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No, ICANN isn’t moving to Switzerland

Kevin Murphy, September 6, 2013, 11:03:15 (UTC), Domain Policy

There’s a rumor going around this morning that ICANN is planning to up sticks from its US base in California and become subject to Swiss jurisdiction instead.

While this would be a huge change for ICANN, which has been tethered to the US government since its formation in 1998, it’s almost certainly not what’s happening.

The rumor emerged following CEO Fadi Chehade’s speech at the Asia Pacific Regional Internet Governance Forum in Korea yesterday, during which he talked about setting up a “legal structure” in Switzerland.

Addressing long-standing criticisms that ICANN is too US-centric, he discussed the recent creation of “hub” offices in Istanbul and Singapore, then said:

You heard me announce recently in Durban that ICANN, for the first time, is setting up a legal structure in Switzerland. That means that ICANN is going to seek to become an international organization that is serving the world, not just as a private corporation in California. These are important fundamental steps that we are exploring in order for ICANN to take a new global posture.

That ICANN wants a Swiss presence is not news. At the Durban meeting in July Chehade said publicly that ICANN had opened an “engagement center” in Geneva, headed by his senior adviser Tarek Kamel.

But the version of the Chehade quote doing the rounds on mailing lists today capitalizes “International Organization”, which arguably changes the meaning and makes his remarks seem more profound.

A capitalized “International Organization” can mean one of two legal structures: either an International Non-Governmental Organization or an Intergovernmental Organization.

That would, indeed, imply a change of jurisdiction. ICANN is currently, legally, a California non-profit corporation.

However, if Chehade just said “international organization” with no implied upper-case letters, it just means it’s an organization with offices and legal entities internationally.

I think this is closer to the truth, and so do People In A Position To Know whom I’ve run this by this morning.

It’s important to note that ICANN’s Affirmation of Commitments with the US government forces it to stay headquartered in the US:

ICANN affirms its commitments to: … remain a not for profit corporation, headquartered in the United States of America with offices around the world to meet the needs of a global community;

While Chehade has expansionist plans on a scale beyond any of his predecessors, it seems unlikely that these include breaking the AoC, incurring the wrath of the US government.

UPDATE: ICANN has provided DI with the following statement:

ICANN is not currently planning to set up a headquarters office in Switzerland. We will have an engagement center in Geneva, along with others scattered around the world but our three main hubs, as Fadi has previously announced, will be in L.A., Istanbul and Singapore.

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Comments (7)

  1. Avri Doria says:

    There are a lot of things I fault Fadi and crew for. But in this case, he really does appear to be following through on his promise to internationalize ICANN, while leaving the headquarters under US jurisdiction.

    I have long favored internationalization of ICANN. And by that I don’t mean becoming some form of ITU-A, but having a genuinely international profile that fits its unique multistakeholder aspirations. I am not sure that it can be done while maintaining a US headquarters, and I am also not sure that the international fuzzing that ICANN Staff is working on will be sufficient – but it is a start. I also understand that the consensus based contracts by which ICANN performs its regulatory function are dependent on US law, as well as the IANA contract having been restricted to US domiciled companies. This limits the ability to become fully international. Since I first heard of the GDD, it seemed like the vehicle by which ICANN could be international and yet remain a US non-prift for the purpose of its contracting on gTLDs.

    It is an interesting evolutionary process on a necessary goal, so i wish all those in ICANN staff who are moving around the world, the best of luck in genuinely internationalizing.

  2. Becky Burr says:

    Like Avri, I support continued internationalization of ICANN. That said, the concerns being expressed about Fadi’s statement in Korea go beyond punctuation and are not really about jurisdiction.

    Fadi’s statement implies that the Geneva office is not a continuation of its current internationalization efforts – rather, ICANN is ‘seeking to become” something that it is not currently. But under your definition, isn’t ICANN already an “international organization”? It has formal operations outside of the US. The Brussels office is a “branch” of the US organization, but it is still subject to the jurisdiction of Belgium with respect to its activities there. ICANN will be subject to Swiss law with respect to its activities in Switzerland, whether it operates as a branch or a separate legal entity.

    According to the OECD, international organizations (lower or upper case) are “entities established by formal political agreements between their members that have the status of international treaties; their existence is recognised by law in their member countries; they are not treated as resident institutional units of the countries in which they are located.”
    http://stats.oecd.org/glossary/detail.asp?ID=1434

    At least some folks – particularly in Geneva – will hear that definition when Fadi talks about an “international organization.” Even if the only change Fadi was signaling is the corporate form ICANN is adopting for its Geneva operations, use of the term “international organization” is at least confusing – and potentially a lot more than confusing.

    • Kevin Murphy says:

      I don’t doubt that ICANN eventually wants to throw off the shackles of the US and become a proper international organization. That goal predates Chehade.

      Correct me if I’m wrong, but wasn’t it supposed to happen before Clinton left office?

      If it does happen, I expect it will happen gradually. The Geneva office is probably one step along that process. The point of this article was to clarify that it’s not happening this week.

      • Becky Burr says:

        By “proper international organization” do you mean an organization that enjoys privileges, immunities, and exemptions from local law such as the International Fertilizer Development Center or the International Committee on the Red Cross? If so, there was never any expectation that ICANN would become that. In fact, the White Paper specifically talks about the importance of applicable law continuing to apply – e.g., competition law. (And “applicable” does not equate to US law in that context.)

        • Kevin Murphy says:

          I lack the legal training to respond to that question in any useful way.

          I merely meant an organization whose powers do not flow from any one specific government.

          I may have accidentally conflated and confused ICANN with IANA in my previous comment about the Clinton timeline.

    • Kevin Murphy says:

      To answer your original question, I don’t think Chehade intended “international organization” to mean anything more than the common meaning of the term. I don’t think it was his intention to leak out ICANN’s plans for world domination.

      I think it’s much more likely that Chehade was just catering his speech to his local audience, as is his wont.

      He started the speech by claiming Asia as his “birth continent”. He was born in Beirut. The speech was delivered in Seoul. I’ve never been to either city but I don’t think they have much in common.

      When he was speaking in Africa earlier this year, he described himself as an African.

      When he was talking to registries and registrars, he described himself as a businessman with their interests in mind.

      When he was talking to IP interests later he backtracked and described himself as a public servant.

      It’s just the way he delivers speeches. He talks to his audience. That’s why my April 1 blog post this year was about him accidentally walking into the wrong conference and explaining his plan to cure herpes.

      In this speech in Korea, he wasn’t attempting to secretly tip off IGO types about his ambitions to make ICANN an “International Organization”, he was just telling his Asian audience that ICANN is not just American.

      In my opinion, that’s all it was.

  3. Rubens Kuhl says:

    Switzerland jurisdiction is already defined in new gTLD agreements for IGOs and governmental entities:

    [Alternative Section 5.2 Arbitration text for intergovernmental organizations or governmental entities or other special circumstances:]

    (…)
    In any litigation involving ICANN concerning this Agreement, jurisdiction and exclusive venue for such litigation will be in a court
    located in Geneva, Switzerland, unless another location is mutually agreed upon by
    Registry Operator and ICANN;

    —–

    Without knowledge of swiss laws I won’t guess if it’s required for at least one party to have a legal presence in Switzerland to have a case heard by swiss courts, but it probably doesn’t hurt.

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