<div dir="ltr"><div>Grec,</div><div>Tks again,</div><div>As I said I believe ,it is counter productive to discuss many alternative, </div><div>I could agree with formulation of Parminder</div><div>Regards</div><div>Kavouss </div></div><div class="gmail_extra"><br><div class="gmail_quote">2016-12-27 12:51 GMT+01:00 parminder <span dir="ltr"><<a href="mailto:parminder@itforchange.net" target="_blank">parminder@itforchange.net</a>></span>:<br><blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex">
<div text="#000000" bgcolor="#FFFFFF">
<p><font face="Verdana">Greg/ All</font></p>
<p><font face="Verdana">I think the Alternative 1, which you take as
likely candidate for broader support, is fine. I list this
formulation below:</font></p>
<p>
</p>
<p><span>
</span><p align="center" class="m_7719754156737093384western" style="line-height:100%;margin-bottom:0cm"><font size="2" style="font-size:10pt">What
are the advantages or disadvantages, if any, relating to
ICANN's
jurisdiction*, particularly with regard to the actual
operation of
ICANN’s policies and accountability mechanisms? Please
support your response with appropriate examples, references to
specific laws, case studies, other studies, and analysis. In
particular, please indicate if there are current or past
instances
that highlight such advantages or problems.</font></p>
<p align="center" class="m_7719754156737093384western" style="line-height:100%;margin-bottom:0cm">(<font size="2" style="font-size:10pt">* For
these questions, “ICANN’s jurisdiction” refers to (a)
ICANN being subject to U.S. and California law as a result of
its
incorporation and location in California, (b) ICANN being
subject to
the laws of any other country as a result of its location
within or
contacts with that country, or (c) any “choice of law” or
venue
provisions in agreements with ICANN.)</font>
</p>
<p></p>
<p class="m_7719754156737093384western" style="line-height:100%;margin-bottom:0cm">
</p>
<font size="2">ENDS<br>
<br>
</font>
<div class="m_7719754156737093384moz-cite-prefix">Lets move on with it. We are spending
too much time on framing a question.<span class="HOEnZb"><font color="#888888"><br>
<br>
parminder</font></span><div><div class="h5"><br>
<br>
<br>
On Tuesday 27 December 2016 01:26 PM, Greg Shatan wrote:<br>
</div></div></div><div><div class="h5">
<blockquote type="cite">
<div dir="ltr">
<div class="gmail_default" style="font-family:verdana,sans-serif">All:</div>
<div class="gmail_default" style="font-family:verdana,sans-serif"><br>
</div>
<div class="gmail_default" style="font-family:verdana,sans-serif">Two quick but important
points:</div>
<div class="gmail_default" style="font-family:verdana,sans-serif"><br>
</div>
<div class="gmail_default" style="font-family:verdana,sans-serif">1. We have strayed
from the basic topic in front of us, which is to decide on the
formulation of the questions to be sent out. I have gone
through the emails and meeting notes and pulled the
alternative formulations and revisions in to a single
document, attached to this email. </div>
<div class="gmail_default" style="font-family:verdana,sans-serif"><br>
</div>
<div class="gmail_default" style="font-family:verdana,sans-serif">With regard to question
4, I believe that the best way to move forward is to see if
one of the alternatives gets stronger support within the
CCWG. If we can get to a point where there is broad support
for the question without significant opposition that may
resolve issues relating to whether and when this question will
be sent out.</div>
<div class="gmail_default" style="font-family:verdana,sans-serif"><br>
</div>
<div class="gmail_default" style="font-family:verdana,sans-serif">2. Our overall
agreed-upon working method is to first identify, discuss and
arrive at a list of issues that raise concerns, and then move
on to identifying, discussing and arriving at a list of
potential remedies for each issue on our list. We are still
working on issues. For a remedy to be up for discussion when
we move to discussing remedies, that remedy needs to provide a
solution to an issue. We can't discuss a potential remedy
without having an issue it is intended to solve. If there is
a potential "remedy" but it does not solve any of our issues,
we won't discuss it. </div>
<div class="gmail_default" style="font-family:verdana,sans-serif"><br>
</div>
<div class="gmail_default" style="font-family:verdana,sans-serif">We've already put aside
one potential "remedy" until we see whether we identify any
issues it would solve -- the "remedy" of changing ICANN's
jurisdiction of incorporation or headquarters location.
