QUESTIONS FOR ICANN LEGAL FROM CCWG ACCOUNTABILITY JURISDICTION SUBGROUP

 

The CCWG-Accountability Jurisdiction Subgroup would like to understand in which jurisdictions ICANN (incorporated as a nonprofit company corporation in California) may be subject to litigation as a defendant (i.e., where the court’s personal jurisdiction over ICANN may be satisfied and maintained ).  The Jurisdiction Subgroup would appreciate the assistance of ICANN Legal in this task.  The Subgroup has prepared the following questions:

 

1.  We have assumed, but would like to confirm, that ICANN is subject to suit in the countries where it has the following “physical presences”:

 

  • Headquarters office and state of incorporation:
    • USA (specifically Los Angeles, California)
  • Hub offices:
    •   USA (specifically Los Angeles, California )
    • Turkey
    • Singapore

 

  • Engagement offices:
    • China
    • Belgium
    • Switzerland
    • Uruguay
    • Kenya
    • Republic of Korea
    • USA (specifically Washington DC)

2.  We believe it would be useful for us to know whether jurisdiction over ICANN in litigation could be maintained elsewhere (other than the above) . Specifically, we would like to know about the following categories of jurisdictions:

   

a. Countries other than the above where ICANN employees reside and work remotely (and are being paid by ICANN in the employee’s local currency ? )

 

b.  Countries where ICANN has no ongoing physical presence but has held one or more ICANN public meetings (e.g.,  ICANN 57 in Hyderabad, India) or other significant events (e.g., GDD Summit) which are significant to ICANN’s multistakeholder operations.

 

c.  Countries where ICANN meets none of the above criteria.

 

d.  US states other than California .

 

3.  If there is a judgment against ICANN, would the impact differ based on the category of jurisdiction above?

 

4.  How would concepts of general jurisdiction vs. specific jurisdiction apply to any of the above questions?

 

5.  How do issue s of proper venue (or the lack thereof) impact the answers to the above questions?  

 

5.  How would questions 1-2 be answered for PTI, rather than ICANN?

 

We note that in its   Articles of Incorporation   ICANN states, among other things, that it shall promote the global public interest in the operational stability of the Internet and that it will operate for the benefit of the Internet community as a whole, carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law.

 

And w W e also note that in its Bylaws ICANN commits, among other things, to operate for the benefit of the Internet community as a whole, carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law.  

 

We generally understand that in many places jurisdiction for litigation is premised on physical presence in some manner. But we wonder whether in the digital age the concept of “targeting” (or some other legal theory) can be used as a basis for litigation jurisdiction over ICANN .

 

In other words we wonder whether a party, based where ICANN has no office, could successfully maintain a lawsuit against ICANN in a local court based on the argument that ICANN targeted them improperly for some action.

 

We are looking for general advice rather than a country-by-country analysis, being interested in trends and reasonable probability and not legal certainty at this point.