[CCWG-ACCT] RES: premature jurisdiction debates

Mon Jun 27 13:44:54 UTC 2016

I’m sorry I wasn’t at the talk Pedro so we could have chatted – but I
disagree with the premise.  At least in part because the alternate
jurisdiction (on whatever scale you want to measure it) might “solve”
whatever problems you identify but also bring with it other problems of
greater, lesser, or different degrees.  It is in my view completely
unworkable to say, hypothetically, “the labor laws of the US are a problem
that can be solved by moving to XXX” without also saying at the same time
that “moving to XXX will, however, bring with it significant banking
restrictions”  
. (again just an example).  By attempting to identify
“problems” in the first instance through a single lens you are, in my view,
trying to put your thumb on the scale.  I can find problems everywhere I
look – the only real question is the balance of the trade offs and you can’t
answer that by ignore the trade offs.

Paul

Paul Rosenzweig

 <mailto:paul.rosenzweig at redbranchconsulting.com>
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From: Pedro Ivo Ferraz da Silva [mailto:pedro.ivo at itamaraty.gov.br] 
Sent: Monday, June 27, 2016 9:34 AM
To: Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com>; 'Guru
Acharya' <gurcharya at gmail.com>; 'Accountability Cross Community'
<accountability-cross-community at icann.org>
Subject: RES: [CCWG-ACCT] RES: premature jurisdiction debates

Hi Paul, 

In order to classify as an alternative, my understanding (as I mentioned
during the Q&A session after my lightning talk) is that any solution needs
to solve the problems identified in the current set up. Otherwise it isn't
an alternative. And please note that I am not necessarily talking about
problems related to the jurisdiction of ICANN's place of incorporation, but
problems related to all different aspects of jurisdiction (what those are,
it is up to the subgroup, and later the CCWG, to discuss).  

Regards,

Pedro  

  _____  

De: Paul Rosenzweig [paul.rosenzweig at redbranchconsulting.com]
Enviado: segunda-feira, 27 de junho de 2016 10:13
Para: Pedro Ivo Ferraz da Silva; 'Guru Acharya'; 'Accountability Cross
Community'
Assunto: RE: [CCWG-ACCT] RES: premature jurisdiction debates

I would respectfully disagree Pedro – the question is not about ICANN’s
existing jurisdiction alone.  It must be about any alternative as well – and
that alternative needs to be a concrete proposed one (e.g. move ICANN to
Turkey, or Egypt) and not about some theoretical construct that has no basis
in realistic appraisals.  If you want to have more than one alternative I’m
fine with that – but you can’t just ask the question of “what are the
problems we might encounter where we are” without also asking “and will that
change if we change?”

Cheers

Paul

Paul Rosenzweig

 <mailto:paul.rosenzweig at redbranchconsulting.com>
paul.rosenzweig at redbranchconsulting.com

O: +1 (202) 547-0660

M: +1 (202) 329-9650

VOIP: +1 (202) 738-1739

 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com

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From: accountability-cross-community-bounces at icann.org
<mailto:accountability-cross-community-bounces at icann.org>
[mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Pedro
Ivo Ferraz da Silva
Sent: Sunday, June 26, 2016 8:42 AM
To: Guru Acharya <gurcharya at gmail.com <mailto:gurcharya at gmail.com> >;
Accountability Cross Community <accountability-cross-community at icann.org
<mailto:accountability-cross-community at icann.org> >
Subject: [CCWG-ACCT] RES: premature jurisdiction debates

Dear Guru, 

My suggestion is that we tackle the issue of jurisdiction from a perspective
slightly different than the one you presented below.

Since in our report we have clearly indicated that our main broad concern is
about the "Influence that ICANN’s existing jurisdiction may have on the
actual operation of policies and accountability mechanisms", we should
examine all the scenarios through which ICANN's operations may be affected
by the jurisdiction(s) it is subject to (e.g. government sanctions, labour
law, governing law for contracts, etc) and evaluate to what extent those
"obligations" may exercise undue interference in ICANN's global policy-based
operations. 

This initial assessment is key so that we can have a clear idea of (i) all
the different facets of jurisdiction and (ii) which of those facets really
matter when it comes to enhancing ICANN's responsibility as an entity with a
global remit   (which involves - to the extent possible - not being subject
to unilaterally imposed obligations defined outside the global
multistakeholder community). 

That being said, I wouldn't assume from the start that any subject is off
the table. We just need to bear in mind that we have a new accountability
system set up and that we need to check to what extent this "new ICANN" is
able to cope with the jurisdiction-related issues to be identified in WS2.
Then, we should look for possible alternatives to improve this "new ICANN".

In this exercise, it is fundamental not to anticipate any result.    

Regards,

Pedro

  _____  

De: accountability-cross-community-bounces at icann.org
<mailto:accountability-cross-community-bounces at icann.org>
[accountability-cross-community-bounces at icann.org] em nome de Guru Acharya
[gurcharya at gmail.com]
Enviado: domingo, 26 de junho de 2016 8:15
Para: Accountability Cross Community
Assunto: Re: [CCWG-ACCT] premature jurisdiction debates

The following are my inferences from today's lightening talks on
jurisdiction: 

1) There will clearly be a concerted effort to incorporate a principle
stating that "WS2 can not undo WS1". Since WS1 is embedded in California
Law, any discussion on jurisdiction of incorporation in WS2 will effectively
be foreclosed. Unfortunately, this ignores the fact that when the bucket
list for WS1 and WS2 was created, it was never implied that WS2 is less
important than WS1, or that in case of conflict between WS1 and WS2, the
decisions of WS1 would prevail. The only distinction at that time was that
WS1 will help achieve WS2 after the transition. I believe any change in that
would violate to the conditions put forth at that juncture.