"Immunity" is another potential remedy that we need to deal
with the same way. Skipping forward to discussions of
remedies is only slowing down our discussion of issues. I
strongly suggest we refocus on issues, so that we can get to
the discussion of remedies. Once we've agreed on a list of
issues, a discussion of remedies will be more productive.</div>
<div class="gmail_default" style="font-family:verdana,sans-serif"><br>
</div>
<div class="gmail_default" style="font-family:verdana,sans-serif">Our working method of
dealing with issues first and then remedies may also help us
find agreement on a way to deal with question 4. Questions
1-3 clearly deal with issues. Perhaps a version of question 4
that is limited to asking for issues will get broader support
("Alternative 1" on the attachment may fit this description.)</div>
<div class="gmail_default" style="font-family:verdana,sans-serif"><br>
</div>
<div class="gmail_default" style="font-family:verdana,sans-serif">Greg</div>
</div>
<div class="gmail_extra"><br>
<div class="gmail_quote">On Mon, Dec 26, 2016 at 1:41 PM, Seun
Ojedeji <span dir="ltr"><<a href="mailto:seun.ojedeji@gmail.com" target="_blank">seun.ojedeji@gmail.com</a>></span>
wrote:<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">
<div dir="auto">Hello,
<div dir="auto"><br>
</div>
<div dir="auto">I also don't see the logic in sending two
questionnaires. There may be some logic in treating the
responses to questions 1 to 3 separate from question 4,
but we are not yet at that stage. It will be better the
question is not added at all than to send it as a
separate questionnaire.</div>
<div dir="auto"><br>
Overall I am indifferent about adding or not adding but
since there is seemingly a lot of support to add, I
don't see the significant harm it will cause by doing
that[1]. Based on the response of the Co-Chairs to my
question, I would suggest that it's better to let all
the 4 questions be presented and let's see what issues
emerge from their responses. Then we can start to do a
few round trips to legal and hopefully remind ourselves
the possible consequences of addressing certain issues
in a particular way. Some of which has already been
echoed during WS1. </div>
<div dir="auto"><br>
</div>
<div dir="auto">Regards</div>
<div dir="auto">1. Nevermind that it could generate some
political news/headlines but am sure this group is
already used to that by now ;-)<span><br>
<div dir="auto" data-smartmail="gmail_signature">Sent
from my LG G4<br>
Kindly excuse brevity and typos</div>
</span></div>
</div>
<div class="m_7719754156737093384HOEnZb">
<div class="m_7719754156737093384h5">
<div class="gmail_extra"><br>
<div class="gmail_quote">On 26 Dec 2016 19:19, "avri
doria" <<a href="mailto:avri@acm.org" target="_blank">avri@acm.org</a>>
wrote:<br type="attribution">
<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">Hi,<br>
<br>
Where we differ is on the idea of separating the
questions into 2<br>
questionnaires.<br>
<br>
I think it is going to be hard enough to get
people to pay attention to<br>
one questionnaire, asking them to do two is
daunting. A fourth question<br>
will not test their patience in the same way
another questionnaire would.<br>
<br>
So with Kavouss I say:<br>
<br>
> Allow all 4 questions go out and then wait
what will happens .<br>
<br>
avri<br>
<br>
<br>
On 26-Dec-16 11:42, Mueller, Milton L wrote:<br>
>> -----Original Message-----<br>
>> At the same time, let us all try to
return to a constructive and step-by-step<br>
>> approach, building on the progress made
so far, in order to make progress on<br>
>> our mandate, established by the whole
multistakeholder community back in<br>
>> Marrakech.<br>
> I agree, and I think both Pedro's and Phil's
position are based on some confusion of issues. It
we calm down a bit and look at this more carefully
we can make progress.<br>
><br>
> Pedro may be confusing the inclusion or
exclusion of Question 4 in our initial request
with the question of whether we explore issues in
US jurisdiction at all. But excluding Question 4
from our initial request for information is not
the same as a refusal to explore the questions it
raises. I have proposed _separating_ Q4 from the
other 3 questions, not eliminating it entirely. I
proposed this not because I want to avoid the
questions Q4 poses, but because I want those
questions to be developed better and I want to
avoid conflating it with the narrower questions
about dispute resolution that Q's 1-3 were
designed to address. It is a mistake to put those
two things together. The information we gather
from Q's 1-3 will suffer from their attachment to
the potentially more controversial issues raised
by Q4. Let me also add that the divisive
insistence that this is a matter of US citizens vs
non-US citizens needs to be dropped. Avri and
myself, e.g., are both US citizens/residents and
have serious concerns about possible intrusions of
US foreign policy and other nationalistic and
governmental concerns into ICANN matters. At the
same time we are both staunch supporters of a
nongovernmental model in this space and have no
inherent objection to California law as ICANN's
basis.<br>
><br>
> Phil Corwin on the other hand is confusing
the issue of whether ICANN's corporate HQ is in
California with the question of whether ICANN will
be an intergovernmental entity. These questions
have very little to do with each other. It is of
course true that there are still a few people out
there who would like for ICANN to become
intergovernmental, but they are a tiny minority
and the weight of history is totally against them.
