[CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

[Phil Corwin]

I believe that requesting views regarding “providing possible jurisdictional immunity” are both misleading and outside the scope of this WG.

ICANN based upon the MSM is of necessity an entity that is private in nature in which civil society, academia, business, and other private parties formulate policy and governments have a secondary role to  provide advice. The only entities I know other than nation-states that enjoy any degree of jurisdictional immunity are International Intergovernmental Organizations (IGOs) established by treaty, and in those organizations governments have the controlling role. Hence, pursuit of any type of jurisdictional immunity is equivalent to an effort to change the fundamental nature of ICANN,  as well as being in violation of the key condition of the IANA transition, which is that ICANN would not become an IGO. In addition, providing ICANN with jurisdictional immunity would insulate it from legal process and hence undermine accountability.

Finally, as I know based upon my current tenure as Co-Chair of the WG looking at access to curative rights processes by IGOs, when we sought expert legal advice on the recognized scope of immunity for IGOs we learned that such immunity is not absolute and that the scope is based upon the specific fact situation involved as well as the national court in which the immunity is claimed. Hence, going down this road would require a tremendous amount of additional legal research dealing with a variety of hypothetical scenarios in separate national jurisdictions.



Philip S. Corwin, Founding Principal
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From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of parminder
Sent: Monday, December 19, 2016 8:10 AM
To: accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results




On Saturday 17 December 2016 12:40 AM, Mueller, Milton L wrote:

SNIP

John Laprise's wording was much, much better:

"What are the advantages or disadvantages, if any, relating to changing ICANN’s jurisdiction*, particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms?"

This formulation does not include possibilities of jurisdictional immunity.

Something like



"What are the advantages or disadvantages, if any, relating to changing ICANN’s jurisdiction*, or providing possible jurisdictional immunity, particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms?"

would be better.

parminder




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