[CCWG-ACCT] Call for requirement on the issue of jurisdiction
Mathieu Weill
mathieu.weill at afnic.fr
Thu Mar 19 20:55:23 UTC 2015
Dear Carlos, Dear Greg, Dear Colleagues,
I fully agree that we need to focus our work on work stream 1 issue, as
was recalled during our last meeting. Still, it is important however
that we can explain why a specific topic was considered relevant for a
work stream.
Carlos, from your message, I understand that you suggest to identify the
various layers of the jurisdiction issue. My understanding is that the
following layers are mentioned in your messages :
- place and jurisdiction of incorporation
- jurisdiction of places of physical presence
- governing law for contracts
- ability to sue and be sued in a specific jurisdiction
- tax system
I would recommend we use this framework to clarify the associated
requirements. For instance, and I stress this is just personal
brainstorming, for contracts, they need to be in a stable and
predictable legal regime.
The place of incorporation should certainly be in a jurisdiction with
strong corporate governance legislation, providing efficient
accountability, but at the same time, enabling flexibility so that the
multistakeholder model can be translated into this legal framework.
Places of physical presence need to provide stable labour legal
frameworks(to hire staff), and some level of flexibility for visas (to
accomodate international staff and travel by community members)
Physical presence should also take into account security concerns, both
for the sake of staff as well as for operations.
This is the kind of requirement (the above list is non exhaustive and
can be challenged) we should look at to determine our next steps on this
question.
I hope this helps clarify and I encourage the colleagues who brought up
this issue on the list to provide their input.
best,
Mathieu
Le 18/03/2015 19:24, Greg Shatan a écrit :
> 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 <mailto: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 <mailto:crg at isoc-cr.org>
> Skype: carlos.raulg
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> _____________________
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>
>
>
>
>
>
>> On Mar 18, 2015, at 11:02 AM, Mathieu Weill
>> <mathieu.weill at afnic.fr <mailto: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 <tel:%2B33%201%2039%2030%2083%2006>
>> mathieu.weill at afnic.fr <mailto:mathieu.weill at afnic.fr>
>> Twitter : @mathieuweill
>> *****************************
>>
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--
*****************************
Mathieu WEILL
AFNIC - directeur général
Tél: +33 1 39 30 83 06
mathieu.weill at afnic.fr
Twitter : @mathieuweill
*****************************
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