Put more bluntly, it ain't gonna happen.
Supporters of the MS model and opponents of
intergovernmentalism have legitimate reasons to
investigate the impact of US jurisdiction, because
the US is a global power with very specific
foreign policy and military interests. US
jurisdiction thus may have the potential to create
opportunities for one government - the US - to
have an inappropriate level of influence over
ICANN's transnational, nonstate actor based
governance processes. One can consider those
issues without implying that ICANN's corporate HQ
needs to move.<br>
><br>
> So let's stop making the status of Q4 a proxy
for a long-settled war over whether ICANN is
private or governmental, and let's stop pretending
that those who want to separate the issues raised
by Q4 from the narrower more focused issues in
Q1-3 are trying to avoid legitimate issues.<br>
><br>
> As for creating a separate CCWG, are you
kidding? This is the CCWG subgroup created
specifically for jurisdictional issues and we
don't make difficult issues easier to resolve by
creating additional structures.<br>
><br>
> Dr. Milton L. Mueller<br>
> Professor, School of Public Policy<br>
> Georgia Institute of Technology<br>
><br>
><br>
><br>
>> In this vein, and consistent with our
conversation in Hyderabad, let us<br>
>> continue with the line directed to
requesting input from the wider community.<br>
>><br>
>> The four questions developed so far will
allow us to gather much needed input<br>
>> on facts, examples and well-founded
opinions on the influence of ICANNs<br>
>> jurisdiction, taking into account its
multiple layers, on its operations and<br>
>> accountability.<br>
>><br>
>> If we all are constructive and accept
esch others' views as worthy of further<br>
>> discussion and study, we will be able to
get this important step further.<br>
>><br>
>> Hence, let us please stay on the right
track and finalize formulations of all four<br>
>> questions, and keep up the good spirit of
cooperation.<br>
>><br>
>> with my best wishes for you all during
the festivities<br>
>><br>
>> kind regards<br>
>><br>
>> Jorge<br>
>><br>
>><br>
>> ______________________________<wbr>__<br>
>><br>
>> Von: Pedro Ivo Ferraz da Silva <<a href="mailto:pedro.ivo@itamaraty.gov.br" target="_blank"><a class="m_7719754156737093384moz-txt-link-abbreviated" href="mailto:pedro.ivo@itamaraty.gov.br" target="_blank">pedro.ivo@itamaraty.gov.br</a>><br>
>> Datum: 24. Dezember 2016 um 15:53:55 MEZ<br>
>> An: Greg Shatan <<a href="mailto:gregshatanipc@gmail.com" target="_blank"><a class="m_7719754156737093384moz-txt-link-abbreviated" href="mailto:gregshatanipc@gmail.com" target="_blank">gregshatanipc@gmail.com</a>>,
parminder<br>
>> <<a href="mailto:parminder@itforchange.net" target="_blank">parminder@itforchange.net</a>>,
Kavouss Arasteh<br>
>> <<a href="mailto:kavouss.arasteh@gmail.com" target="_blank">kavouss.arasteh@gmail.com</a>><br>
>> Cc: <a href="mailto:accountability-cross-community@icann.org" target="_blank">accountability-cross-community<wbr>@icann.org</a>
<accountability-cross-<br>
>> <a href="mailto:community@icann.org" target="_blank">community@icann.org</a>><br>
>> Betreff: [CCWG-ACCT] RES: Jurisdiction
Proposed Questions and Poll Results<br>
>><br>
>> Dear CCWG-colleagues,<br>
>><br>
>> After reading some comments in this email
thread, I must admit to be really<br>
>> disappointed.<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 result of a<br>
>> postponement, since the majority of this
group thought it was not appropriate<br>
>> to deal with it in the pre-transition
period due to time constraints. My<br>
>> government was not in favor of
postponing the discussion on jurisdiction, as<br>
>> we consider it was - and remains - a
fundamental aspect of a new ICANN truly<br>
>> governed by the multistakeholder
community without any pre-conditions,<br>
>> but in respect to the viewpoint of the
other colleagues, we agreed to move it<br>
>> to WS2.<br>
>><br>
>> Now that time has come to properly deal
with this topic, it is quite frustrating<br>
>> to notice that some participants insist
on limiting and/or procrastinating this<br>
>> debate, including by using the absurd
argument that any discussion around<br>
>> jurisdiction cannot put into question any
aspect already decided in WS1,<br>
>> which is embedded in the California law.
