<div dir="ltr"><div>Dear All,</div><div>I strongly oppose to</div><div>A) To separate Jurisdiction from WORK Stream 2 </div><div>B) To create a New Group due to the fact that this is not the old or new group which has or will not have problem . The issue is one or perhaps twop countries with their relative strong participation blocking every thing as they want NO CHANGE</div><div>This is a bad advice </div><div>Kavouss </div></div><div class="gmail_extra"><br><div class="gmail_quote">2016-12-24 19:24 GMT+01:00 Nigel Roberts <span dir="ltr"><<a href="mailto:nigel@channelisles.net" target="_blank">nigel@channelisles.net</a>></span>:<br><blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex">Marilyn<br>
<br>
It didn't matter in WS1 when bylaws were written using legal terms-of-art without understanding what they means, and then WS2 sub-groups set up to determine what the true construction of the terms already adopted were . .<br>
<br>
But I agree with your last sentence.<br>
<br>
<blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;padding-left:1ex;border-left-color:rgb(204,204,204);border-left-width:1px;border-left-style:solid"><span>
<br>
<br>
I support Sam's suggestion. Such a sub group or new group could then<br>
advise into the CCWG.<br>
<br>
<br>
BUT, really global legal expertise matters here.<br>
<br>
<br>
M<br>
<br>
<br></span>
ter<br>
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*From:* <a href="mailto:accountability-cross-community-bounces@icann.org" target="_blank">accountability-cross-community<wbr>-bounces@icann.org</a><span><br>
<<a href="mailto:accountability-cross-community-bounces@icann.org" target="_blank">accountability-cross-communit<wbr>y-bounces@icann.org</a>> on behalf of Sam<br>
Lanfranco <<a href="mailto:sam@lanfranco.net" target="_blank">sam@lanfranco.net</a>><br></span>
*Sent:* Saturday, December 24, 2016 10:35 AM<br>
*To:* <a href="mailto:accountability-cross-community@icann.org" target="_blank">accountability-cross-community<wbr>@icann.org</a><br>
*Subject:* Re: [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll<div><div class="h5"><br>
Results<br>
<br>
I may be an isolated outlier here with regard to how to approach the<br>
core issue of jurisdiction within this CCWG, but I will state my view in<br>
as few words as possible. Jurisdiction will remain a major issue whether<br>
this CCWG includes, or excludes, jurisdiction as a question on its<br>
questionnaire, and whether or not it tries to address the issue of<br>
jurisdiction within this CCWG’s deliberations.<br>
<br>
In many ways ICANN is a new form hybrid organization, with its<br>
multistakeholder policy making process, and with its global DNS policy<br>
remit. The jurisdiction issues run both wide and deep, and are not<br>
issues of simply finding the right “residence” for ICANN. They are<br>
about how do we (all stakeholders including governments) figure out how<br>
to handle the jurisdiction related issues posed by ICANN’s<br>
multistakeholder policy making structures, and its global DNS policy<br>
remit. What lessons can we drawn on from experience, and what needs to<br>
be cut from whole cloth (i.e., innovated)?<br>
<br>
While I have no objections to jurisdiction being addressed inside this<br>
Accountability CCWG, I do not see this CCWG as an adequate venue for<br>
such an important issue. The work required to address it properly means<br>
that such a dialogue should take place in a venue (CCWG, whatever)<br>
devoted specifically to the jurisdiction issue. This CCWG could start<br>
the process by recognizing that, stating that the issue warrants its own<br>
CCWG (or whatever), and pressing for rapid movement in that direction. I<br>
could elaborate on each of the above points but I hope that the message<br>
is pretty clear. The rationale for such an approach almost self-evident.<br>
<br>
Sam Lanfranco, NPOC/csih<br>
<br>
<br>
On 12/24/2016 9:53 AM, Pedro Ivo Ferraz da Silva wrote:<br>
</div></div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;padding-left:1ex;border-left-color:rgb(204,204,204);border-left-width:1px;border-left-style:solid"><div><div class="h5">
Dear CCWG-colleagues,<br>
<br>
After reading some comments in this email thread, I must admit to be<br>
really disappointed.<br>
<br>
<br>
Some of our colleagues in the CCWG seem to have forgotten - perhaps on<br>
purpose - that the topic of jurisdiction was allocated to WS2 as a<br>
result of a postponement, since the majority of this group thought it<br>
was not appropriate to deal with it in the pre-transition period due<br>
to time constraints. My government was not in favor of postponing the<br>
discussion on jurisdiction, as we consider it was – and remains – a<br>
fundamental aspect of a new ICANN truly governed by the<br>
multistakeholder community without any pre-conditions, but in respect<br>
to the viewpoint of the other colleagues, we agreed to move it to WS2.<br>
