[CCWG-ACCT] RES: Cochairs Statement - Istanbul (23-24March 2015)

Greg Shatan gregshatanipc at gmail.com
Fri Mar 27 10:44:13 UTC 2015


We should absolutely ask our outside legal advisors.  I am a practicing US
lawyer speaking to the best of my knowledge after 28 years of practice, but
I am not providing formal legal advice (on the positive side, I'm not
charging anything, either...).  Also, our well-chosen lawyers are superior
corporate governance gurus, and I am happy and relieved to have them on
board.

Greg Shatan

On Fri, Mar 27, 2015 at 6:12 AM, <Jorge.Cancio at bakom.admin.ch> wrote:

>  Dear all – couldn’t we perhaps ask our legal advisors to inform us on
> common practice regarding provisions included usually, if any, on
> jurisdiction issues in Bylaws and Articles of Incorporation (and the
> current situation in the case of ICANN)?
>
>
>
> Best
>
>
>
> Jorge
>
>
>
> *Von:* accountability-cross-community-bounces at icann.org [mailto:
> accountability-cross-community-bounces at icann.org] *Im Auftrag von *Greg
> Shatan
> *Gesendet:* Freitag, 27. März 2015 11:52
> *An:* Perez Galindo, Rafael
> *Cc:* Accountability Cross Community
> *Betreff:* Re: [CCWG-ACCT] RES: Cochairs Statement - Istanbul (23-24March
> 2015)
>
>
>
> Bylaws are typically rules and regulations, not aspirational statements.
> I don't think a general statement about choosing a future jurisdiction (or
> confirming the current one) at some later date is appropriate for a set of
> Bylaws.  On the other hand, it is likely to cause no end of problems in the
> IANA transition.
>
>
>
> We should resist thinking of Work Stream 1 as the "one bite at the apple."
>  If we go down that road, we will back to stuffing everything into Work
> Stream 1.
>
>
>
> In sum, and without diminishing the validity of the issue, the bylaws are
> not the right place and now is not the right time for this type of
> statement.
>
>
>
> Greg Shatan
>
>
>
> On Fri, Mar 27, 2015 at 5:32 AM, Perez Galindo, Rafael <
> RPEREZGA at minetur.es> wrote:
>
>   Dear All
>
> Thank you for this very constructive exchange.
>
> I fully concur with the views expressed by Pedro.
>
> It is pretty clear that we need a stable and predictable legal and
> jurisdictional environment, and those requirements could certainly be
> included in the Bylaws as a way to ensure the compliance with the
> accountability measures designed. But I see no point in setting in stone
> what exact jurisdiction must that be now or in the future, as we would be
> in practical terms precluding other jurisdictions that could perfectly fit
> and comply with these requirements (in and out the USA) to host the
> organization in the long run. To put it bluntly, we ought to set the legal
> needs and conditions in the Bylaws, but not rigidly set or determine only
> one of the several possible solutions in those Bylaws.
>
> The abovementioned is consistent with the GAC input into the process
> regarding this issue (“*Likewise, the GAC is of the view that the CCWG
> elaborate on the implications for ICANN’s mission and its accountability
> associated with jurisdictional differences among the actors involved and
> legal jurisdictional aspects applicable to ICANN*”). In this regard, I
> would like as well to second as well the wording put forward by Pedro: “The
> CCWG will identify eventual gaps in the California State law with respect
> to the implementation of recommended accountability powers and, in a
> subsequent phase, examine alternative jurisdictions where those
> requirements could be implemented to a larger extent".
>
> Best regards
>
> Rafa
>
> GAC_SPAIN
>
>
>
>
>
> *De:* accountability-cross-community-bounces at icann.org [mailto:
> accountability-cross-community-bounces at icann.org] *En nombre de *Phil
> Corwin
> *Enviado el:* jueves, 26 de marzo de 2015 17:19
> *Para:* Pedro Ivo Ferraz da Silva; Carlos Raúl Gutiérrez
> *CC:* Accountability Cross Community
>
>
> *Asunto:* Re: [CCWG-ACCT] RES: Cochairs Statement - Istanbul (23-24March
> 2015)
>
>
>
> Pedro and Carlos:
>
>
>
> Thanks very much for the complimentary statements regarding my comment.
