - I am happy
> to
> collaborate with
> >> anyone if someone
> can out time
> >> into it.
> >>
> >> 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 .
> >>
> >
> > I would not dismiss
> this so quickly. I take a
> substantial
> fraction of
> > the opposition to US
> residual control (for that
> is all we are
> talking
> > about) to be tied to
> the US's status as defacto
> hegemon.
> Moving ICANN
> > to another state with
> a strong human rights record
> would
> answer that
> > part of the critique.
> >
> > In my view, a bespoke
> international structure is
> actually much
> harder
> > -- it would need to
> be invented almost from
> scratch. And it
> is bound
> > to be flawed;
> national rules are the
> result of at least
> decades if not
> > more of trial and
> error.
> >
> >> parminder
> >>
> >> On Tuesday 09 June
> 2015 07:31 PM, Michael
> Froomkin - U.Miami
> School
> >> of Law wrote:
> >> 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.<--
>
> >> >
> >>
> ____________________________________________________________
>
> >> >
>
> >> >
> You received this message as
> a
> subscriber
> >> on the list:
>
> >> >
>
> >>
> >
> governance at lists.igcaucus.org
>
> >> >
>
> >> >
> To be removed from the list,
> visit:
>
> >> >
>
> >> >
>
> http://www.igcaucus.org/unsubscribing
>
> >> >
>
> >> >
>
> >> >
>
> >> >
> For all other list
> information and
> >> functions, see:
>
> >> >
>
> >> >
>
> http://lists.igcaucus.org/info/governance
>
> >> >
>
> >> >
> To edit your profile and to
> find
> the IGC's
> >> charter, see:
>
> >> >
>
> >>
> >
> http://www.igcaucus.org/
>
> >> >
>
> >> >
>
> >> >
>
> >> >
> Translate this email:
> >>
> http://translate.google.com/translate_t
>
> >> >
>
> >> >
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
>
> >> >
> >>
> ____________________________________________________________
>
> >> >
> You received this message as
> a
> subscriber
> >> on the list:
>
> >>
> >
> governance at lists.igcaucus.org
>
> >> >
> To be removed from the list,
> visit:
>
> >> >
>
> http://www.igcaucus.org/unsubscribing
>
> >> >
>
> >> >
> For all other list
> information and
> >> functions, see:
>
> >> >
>
> http://lists.igcaucus.org/info/governance
>
> >> >
> To edit your profile and to
> find
> the IGC's
> >> charter, see:
>
> >>
> >
> http://www.igcaucus.org/
>
> >> >
>
> >> >
> Translate this email:
> >>
> http://translate.google.com/translate_t
>
> >> >
> >>
> >>
> >>
> >>
> >>
> >>
> >>
>
> ____________________________________________________________
> >> You
> received this message as a
> subscriber on the
> list:
> >>
> governance at lists.igcaucus.org
> >> To be
> removed from the list,
> visit:
> >>
> http://www.igcaucus.org/unsubscribing
> >>
> >> For all
> other list information and
> functions,
> see:
> >>
> http://lists.igcaucus.org/info/governance
> >> To edit
> your profile and to find the
> IGC's
> charter, see:
> >>
> http://www.igcaucus.org/
> >>
> >>
> Translate this email:
> >>
> http://translate.google.com/translate_t
> >>
> >>
> >>
>
> ____________________________________________________________
> >> You
> received this message as a
> subscriber on the
> list:
> >>
> governance at lists.igcaucus.org
> >> To be
> removed from the list,
> visit:
> >>
> http://www.igcaucus.org/unsubscribing
> >>
> >> For all
> other list information and
> functions,
> see:
> >>
> http://lists.igcaucus.org/info/governance
> >> To edit
> your profile and to find the
> IGC's
> charter, see:
> >>
> http://www.igcaucus.org/
> >>
> >>
> Translate this email:
> >>
> http://translate.google.com/translate_t
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> ____________________________________________________________
> >> You received this
> message as a subscriber on
> the list:
> >>
> governance at lists.igcaucus.org
> >> To be removed from
> the list, visit:
> >>
> http://www.igcaucus.org/unsubscribing
> >>
> >> For all other list