<br>
Now that time has come to properly deal with this topic, it is quite<br>
frustrating to notice that some participants insist on limiting<br>
and/or procrastinating this debate, including by using the absurd<br>
argument that any discussion around jurisdiction cannot put into<br>
question any aspect already decided in WS1, which is embedded in the<br>
California law. We cannot see good faith in that kind of circular<br>
argument.<br>
<br>
In our view, the discussion around the inclusion or exclusion of Q.4<br>
shows quite clearly that some of those who have fiercely objected to<br>
any jurisdiction debate during WS1 are maintaining their objection in<br>
WS2 as well. On that particular topic (Q.4) we concur with the view<br>
that upon deciding on institutional arrangements we should not only<br>
consider already occurred cases but also take into account logically<br>
strong possibilities. The responses to the questionnaire should thus<br>
help us to deal with all possibilities associate to jurisdiction. In<br>
case any unsubstantiated opinion will be received, it should be<br>
summarily discarded.<br>
<br>
>From the various jurisdiction calls it became quite evident that a<br>
substantial part of the subgroup - mainly non-US - has great interest<br>
in examining and debating ways through which we can make sure that any<br>
issue associated to jurisdiction be addressed in a way compatible<br>
with the company's international remit of coordinating Internet<br>
public identifiers. In that context, I would like to highlight my<br>
government´s understanding that although the proposed questionnaire<br>
under discussion may provide us with some relevant factual<br>
information, it does not in any way cover all aspects of interest. We<br>
would like to refer, for example, to the list of issues compiled by<br>
Kavouss Arasteh as per his 13 December 2016 e-mail. We would also<br>
refer to questions that have continuously been asked by Parminder,<br>
apparently without any satisfactory answer. Those issues and questions<br>
include, for example, dispute settlement related topics, which<br>
demonstrates, in our view, that jurisdiction cannot be seen purely<br>
from businesses´ viewpoint. As someone has stated, we also need to<br>
look at the relationship between ICANN and third parties and<br>
adequately consider non-contracted Parties that might be affected by<br>
ICANN´s acts and/or omissions.<br>
<br>
>From the perspective of the Brazilian government, the topics raised by<br>
Kavouss, Parminder and others are issues of particular interest<br>
which, needless to say, will not be adequately addressed through the<br>
mere analysis of the answers provided to the questionnaire, whether it<br>
includes Q.4 or not.<br>
<br>
My government has expressed its interest in pursuing discussion on<br>
jurisdiction through those angles many times – both during the IANA<br>
transition process and well before that. Other governments have done<br>
the same, as well as a sound number of civil society organizations<br>
around the globe. The "NETmundial Multistakeholder Statement", while<br>
calling for the internationalization of ICANN, clearly expresses this<br>
as well. Let me emphasize, by the way, that the NETmundial Statement<br>
calls for ICANN´s internationalization and not for it to become an<br>
intergovernmental organization. Those are two different notions that<br>
should not be confounded.<br>
<br>
If this subgroup fails to deal with the multidimensional issues<br>
associated to jurisdiction properly , it may be applauded by some<br>
segments , but it will not contribute to putting in place a framework<br>
that will ensure the shared goal of making ICANN a legitimate entity<br>
in the eyes of all stakeholders, including governments. To achieve<br>
that, no issues should be discarded as "non important" or "not yet<br>
verified". While preserving the essence of what was achieved in WS1,<br>
innovative thinking, including on the part of persons with legal<br>
expertise, will be needed. Is it worth to wipe an important debate<br>
under the carpet just to comfort one or a few stakeholder groups while<br>
discontenting others? What kind of legitimacy is such a biased and<br>
limited exercise likely to have within the international community? .<br>
<br>
It is time the subgroup - including the coChairs - make a honest<br>
assessment of the various viewpoints related to ICANN's jurisdiction<br>
and conduct the debate as openly as possible in order to address all<br>
the concerns and interests behind it.<br>
<br>
Kind regards,<br>
<br>
Sec. Pedro Ivo Ferraz da Silva<br>
Division of Information Society<br>
Ministry of Foreign Affairs - Brazil<br>
T: <a href="tel:%2B55%2061%202030-6609" target="_blank" value="+556120306609">+55 61 2030-6609</a><br></div></div>
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