>
>
>
> It’s not for me to say what will ultimately be acceptable to NTIA and
> Congress. As this is an issue to be resolved I will continue to contribute
> to the CCWG’s consideration of it.
>
>
>
> Very best, Philip
>
>
>
> *Philip S. Corwin, Founding Principal*
>
> *Virtualaw LLC*
>
> *1155 F Street, NW*
>
> *Suite 1050*
>
> *Washington, DC 20004*
>
> *202-559-8597 <202-559-8597>/Direct*
>
> *202-559-8750 <202-559-8750>/Fax*
>
> *202-255-6172 <202-255-6172>/cell*
>
>
>
> *Twitter: @VlawDC*
>
>
>
> *"Luck is the residue of design" -- Branch Rickey*
>
>
>
> *From:* Pedro Ivo Ferraz da Silva [mailto:pedro.ivo at itamaraty.gov.br
> <pedro.ivo at itamaraty.gov.br>]
> *Sent:* Thursday, March 26, 2015 12:04 PM
> *To:* Carlos Raúl Gutiérrez; Phil Corwin
> *Cc:* Accountability Cross Community
> *Subject:* RES: [CCWG-ACCT] RES: Cochairs Statement - Istanbul (23-24
> March 2015)
>
>
>
> Dear Phil,
>
>
>
> Also my gratitude for your comments.
>
>
>
> You said "A commitment to US/CA jurisdiction [...] simply provides a
> predictable and stable legal environment for the foreseeable future for an
> organization that operates in large part via contracts and their
> enforcement, and ensures that the legal jurisdiction is the one that the
> accountability measures were designed to  operate effectively within".
> This is probably true, but instead of singling out a specific national
> jurisdiction and thereby "seal for all time" this aspect, why not define
> some requirements for the jurisdiction (e.g. stable legal environment,
> predicable regime, etc) and include those in the bylaws? Would that not be
> sufficient and a viable compromise between the multistakeholder community
> and the government of the United States?
>
>
>
> Roelof,
>
>
>
> With respect to what we tried to agree in the meeting, I would rephrase
> your suggestion to something like: "The CCWG will identify eventual gaps in
> the California State law with respect to the implementation of recommended
> accountability powers and, in a subsequent phase, examine alternative
> jurisdictions where those requirements could be implemented to a larger
> extent".
>
>
>
> Regards,
>
>
>
>
>
> Pedro
>
>
>
>
>  ------------------------------
>
> *De:* accountability-cross-community-bounces at icann.org [
> accountability-cross-community-bounces at icann.org] em nome de Carlos Raúl
> Gutiérrez [crg at isoc-cr.org]
> *Enviado:* quinta-feira, 26 de março de 2015 12:15
> *Para:* Phil Corwin
> *Cc:* Accountability Cross Community
> *Assunto:* Re: [CCWG-ACCT] RES: Cochairs Statement - Istanbul (23-24
> March 2015)
>
> Dear Phil,
>
>
>
> thank you for the clarity of your comments from the point of view the
> non-legally-trained observers. It makes a lot of sense to me.
>
>
>
>
>
> Carlos Raúl Gutiérrez
> _____________________
>
> email: crg at isoc-cr.org
> Skype: carlos.raul
> +506 8335 2487 (cel)
> +506 4000 2000 (home)
> +506 2290 3678 (fax)
> _____________________
> Apartado 1571-1000
>
> San Jose, COSTA RICA
>
>
>
>
>
>
>
>
>
>
>
>  On Mar 26, 2015, at 9:02 AM, Phil Corwin <psc at vlaw-dc.com> wrote:
>
>
>
> Thanks to Jordan and Greg for their feedback on this issue of ICANN
> jurisdiction.
