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Effects of ICANN's Legal Presence in the US, Under California Legislation

Excerpts from the recent address of the President and CEO of ICANN to the Working Group for Internet Governance (WGIG).

ICANN's establishment in California is a consequence of history. Jon Postel, the long standing coordinator of the IANA functions was based at the University of Southern California. Jon was designated ICANN's first Chief Technology Officer but was preempted from taking the position due to his untimely death. The legal instrument available in California to establish such a public benefit function, including its multi-stakeholder expression, is a not-for-profit, public benefit corporation. I must stress that the term 'corporation' here does not mean the usual private sector or for-profit company. But the ICANN Board does understand that the term may cause confusion, especially to people not aware of California not-for-profit law.

ICANN's agreements with registries and registrars are based in well-established principles of international private law. Cognizant of the questioning about the reliance on a single legal jurisdiction, ICANN has started amending its generic Top Level Domain agreements to enshrine dispute resolution through compulsory arbitration under the auspices of the International Chamber of Commerce in Paris or other similar international dispute resolution forums.

During the discussions around the WGIG a number of legal models concerning the hosting of coordination functions, have been raised. ICANN has listened to these discussions very carefully.

It is also dedicated to complying with a whole series of good-governance benchmarks now being discussed in the WSIS and WGIG as a requirement for all partner organizations involved in Internet Governance. We are also bound by the high standards of corporate governance required in our Bylaws.

Related Sources:
- Address of Dr. Paul Twomey to the Working Group for Internet Governance [PDF]
- Working Group on Internet Governance (WGIG)
- WGIG Public Meeting considers Role of GAC in ICANN

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Re: Effects of ICANN's Legal Presence in the US, Under California Legislation ddk12lt  –  Jun 21, 2005 9:08 AM PDT

Jon Postel was not 'preempted' from taking the position, he was 'prevented' by his passing.  Your choice of words and seeming lack of respect for the late father of IP degrade the quality of your message.  Jon wished never to be deified yet always assumed responsibility for ensuring the internet protocol met out ever growing need.  There is no sainthood in our line of work, but if there were, there would be a Saint Jon.

Re: Effects of ICANN's Legal Presence in the US, Under California Legislation Karl Auerbach  –  Jun 21, 2005 10:09 AM PDT

1. Jon Postel was never designated as ICANN's CTO.  It was clear during ICANN's formation that the position was likely to be filled by Jon.  However, it is incorrect to say that there was a formal decision to chose Jon.  Now that said, much that happened during ICANN's formation occurred behind closed, locked doors.  I was told by ICANN's founder, Joe Sims, changes in the yet-to-be formed ICANN were not possible because to do so would be to upset this-and-that unpublished agreement with those-and-these unmentioned parties.  So the existance of secret quid-pro-quos is not surprising.  Perhaps the nomination of Jon was among those choices and agreements about ICANN made by unknown people in unknown rooms.

2. As for ICANN being a California Corporation - yes it is, and as my winning lawsuit showed, ICANN is 100% subject to the laws of California.

It is simply false to believe that ICANN is in some way different than every other California public-benefit/non-profit corporation in terms of its obligations and constraints.

ICANN likes to try to portray itself as something new under the sun.  It isn't.

ICANN is simply an industrial forum in which those who sell domain name products come to gather to decide who might be allowed to join the sellers club, what the terms of the products should be, what the minimum prices can be, and so forth.  In other words, ICANN is a combination of incumbant domain name businesses where decisions are made to restrain and channel the trade in domain names.

The problems of globalization affect all of us - many of us have to deal with issues of international contracts.  Does that make us into some sort of unworldy saints?  No.  Nor does the fact that ICANN also walks on an international stage make it any less subject to the laws and restrictions of the jurisdiction that gives it legal existance.

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