[CCWG-ACCT] [Ws2-jurisdiction] Plenary Reading of Jurisdiction Subgroup Draft Report

Tue Oct 17 14:39:57 UTC 2017

Dear All

I am not sure to be able to participate in the plenary meeting tomorrow,
that places place post midnight for me.

I would like the plenary to consider the dissenting opinion by Brazil
and by me and provide a response on them.

I want to specifically make the following points, and seek response from
CCWG and its Chair.

(1) My main concern is that the issue of "customised immunity" was never
given an "official" chance and space in the jurisdiction sub-group's
working, despite this being perhaps the strongest issue being repeatedly
raised by many members. There was a deliberate dismissive attitude to it
from the very start, till the very end, by those who were conducting the
process. In fact, there remained a deliberate effort to not allow the
proposal of "customised immunity" to even be allowed to be made clear,
which is very different from the group accepting it. Whether at the June
2017 meeting when CCWG chair lumped change of location and/or place of
incorporation of ICANN and the customised immunity as one issue, and
dismissed it, or in the latest sub group's report which says the group
discussed ICANN change of location/ place of incorporation (which it
never did, nor anyone proposed it with any seriousness) but fails to
mention that many members kept raising the "customised immunity" issue
(which term does not even get a mention in the report), it is most
distressing how it was constantly attempted to be shown that these two
were the same issue, when in fact they are very very different. And many
members constantly went to great lengths to explain the difference. As
late as yesterday, Milton Mueller in commenting on two dissent note,s
again tries to make it sound that the immunity proposal is really about
setting up a new inter-gov organisation or something !!

Now, if the process leaders were simply not ready to give even cognitive
space to the main proposal of a big number of members - of customised
immunity -- and accept its "very existence" as distinct from change of
ICANN's location proposal -- incontrovertible evidence of which exists
in the records -- where is the question of it being given due
consideration in the process of consensus building, which by definition
requires full consideration of all views? This is the main reason that,
in my view, there did not exist a consensus building process, and thus
the report and recommendations cannot be considered as consensus report/
recs. (Further explained in my dissent note.)

(2) With regard to the two sets of recs actually made: I am most
concerned by the observation in the report that the sub-group, and by
extension the CCWG, cannot ask ICANN to amend its contract templates (of
course only for future contracts). *Is this a**n appropriate observation
in the view of the CCWG and CCWG's chair?* Did CWG-Stewardship and CCWG-
Accountability 1 not give many recommendation for ICANN to make changes
practically at every level, right up to its mission statement, and
bylaws, and setting up new subsidiary bodies? So, if we can recommends
changed to ICANN's bylaws, why cant we recommend changes to its contract
templates?*I request the CCWG plenary to make a clear determination on
this question*. And if, as I expect CCWG to conclude, it is not a fact
that we cannot recommend ICANN to change its contract templates, then
one of the main recs by the sub-group is basically vitiated on account
of a wrong assumption, and the report should be returned to it for
re-development.

(3) The sub-group's report provides ICANN with a series of option on how
the "choice of law" question could be handled. I would like like
clarification on the status of these options. They look like all of them
are presented as agreed by consensus, and thereby it is left to ICANN to
adopt one or the other as it deems fit. Is this so? One of the options
is to keep the status quo (no mention of choice of law) and another is
to enforce a single choice of law on all contracts, that is the laws of
the US and the state of California. My understanding then is that if now
ICANN declares that henceforth no choice of law will be available in its
Registry contracts and that all of them will necessarily be governed
solely by laws of the US and that of the state of California, it can
legitimately claim that it has done so in pursuance of a recommendation
of CCWG (assuming that CCWG adopts the recs developed by the sub group).
*Aga**in, request CCWG and CCWG to make a clear, yes**/ no,
determination on this issue.*

parminder

On Tuesday 17 October 2017 06:46 PM, Paul Rosenzweig wrote:
>
> Please note my apology for the Plenary meeting tomorrow.  I will be on
> a  plane somewhere over the eastern seaboard of the United States.
>
>  
>
> Please accept this note as my reflecting my full support for the two
> recommendations presented by the subgroup and the expression of my
> hope that the Plenary will accept them for first reading and agree to
> them as final recommendations at the second reading in Abu Dhabi
> (which I will also be unable to attend).
>
>  
>
> I also join fully in Milton Mueller’s observation that the minority
> dissenting reports are not really dissents (in the sense of objecting
> to the actual recommendations made) but are more properly
> characterized as lamentations that the work of the subgroup did not
> reach a broader consensus for what the proponents perceive as even
> more substantive reform.  I opposed their proposals in the subgroup as
> impractical and unwise and continue to do so now.  To the extent the
> Plenary considers these dissents I would urge that their concerns be
> tabled and that the plenary move forward with the consensus
> recommendations before it.
>
>  
>
> Paul
>
>  
>
> Paul Rosenzweig
>
> paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>
>
> O: +1 (202) 547-0660
>
> M: +1 (202) 329-9650
>
> VOIP: +1 (202) 738-1739
>
> www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
>
> My PGP Key:
> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
>
>  
>
> *From:* ws2-jurisdiction-bounces at icann.org
> [mailto:ws2-jurisdiction-bounces at icann.org] *On Behalf Of *Greg Shatan
> *Sent:* Monday, October 16, 2017 11:37 PM
> *To:* ws2-jurisdiction <ws2-jurisdiction at icann.org>
> *Subject:* [Ws2-jurisdiction] Plenary Reading of Jurisdiction Subgroup
> Draft Report
>
>  
>
> All,
>
>  
>
> I'd like to remind you that at the upcoming CCWG-Accountability
> Plenary on October 18 at 19:00 UTC, there will be a *first reading of
> the draft recommendations*. 
>
>  
>
> If it passes this first reading, it will be presented for a second
> reading at the Face-to-face meeting on 27 October.
>
>  
>
> If it fails to pass a second reading at the 27 October meeting, it
> cannot be included in the final report.
>
>  
>
> If it fails to pass a first reading at the 18 October meeting it would
> require exceptional circumstances to have it pass a second reading at
> the 27 October meeting.
>
>  
>
> Please attend the Plenary session so that your views are heard, and so
> you can hear the views of other members of the Plenary.
>
>  
>
> Greg
>
>
>
> _______________________________________________
> Ws2-jurisdiction mailing list
> Ws2-jurisdiction at icann.org
> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

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