>
>
>
> Of course nothing in this world can ever be “sealed for all time”. We are
> talking about something to be settled for the foreseeable future and,
> perhaps even more important, accepted by consensus within the
> multistakeholder community and thereby not constituting the new
> “irritation” replacing NTIA’s counterparty role for disgruntled parties.
>
>
>
> A commitment to US/CA jurisdiction does not provide the US government with
> any special control over ICANN. It simply provides a predictable and stable
> legal environment for the foreseeable future for an organization that
> operates in large part via contracts and their enforcement, and ensures
> that the legal jurisdiction is the one that the accountability measures
> were designed to  operate effectively within. I concur that “the California
> jurisdiction works just fine for everything we need to do now, and can
> foresee for the future”.
>
>
>
> Cherry-picking the AOC in regard to which bits wind up in the Bylaws will
> certainly raise questions about the parts left behind, especially given the
> likelihood that the current bilateral AOC will be dissolved once the
> transition is completed. This issue is not yet a “breakdown point” but it
> is quite important as both as a matter of accountability measure
> effectiveness and, yes, as a political matter.
>
>
>
> *Philip S. Corwin, Founding Principal*
>
> *Virtualaw LLC*
>
> *1155 F Street, NW*
>
> *Suite 1050*
>
> *Washington, DC 20004*
>
> *202-559-8597 <202-559-8597>/Direct*
>
> *202-559-8750 <202-559-8750>/Fax*
>
> *202-255-6172 <202-255-6172>/cell*
>
>
>
> *Twitter: @VlawDC*
>
>
>
> *"Luck is the residue of design" -- Branch Rickey*
>
>
>
> *From:* Jordan Carter [mailto:jordan at internetnz.net.nz
> <jordan at internetnz.net.nz>]
> *Sent:* Thursday, March 26, 2015 10:38 AM
> *To:* Greg Shatan
> *Cc:* Phil Corwin; Accountability Cross Community
> *Subject:* Re: [CCWG-ACCT] RES: Cochairs Statement - Istanbul (23-24
> March 2015)
>
>
>
> Thanks Greg, Phil.
>
>
>
> I am confident we are aware in the CCWG that we can't unilaterally amend
> the AOC. However, it is also clear that we can choose which bits we propose
> to incorporate in the ICANN Bylaws. Not incorporating some bits has no
> effect on the existing agreement between ICANN and the United States
> government.
>
>
>
> I would note that in respect of the jurisdiction conversation, we have a
> multistakeholder process at work in designing this transition.
>
>
>
> If the question of a "sealed for all time" jurisdiction question derails
> the transition - either by meaning the community can't accept ICANN being
> locked in California forever and thus declines to agree a transition, or
> the United States not accepting a transition that doesn't include that lock
> - then that will be the outcome of the multistakeholder process. The NTIA
> did not define perpetual U.S. presence as a requirement for the transition,
> after all.
>
>
>
> Certainly I hope that this dilemma does not prove to be a breakdown point.
>
>
>
> I say all the above as an individual who thinks the California
> jurisdiction works just fine for everything we need to do now, and can
> foresee for the future.
>
>
>
> best,
>
> Jordan
>
>
>
>
>
> On 26 March 2015 at 16:26, Greg Shatan <gregshatanipc at gmail.com> wrote:
>
> I second Phil's email and hope that some clarity can be brought to those
> unable to participate in the entire CCWG meeting.
>
>
>
> I also want to remind the CCWG that ICANN cannot unilaterally amend the
> Affirmation of Commitments.  The AoC can only be amended by mutual consent
> of the parties.  The U.S. jurisdictional requirement will be there until
> amended by the parties, or the AoC is terminated.  If we want to get into
> discussing terminating the AoC, that is a whole other discussion, and an
> immense step to consider.
>
>
>
> Greg Shatan
>
>
>
> On Thu, Mar 26, 2015 at 10:08 AM, Phil Corwin <psc at vlaw-dc.com> wrote:
>
> I see from the post below  that this issue of ICANN’s future jurisdiction
> has become “a most delicate matter” and remains unresolved and subject to
> further discussion within the CCWG.