> information and functions,
> see:
> >>
> http://lists.igcaucus.org/info/governance
> >> To edit your profile
> and to find the IGC's
> charter, see:
> >>
> http://www.igcaucus.org/
> >>
> >> Translate this
> email:
> http://translate.google.com/translate_t
> >>
> >>
> >>
> >>
> >
>
>
>
>
>
> ____________________________________________________________
> You received this
> message as a subscriber on
> the list:
>
> governance at lists.igcaucus.org
> To be removed from the
> list, visit:
>
> http://www.igcaucus.org/unsubscribing
>
> For all other list
> information and functions,
> see:
>
> http://lists.igcaucus.org/info/governance
> To edit your profile
> and to find the IGC's
> charter, see:
>
> http://www.igcaucus.org/
>
> Translate this email:
> http://translate.google.com/translate_t
>
>
>
>
> --
> 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.<--
>
> ____________________________________________________________
>
> You received this message as a
> subscriber on the list:
>
> governance at lists.igcaucus.org
>
> To be removed from the list, visit:
>
>
> http://www.igcaucus.org/unsubscribing
>
>
>
> For all other list information and
> functions, see:
>
>
> http://lists.igcaucus.org/info/governance
>
> To edit your profile and to find the
> IGC's charter, see:
>
> http://www.igcaucus.org/
>
>
>
> Translate this email:
> http://translate.google.com/translate_t
>
>
> ____________________________________________________________
> You received this message as a
> subscriber on the list:
> governance at lists.igcaucus.org
> To be removed from the list, visit:
>
> http://www.igcaucus.org/unsubscribing
>
> For all other list information and
> functions, see:
>
> http://lists.igcaucus.org/info/governance
> To edit your profile and to find the
> IGC's charter, see:
> http://www.igcaucus.org/
>
> Translate this email:
> http://translate.google.com/translate_t
>
>
>
> ____________________________________________________________
> You received this message as a subscriber on the
> list:
> governance at lists.igcaucus.org
> To be removed from the list, visit:
> http://www.igcaucus.org/unsubscribing
>
> For all other list information and functions, see:
> http://lists.igcaucus.org/info/governance
> To edit your profile and to find the IGC's charter,
> see:
> http://www.igcaucus.org/
>
> Translate this email:
> http://translate.google.com/translate_t
>
>
>
>
>
>
>
> ____________________________________________________________
> You received this message as a subscriber on the list:
> governance at lists.igcaucus.org
> To be removed from the list, visit:
> http://www.igcaucus.org/unsubscribing
>
> For all other list information and functions, see:
> http://lists.igcaucus.org/info/governance
> To edit your profile and to find the IGC's charter, see:
> http://www.igcaucus.org/
>
> Translate this email: http://translate.google.com/translate_t
>
>
> ____________________________________________________________
> You received this message as a subscriber on the list:
> governance at lists.igcaucus.org
> To be removed from the list, visit:
> http://www.igcaucus.org/unsubscribing
>
> For all other list information and functions, see:
> http://lists.igcaucus.org/info/governance
> To edit your profile and to find the IGC's charter, see:
> http://www.igcaucus.org/
>
> Translate this email: http://translate.google.com/translate_t
>
>
>
>
--
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.<--
-------------- next part --------------
____________________________________________________________
You received this message as a subscriber on the list:
governance at lists.igcaucus.org
To be removed from the list, visit:
http://www.igcaucus.org/unsubscribing
For all other list information and functions, see:
http://lists.igcaucus.org/info/governance
To edit your profile and to find the IGC's charter, see:
http://www.igcaucus.org/
Translate this email: http://translate.google.com/translate_t