We cannot see good faith in that kind<br>
>> of circular argument.<br>
>> In our view, the discussion around the
inclusion or exclusion of Q.4 shows<br>
>> quite clearly that some of those who have
fiercely objected to any jurisdiction<br>
>> debate during WS1 are maintaining their
objection in WS2 as well. On that<br>
>> particular topic (Q.4) we concur with the
view that upon deciding on<br>
>> institutional arrangements we should not
only consider already occurred<br>
>> cases but also take into account
logically strong possibilities. The responses to<br>
>> the questionnaire should thus help us to
deal with all possibilities associate to<br>
>> jurisdiction. In case any unsubstantiated
opinion will be received, it should be<br>
>> summarily discarded.<br>
>> From the various jurisdiction calls it
became quite evident that a substantial<br>
>> part of the subgroup - mainly non-US -
has great interest in examining and<br>
>> debating ways through which we can make
sure that any issue associated to<br>
>> jurisdiction be addressed in a way
compatible with the company's<br>
>> international remit of coordinating
Internet public identifiers. In that context, I<br>
>> would like to highlight my government´s
understanding that although the<br>
>> proposed questionnaire under discussion
may provide us with some relevant<br>
>> factual 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 Kavouss<br>
>> Arasteh as per his 13 December 2016
e-mail. We would also refer to<br>
>> questions that have continuously been
asked by Parminder, apparently<br>
>> without any satisfactory answer. Those
issues and questions include, for<br>
>> example, dispute settlement related
topics, which demonstrates, in our view,<br>
>> that jurisdiction cannot be seen purely
from businesses´ viewpoint. As<br>
>> someone has stated, we also need to look
at the relationship between ICANN<br>
>> and third parties and adequately consider
non-contracted Parties that might<br>
>> be affected by ICANN´s acts and/or
omissions.<br>
>> From the perspective of the Brazilian
government, the topics raised by<br>
>> Kavouss, Parminder and others are issues
of particular interest which,<br>
>> needless to say, will not be adequately
addressed through the mere analysis<br>
>> of the answers provided to the
questionnaire, whether it includes Q.4 or not.<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 the<br>
>> same, as well as a sound number of civil
society organizations around the<br>
>> globe. The "NETmundial Multistakeholder
Statement", while calling for the<br>
>> internationalization of ICANN, clearly
expresses this as well. Let me<br>
>> emphasize, by the way, that the
NETmundial Statement calls for ICANN´s<br>
>> internationalization and not for it to
become an intergovernmental<br>
>> organization. Those are two different
notions that should not be confounded.<br>
>><br>
>> If this subgroup fails to deal with the
multidimensional issues associated to<br>
>> jurisdiction properly , it may be
applauded by some segments , but it will not<br>
>> contribute to putting in place a
framework that will ensure the shared goal of<br>
>> making ICANN a legitimate entity in the
eyes of all stakeholders, including<br>
>> governments. To achieve that, no issues
should be discarded as "non<br>
>> important" or "not yet verified". While
preserving the essence of what was<br>
>> achieved in WS1, innovative thinking,
including on the part of persons with<br>
>> legal expertise, will be needed. Is it
worth to wipe an important debate under<br>
>> the carpet just to comfort one or a few
stakeholder groups while<br>
>> discontenting others? What kind of
legitimacy is such a biased and limited<br>
>> exercise likely to have within the
international community? .<br>
>><br>
>> It is time the subgroup - including the
coChairs - make a honest assessment of<br>
>> the various viewpoints related to
ICANN's jurisdiction and conduct the debate<br>
