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

Fri Mar 20 17:08:53 UTC 2015

In addition to the below pointers identified by Mathieu, I would like to
add a few more questions for discussion:

- 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

   - What laws should determine what domain names (including TLDs) are
   acceptable (example of '.xxx' domain)?
   - What laws determine whether domains from a particular region can be
   cancelled?
   - What laws should determine whether IP addresses or domain names are
   property or not? Should the local court decision be enforceable across the
   globe?
   - What laws should govern whether domain seizure can take place based on
   local court decisions citing IP infringement?
   - What laws should determine whether citizens of a particular nation
   states can apply for gTLDs or not?

Regards,
Rahul Sharma

On 20 March 2015 at 02:25, Mathieu Weill <mathieu.weill at afnic.fr> wrote:

>  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>
> 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 <%2B506%208335%202487> (cel)
>> +506 4000 2000 <%2B506%204000%202000> (home)
>> +506 2290 3678 <%2B506%202290%203678> (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 <%2B33%201%2039%2030%2083%2006>
>> mathieu.weill at afnic.fr
>> Twitter : @mathieuweill
>> *****************************
>>
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>
> --
> *****************************
> Mathieu WEILL
> AFNIC - directeur général
> Tél: +33 1 39 30 83 06mathieu.weill at afnic.fr
> Twitter : @mathieuweill
> *****************************
>
>
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