>
>
>
> This is a pivotal and very important issue, as the accountability
> mechanisms are being designed (with the assistance of two outside law
> firms) to be consistent with California law and may not operate effectively
> within another legal jurisdiction context. Further, if there is not a
> commitment to remain within US jurisdiction for the foreseeable future (as
> CEO Chehade pledged in Congressional testimony last month) it will raise
> significant political barriers to NTIA approval of and Congressional
> acquiescence to a final transition and accountability package.
>
>
>
> For those of us unable to participate remotely in all the CCWG discussions
> earlier this week, it would be most appreciated if more specificity could
> be provided as soon as possible as to what the various perspectives are on
> this matter and how it is proposed to resolve them, since the final
> determination would seem to be a rather binary decision – either the AOC
> provision committing to US jurisdiction is incorporated within the Bylaws,
> or it is not.
>
>
>
>
>
> *Philip S. Corwin, Founding Principal*
>
> *Virtualaw LLC*
>
> *1155 F Street, NW*
>
> *Suite 1050*
>
> *Washington, DC 20004*
>
> *202-559-8597 <202-559-8597>/Direct*
>
> *202-559-8750 <202-559-8750>/Fax*
>
> *202-255-6172 <202-255-6172>/cell*
>
>
>
> *Twitter: @VlawDC*
>
>
>
> *"Luck is the residue of design" -- Branch Rickey*
>
>
>
> *From:* accountability-cross-community-bounces at icann.org [mailto:
> accountability-cross-community-bounces at icann.org] *On Behalf Of *Thomas
> Rickert
> *Sent:* Thursday, March 26, 2015 6:22 AM
> *To:* Pedro Ivo Ferraz da Silva
> *Cc:* Accountability Cross Community
> *Subject:* Re: [CCWG-ACCT] RES: Cochairs Statement - Istanbul (23-24
> March 2015)
>
>
>
> Dear Pedro,
>
> you are correct. We should have mentioned that we discussed it. As this is
> a most delicate matter and since we agree we would suggest language to
> frame the next steps (you will remember we had not agreed on concrete
> language), I suggest we use the next upcoming opportunity to share the
> progress with the community when we have an agreed language on the matter.
>
>
>
> Thanks for your understanding and for your thoughtful contributions during
> the meeting.
>
>
>
> Best,
>
> Thomas
>
>
>
>  Am 26.03.2015 um 11:17 schrieb Pedro Ivo Ferraz da Silva <
> pedro.ivo at itamaraty.gov.br>:
>
>
>
> Dear Alice, CCWG-colleagues,
>
>
>
> Thanks for the links. I just regret the fact that the CoChairs have missed
> to refer to the important debate the CCWG has held with respect to the way
> moving forward on the issue of jurisdiction. As Mathieu Weill mentioned
> during the second day, this is one of the main issues of concern of
> individuals outside this group and I believe the community deserved at
> least to be briefly informed about this subject.
>
>
>
> Regards,
>
>
>
> Pedro
>
>
>   ------------------------------
>
> *De:* accountability-cross-community-bounces at icann.org [
> accountability-cross-community-bounces at icann.org] em nome de Alice Jansen
> [alice.jansen at icann.org]
> *Enviado:* quarta-feira, 25 de março de 2015 12:13
> *Para:* accountability-cross-community at icann.org
> *Assunto:* [CCWG-ACCT] Cochairs Statement - Istanbul (23-24 March 2015)
>   Dear all,
>
>   This is to inform you that the CoChairs statement (pasted below) may be
> found at: https://www.icann.org/news/announcement-2015-03-25-en
>
>   A video interview with CoChair Thomas Rickert is also available - see:
> https://www.youtube.com/watch?v=vVof6v0MguE
>
>   These links will be added to your wiki pages.
>
>   Thanks,
>
>   Best regards
>
>   Alice
>
>
>  CCWG-Accountability Co-Chairs Statement Istanbul, 25 March 2015 | Thomas
> Rickert, León Sánchez & Mathieu Weill
>
> Members and participants of the Cross Community Working Group on
> Enhancing ICANN Accountability (CCWG-Accountability)
> <https://community.icann.org/display/acctcrosscomm/CCWG+on+Enhancing+ICANN+Accountability> met
> in Istanbul, Turkey, on 23-24 March 2015.