>> as openly as possible in order to address
all the concerns and interests behind<br>
>> 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:+55%2061%202030-6609" target="_blank" value="+556120306609">+55 61
2030-6609</a><br>
>><br>
>> ______________________________<wbr>__<br>
>> De: <a href="mailto:accountability-cross-community-bounces@icann.org" target="_blank">accountability-cross-community<wbr>-bounces@icann.org</a>
[accountability-<br>
>> <a href="mailto:cross-community-bounces@icann.org" target="_blank">cross-community-bounces@icann.<wbr>org</a>]
em nome de parminder<br>
>> [<a href="mailto:parminder@itforchange.net" target="_blank">parminder@itforchange.net</a>]<br>
>> Enviado: quinta-feira, 22 de dezembro de
2016 14:01<br>
>> Para: Kavouss Arasteh; Greg Shatan<br>
>> Cc: <a href="mailto:accountability-cross-community@icann.org" target="_blank">accountability-cross-community<wbr>@icann.org</a><br>
>> Assunto: Re: [CCWG-ACCT] Jurisdiction
Proposed Questions and Poll Results<br>
>><br>
>><br>
>> Dear Kavouss<br>
>><br>
>> You are right, we should first deal with
the issue of the questionnaire.<br>
>><br>
>> I agree, as do many others, that there is
no justification to remove the<br>
>> proposed Q 4 from the questionnaire. The
question must go out along with<br>
>> others.<br>
>><br>
>> A question seeking information is only a
question seeking information. People<br>
>> may chose to not respond to it, or give
different responses, likely in<br>
>> opposition to one another. That is all
very fine, and quite expected. But such<br>
>> forceful arguments to not ask for certain
kinds of information is very<br>
>> disturbing, even alarming. (I have issues
with how the other questions are<br>
>> framed, but I am fine to let them go out
because some people want them to<br>
>> be posed.)<br>
>><br>
>> Ordinarily, if a good number of
participants here wanted a question, that<br>
>> should be enough to include it. Here, a
majority of those who voted on the<br>
>> issue of this particular question wanted
the question included. That should<br>
>> have conclusively stopped the debate. But
no, not so. There is persistent effort<br>
>> to censor this question. And this in a
process that is advertised as open,<br>
>> transparent, collaborative, and what not.
There is something very basically<br>
>> wrong here.<br>
>><br>
>> parminder<br>
>><br>
>> On Thursday 22 December 2016 07:20 PM,
Kavouss Arasteh wrote:<br>
>> Dear John.<br>
>> Dear Parminder,<br>
>> It is difficult for me to conclude on any
solution between the lines of your<br>
>> discussion.<br>
>> Could any of you kindly give a resume of
the exchanged views.<br>
>> We need to look for some compromise
solution knowing that some hard<br>
>> liners like x and y insist to impose
their objections to send Q4.I continue to<br>
>> object to all questions until all 4 are
agreed Nothing is agreed untill everything<br>
>> is agreed this is a Global
multistakholder Group discussion and NOT North<br>
>> American Sub-Region multistakholder Group
dominated by certain individuals<br>
>> Regards Kavouss<br>
>><br>
>> 2016-12-22 13:06 GMT+01:00 parminder<br>
>> <<a href="mailto:parminder@itforchange.net" target="_blank">parminder@itforchange.net</a><mai<wbr>lto:<a href="mailto:parminder@itforchange.net" target="_blank"><a class="m_7719754156737093384moz-txt-link-abbreviated" href="mailto:parminder@itforchange.net" target="_blank">parminder@itforchange.net</a>><wbr>>:<br>
>><br>
>><br>
>> On Tuesday 20 December 2016 08:37 PM,
John Laprise wrote:<br>
>> "To turn ones face away and say, nothing
can be done here, to evolve our<br>
>> democratic international systems, is to
vote for a status quo which serves<br>
>> some, but not others."<br>
>><br>
>> Rather, it is an acknowledgement of
reality.<br>
>><br>
>> Apologies for appearing to be flippant,
but isnt that what every status quo-ist<br>
>> says.<br>
>> Rule of law is neither globally strong
nor evenly distributed. I can imagine a<br>
