[CCWG-ACCT] Call for requirement on the issue of jurisdiction

Wed Mar 18 18:24:29 UTC 2015

I agree with Carlos that the issue(s) of "jurisdiction" are multi-layered.
It's also important to realize that the term "jurisdiction" is used to mean
several different things (place of incorporation, places of physical
presence, governing law, ability to sue and be sued, etc.), and discussions
about jurisdiction often get jumbled up for this reason.

However, I think there is a simple and more fundamental issue with regard
to the discussion of "jurisdiction" (at least in the sense of "place of
incorporation), before we even get to the substance of such a discussion..

It is very important for the CCWG to focus on Work Stream 1 items, since
the IANA Transition is dependent on completion of these items.  Discussion
of ICANN's place of incorporation is a Work Stream 2 item and should not be
dealt with in any depth until Work Stream 1 is complete.

Put another way, the place of incorporation of ICANN will not be changing
before the IANA Transition, and thus the possibility of such changes has no
place in Work Stream 1.  Furthermore, if the CCCWG were to advance any plan
as part of Work Stream 1 to change the place of incorporation of ICANN
after the IANA Transition, this would be rejected by the NTIA and thus
would be an immense waste of time.

This is not to say that discussions of "jurisdiction" (in all of its
meanings and layers) should not take place.  Quite the contrary.  These are
valid and important topics, and they should be given a full and complete
airing.  We just need to prioritize our work appropriately.

Greg Shatan

On Wed, Mar 18, 2015 at 1:38 PM, Carlos Raúl Gutiérrez <crg at isoc-cr.org>
wrote:

> Dear Mathieu,
>
> thank you for this invitation to comment. First of all I have to make a
> disclaimer that I`m not a lawyer and I feel that we a have a superb group
> of knowledgeable and expert lawyers around this issue and I have little to
> add to their discussions. Sometimes i’m even afraid to open my mouth and
> get hit back with a strong legal defence attitude, as recently happened to
> me trying to make sense of the freedom of expression the way I understand
> it.
>
> So let me talk of my personal perception on how this issue has been
> handled, which has not been satisfactory from my perspective. And my
> excuses to all readers if I’m off the mark again.
>
>
>    - The DNS is more global than ever, in different languages and
>    scripts, with many new contracts in the languages (and jurisdictions?) of
>    the new players in new areas of the World. And I think this is very good
>    for the globalisation of the Internet and in response of the search for
>    competition, consumer trust and consumer choice, which for me are not only
>    one of the 4 values of the AoC, but one of the most promising in terms of
>    the future development of the Internet.
>    - Every time the jurisdiction of the corporation itself is mentioned,
>    I get the feeling that we get into a rather negative/defensive mode from
>    different sides, particularly if people are sitting in front of lawmakers.
>    When I started studying public finance and taxation long time ago all
>    important global US corporations where based in Delaware (of all places).
>    Today some of the most important users of the DNS are based in Luxembourg
>    or Ireland to the chagrin of US Tax authorities. From my perspective until
>    we don’t get an harmonised global tax system, private initiatives will be
>    looking for the best balance between where do you business with whom, under
>    or away from what jurisdiction. The recent case of a Hong Kong Bank
>    subsidiary in Switzerland is a cautionary tele to keep in mind.
>    - Then we have the scaremongers who worry not a bout watching soccer
>    games, but about all the money its federation makes and does not get taxed
>    and governed. i.e.FIFA.
>
>
> Obviously between those extreme points of view is difficult to have an
> effective discussion on the "issue of jurisdiction” as you call it, without
> explaining if we are talking about the narrow issues of the global DNS
> contracts the Board has to sign, or about the day to day operations of the
> Corporation, or the  global accountability and transparency standards under
> which ALL (as per NetMundial Statement, section Roadmap) Internet entities
>  should work, so that the systems remains as it is today (and ICANNs luck
> to draw the ticket and become the guinea pig).
>
> So my request is to please make clear on which layer are we talking about
> the jurisdiction issue and why is there a need for a change. For example
>
>    - Is the jurisdiction hindering the globalisation of the DNS because
>    of legal paperwork?
>    - Is the jurisdiction hindering the operations of the corporation,
>    from security and stability, COSTS (particularly for review and redress),
>    tax, human resources, and other operational concerns?
>    - Is the jurisdiction hindering the global public good in terms of
>    access (including cost of access for users), human rights, freedom of
>    expression, competition, etc.?
>
>
> And you don’t have the 3 layers I have proposed, you can choose 6
> different ones, but make it clear from the outset for the benefit of the
> "legally challenged", so there is wider participation in this very
> interesting discussion.
>
> Best luck in Istambul
>
> Carlos Raúl Gutiérrez
> _____________________
>
> email: crg at isoc-cr.org
> Skype: carlos.raulg
> +506 8335 2487 (cel)
> +506 4000 2000 (home)
> +506 2290 3678 (fax)
> _____________________
> Apartado 1571-1000
> San Jose, COSTA RICA
>
>
>
>
>
>
> On Mar 18, 2015, at 11:02 AM, Mathieu Weill <mathieu.weill at afnic.fr>
> wrote:
>
> Dear Colleagues,
>
> During our call yesterday we decided to engage with you to gather input on
> a requirement based approach to the issue of jurisdiction which has been
> raised.
>
> So far this issue has been raised when discussing some of the stress
> tests, the incorporation of the AoC into the Bylaws, as well as in generic
> discussions.
>
> What we are looking for to ensure we keep our discussion at the level of
> accountability and root it into stakeholder expectations, are descriptions
> of accountability requirements that lead you (or some of you) to raise the
> question of jurisdiction. Topics such as applicable jurisdiction of Icann
> contracts have been raised so far for instance.
>
> Thank you in advance for contributing to shaping this important aspect of
> our work. responses are expected before March 20th so that we can organize
> work in Istanbul.
>
> Best
>
> --
> *****************************
> Mathieu WEILL
> AFNIC - directeur général
> Tél: +33 1 39 30 83 06
> mathieu.weill at afnic.fr
> Twitter : @mathieuweill
> *****************************
>
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