>
> The meeting
> <https://community.icann.org/pages/viewpage.action?pageId=52890276> was
> attended in-person by 42 members and participants. A number of participants
> and observers joined the meeting remotely using the virtual meeting room.
> Three Advisors
> <https://community.icann.org/display/acctcrosscomm/Advisors> also
> participated.
>
> Guided by the four basic building blocks
> <https://community.icann.org/display/acctcrosscomm/Building+Blocks> identified
> at ICANN 52 in Singapore, the group further discussed and refined
> accountability mechanisms that need to be either implemented or, at least,
> committed to before the transition of the IANA stewardship can take place.
>
> The meeting made progress on three main areas:
>
> ·         Enhancing ICANN's Mission and Core Values;
>
> ·         Strengthening the existing independent review process;
>
> ·         Mechanisms for community empowerment.
>
> Specifically, the group discussed changes that should be made to the
> Mission and Core Values inICANN's Bylaws. For example, the group discussed
> how key provisions of the Affirmation of Commitments
> <https://www.icann.org/en/about/agreements/aoc/affirmation-of-commitments-30sep09-en.htm> (AoC)
> could be reflected into the Bylaws.
>
> Additionally, the group worked on strengthening the existing independent
> review process suggesting improvements to its accessibility and
> affordability, and discussed process design including establishment of a
> standing panel with binding outcomes and panel composition (diversity
> etc.). The IRP panel decisions would be guided by ICANN's Mission and Core
> Values.
>
> With regards to mechanisms for community empowerment, the group identified
> powers and associated mechanisms including the ability to:
>
> ·         recall the ICANN Board of Directors;
>
> ·         approve or prevent changes to the ICANN Bylaws, Mission and
> Core Values;
>
> ·         reject Board decisions on Strategic Plan and budget, where the
> Board has failed to appropriately consider community input.
>
> The CCWG-Accountability supported the concept of a Fundamental Bylaw that
> would provide additional robustness to key provisions. The Fundamental
> Bylaw would apply to:
>
> ·         the mission;
>
> ·         the independent review process;
>
> ·         the power to veto Bylaw changes;
>
> ·         new community powers such as recall of the Board and the right
> of the community to veto certain Board actions.
>
> Changes to the Fundamental Bylaws would require high standards for
> approval by the community.
>
> The notion of an empowered community involved discussion of community
> representation, i.e. who constitutes the community.  The
> CCWG-Accountability is also aware that to wield these new powers, the
> community, however it is constituted, must itself meet high standards of
> accountability. ICANN's accountability would also be enhanced by ensuring
> its operations and processes are more globally inclusive.
>
> The group has engaged two law firms to provide independent legal advice
> and confirm feasibility of the suggested frameworks. The firms are Adler &
> Colvin and Sidley & Austin.
>
> As work progresses, all recommendations will be subject to the stress
> tests against contingencies already identified. The stress test methodology
> has been successfully tested against the draft accountability mechanisms.
>
> The CCWG-Accountability is confident that their proposed mechanisms will
> satisfy the needs of the CWG-Stewardship1
> <https://www.icann.org/news/announcement-2015-03-25-en#_ftn1> as they
> look to stronger accountability protections. The CCWG-Accountability and
> CWG-Stewardship Co-Chairs met to update and fully brief each other on the
> progress made so far. They outlined key areas of accountability that the
> CCWG-Accountability Co-Chairs considered are most relevant for the current
> and ongoing work of the CWG-Stewardship. The CCWG-Accountability Co-Chairs
> will brief the CWG-Stewardship in the opening part of their face-to-face
> meeting on Thursday, 26 March.
>
> *Next Steps:*
>
> The CCWG-Accountability will continue refining its recommendations. The
> community is expected to provide feedback during a public comment period to
> be held before ICANN 53, Buenos Aires meeting.  The results of the public
> comment period will inform further deliberations during that meeting.