2) Jurisdiction will be recognised as a multi-layered issue not just limited
to place of incorporation.  The following layers will be discussed:

Layer 1: Jurisdiction of incorporation & operations, including - tax system,
human resources, etc.

Layer 2: Jurisdiction of physical presence

Layer 3: Jurisdiction about contractual relationships: governing law for
contracts with registrars and registries and ability to sue and be sued

Layer 4: Jurisdiction to sue and be sued for action & inaction of Staff, and
for redress and review of Board Decisions, IRP, and other Accountability and
Transparency issues, including AoC

Layer 5: relation with the national jurisdictions for particular domestic
issues (ccTLD´s managers, protected names either for International
Institutions or Country and other geographic names, national security,
etc.), privacy, freedom of expression

Interference by non-US state actors will also be included in the discussion
with respect to Layers 3 to 5.

The chairs were categorical in their understanding that Layer 1 on
jurisdiction of incorporation has already been decided in WS1 and any change
in it will upset WS1. Thus, in the upcoming discussions, all layers will be
discussed except for Layer 1 which is the jurisdiction of incorporation.
This is ironical because the entire political context for the IANA
transition is based on Layer 1 of jurisdiction.

On Sun, Jun 26, 2016 at 3:46 PM, parminder <parminder at itforchange.net
<mailto:parminder at itforchange.net> > wrote:

On Sunday 26 June 2016 03:27 PM, Phil Corwin wrote:

There is no international corporate law. Therefore there is no means by
which ICANN can be organized as a non-profit entity under international law
but for a treaty arrangement such as that for the Red Cross. 

Yes, it will be incorporated under special international law created for
that purpose.

How long would that take,

First we have to just decide to do it (that is all to be done at this stage
- which can be done within weeks or a few months of discussion), then let it
take the needed time as long as everyone is working in good faith... It can
even be done in 6-12 months, a simple basic text that incorporates existing
ICANN functions and processes. There is a clear incentive for those who
wants things changed vis a vis US jurisdiction to go through the process
fast, and for those preferring the status quo to keep the text short and as
far as possible making an exact replica of present ICANN at the
international level. Once we agree on these principles, things can move
really fast. In the interim, of course the status quo of US jurisdiction
remains, and so there is no loss.

what would that cost,

what kind of costs?

and what is the justification?

This brings us to the square one of this discussion, while I thought you/ we
were moving forward. The simplest statement of the justification is: a
global Internet cannot be run by US law [no legislation (or adjudication)
without representation]. For implications of this justification, you may try
to answer the questions that I just asked Nigel (and had earlier also asked
you).

parminder 

Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597/Direct
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Twitter: @VlawDC

"Luck is the residue of design." -- Branch Rickey

From:wolfgang.kleinwaechter at medienkomm.uni-halle.de
<mailto:wolfgang.kleinwaechter at medienkomm.uni-halle.de> 

Sent:June 26, 2016 12:27 PM

To:parminder at itforchange.net <mailto:parminder at itforchange.net> ;
asoto at ibero-americano.org <mailto:asoto at ibero-americano.org> ;
paul.rosenzweig at redbranchconsulting.com
<mailto:paul.rosenzweig at redbranchconsulting.com> ;
accountability-cross-community at icann.org
<mailto:accountability-cross-community at icann.org> 

Subject:Re: [CCWG-ACCT] premature jurisdiction debates

P:
There is something called international law..... Like we are an
international community working on an international issue, there is also
international law.

W:
I am always perplexed that we have the same discussion again and again. The
subject of international law is the state, represented by its government.
Governments negotiate treaties. The primary source of international law is
the Charter of the United Nations. The seven principles there - including
sovereign equality of states - are seen as jus cogens. The rules for
treaties are laid down in the the Vienna Convention on the Law of Treaties.
Governments can delegate some rights - via an international treaty - to an
intergovernmental organisation, as UNESCO, ITU and others.Such organizations
become a subject sui generis under international law and can negotiate
treaties with their host countries. Governments can also create
international courts - as the International court of justice in The Hague or
the Rome Statute. But in case of a conflict, the conflicting parties are
governments, not private legal or natural persons.  

This is rather different from what we have with ICANN. ICANN is a non-for
profit private corporations which operates n the public interest. In its
Articles of Incorporation ICANN makes clear that in operates within the
framework of international law. That means ICANN respect the national
sovereignty of states, does not interfere into internal affairs of other
countries etc. But ICANN is not a subject under international law.
Governments participate in ICANN in an advisory role. The role is specified
in the bylaws.  

If Parminder proposes an intergovernmental organizations for the governance
of the Internet (or an intergovernmental framework convention for the domain
name system) he should say so. Theoretically this is an option. Governments
are free to negotiate anything as long as they find negotiation partners. It
took 25 years to negotiate the 3rd Law of th Sea Convention. It took more
than 20 years to negotiate the Rome Treaty. An the negotiations for a treaty
on climate change started in the early 1990s. At this stage I do not see any
intention of governments to enter into a new intergovernmental codification
conference to negotiate an Internet treaty.   

BTW, individuals can start a case against private corporations if those
corporations violate their rights they have in the country where they live.
The case Schrems vs. Facebook is a good example. Facebook is incorporated in
the US but does business in Europe. The European Court of Justice decided
that Facebook has to respect  the rights of privacy of Mr. Schrems, a
citizen of Austria. 

Hope this helps to end this useless debate. 

Wolfgang
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