>
> The group is developing an engagement plan to ensure its proposals are
> widely known and understood, and to encourage comprehensive response to
> proposals during the public comment period.
>
> The CCWG-Accountability Co-Chairs recognize the outstanding volunteer work
> that has produced these substantive proposals in a very short period of
> time.  The community's effort has been exceptional.
>
> *About the CCWG-Accountability*
>
> The CCWG-Accountability was established to ensure that ICANN's
> accountability and transparency commitments to the global Internet
> community are maintained and enhanced in the absence of the historical
> relationship with the U.S. Government.
>
> The group has divided its work into two work streams (WS):
>
> ·         WS1 is focused on identifying mechanisms
> enhancing ICANN accountability that must be in place or committed to within
> the timeframe of the IANA Stewardship Transition;
>
> ·         WS2 is focused on addressing accountability topics for which a
> timeline for developing solutions and full implementation may extend beyond
> the IANA Stewardship Transition.
>
> The CCWG-Accountability consists of 177 people
> <https://community.icann.org/pages/viewpage.action?pageId=50823970>,
> organized as 26 members
> <https://community.icann.org/pages/viewpage.action?pageId=50823968>,
> appointed by and accountable to chartering organizations, 151 participants
> <https://community.icann.org/pages/viewpage.action?pageId=50823968>, who
> participate as individuals, and 46 mailing list observers
> <https://community.icann.org/display/acctcrosscomm/Mailing+List+Observers>.
> The group also includes one ICANN Board liaison, one ICANN staff
> representative, and one former ATRT member who serves as a liaison. In
> addition, there are 4 ICG members who participate in the
> CCWG-Accountability, including two who serve as liaisons between the two
> groups.
> Seven Advisors <https://www.icann.org/news/announcement-2014-12-17-en> have
> also been appointed to contribute research and advice, and to bring
> perspectives on global best practices to enrich the CCWG-Accountability
> discussion.
> The CCWG-Accountability is an open group: anyone interested in the work of
> the CCWG-Accountability, can join as a participant or observers.
> Participants or observers may be from a chartering organization, from a
> stakeholder group or organization not represented in the
> CCWG-Accountability or currently active within ICANN, or self-appointed.
>
> For more information on the CCWG-Accountability or to view meeting
> archives and draft documents, please refer to their dedicated wiki
> <https://community.icann.org/display/acctcrosscomm/CCWG+on+Enhancing+ICANN+Accountability>
> .
>
> A video interview with CCWG-Accountability Co-Chair Thomas Rickert can be
> seen here <https://www.youtube.com/watch?v=vVof6v0MguE>.
>   ------------------------------
>
> 1 <https://www.icann.org/news/announcement-2015-03-25-en#_ftnref1> Cross
> Community Working Group (CWG) to Develop an IANA Stewardship Transition
> Proposal on Naming Related Functions
>
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
>
>   ------------------------------
>
> No virus found in this message.
> Checked by AVG - www.avg.com
> Version: 2015.0.5751 / Virus Database: 4306/9294 - Release Date: 03/13/15
> Internal Virus Database is out of date.
>
>
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
>
>
>
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
>
>
>
>
> --
>
> Jordan Carter
>
> Chief Executive
> *InternetNZ*
>
> 04 495 2118 (office) | +64 21 442 649 (mob)
> jordan at internetnz.net.nz
> Skype: jordancarter
>
> *A better world through a better Internet *
>    ------------------------------
>
> No virus found in this message.
> Checked by AVG - www.avg.com
> Version: 2015.0.5751 / Virus Database: 4306/9294 - Release Date: 03/13/15
> Internal Virus Database is out of date.
>
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
>
>    ------------------------------
>
> No virus found in this message.
> Checked by AVG - www.avg.com
> Version: 2015.0.5751 / Virus Database: 4306/9294 - Release Date: 03/13/15
> Internal Virus Database is out of date.
>
>
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
>
>
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20150327/54d651c5/attachment.html>


More information about the Accountability-Cross-Community mailing list