>> world in which the way forward you
describe is plausible but, regrettably, it is<br>
>> not the one we live in. Other systems
need strengthening and in some cases<br>
>> even existence before the way forward is
open. It's not a vote for the status<br>
>> quo but a recognition of path dependency.<br>
>><br>
>> I am not asking for a violent deviation
from the path - both options that I<br>
>> propose, a new international law and
immunity under existing US Act carries<br>
>> forward the path-dependency, and
completely safeguard the existing<br>
>> structures and processes of ICANN, the
system I think you allude to as<br>
>> requiring strengthening. What I propose
in fact further strengthens it, to a<br>
>> considerable extent. The ICANN system's
current jurisdictional oversight by a<br>
>> single country is its biggest weak point
in terms of international legitimacy. ( A<br>
>> point, unfortunately USians here seem not
able to see and sympathise with.)<br>
>> Imagine an ICANN with immunity from US
jurisdiction; how much legitimacy,<br>
>> and thus strength, it adds to the system.<br>
>><br>
>><br>
>> Thanks for the back rounder Parminder. It
was, along with some parallel<br>
>> research, quite helpful.<br>
>><br>
>> Thanks John, you are welcome.<br>
>><br>
>> The problem remains however that there is
no analogous organization to<br>
>> ICANN merely in terms of its contractual
authority.<br>
>><br>
>> Firstly, if we are hoping that a
fully-developed, well-rounded solution, with<br>
>> everything fully covered by enough exact
precedents, to this complex but very<br>
>> genuine problem, will simply one day drop
in our laps, I assure you that this is<br>
>> not going to happen. We have to work for
it, join the dots, take risks, make<br>
>> innovations, and so on. The point is, who
is losing and gaining what from the<br>
>> present dispensation, and who is willing
to do what is required to do.<br>
>><br>
>> Next, I see that organisations like
International Fertilizer and Development<br>
>> Centre, which we cited as an example of
an NPO given jurisdictional<br>
>> immunity, also does run many projects
worldwide. Any such project would<br>
>> require use of a legal status, entering
contracts, and so on.... We just need to<br>
>> look into it. But if we close our eyes,
and simply refuse to explore options, we<br>
>> are not going to get anywhere. I am not
saying this example will be an exact fit<br>
>> for our requirement, but we need to see
what is possible, and innovate and<br>
>> evolve over it.<br>
>><br>
>> I'd also add that many of the benefits of
the act are at the discretion of the US<br>
>> Secretary of State and can be revoked.<br>
>><br>
>> Yes, which is why immunity under US Act
is less sustainable option than<br>
>> international law based immunity. But
still better than the present condition.<br>
>> In the recent civil society statement on<br>
>> jurisdiction<<a href="http://www.itforchange.net/sites/default/files/Jurisdiction%20of" target="_blank" rel="noreferrer">http://www.itforc<wbr>hange.net/sites/default/files/<wbr>Jurisdiction%20of</a><br>
>> %20ICANN.pdf>, we also suggested a
method whereby any such withdrawal of<br>
>> immunity can be made difficult/
ineffectual (see option 3 in the end).<br>
>><br>
>> The proposed jurisdictional immunity
would also require all governments to<br>
>> sign off on such status, given ICANN's
reach.<br>
>><br>
>> I dont see why so. Only US gov needs to
agree.<br>
>><br>
>> I know that there is a significant
literature on international compacts and law.<br>
>> Given the often decades long time frames
for the passage and acceptance of<br>
>> such law, the Internet as we know it is
unlikely to exist by the time it comes<br>
>> into force.<br>
>><br>
>> These are weak excuses. It can be done in
6 months. But in any case, if it<br>
>> satisfies those who want to move towards
international jurisdiction, what do<br>
>> you lose in allowing to set in motion the
process, esp if you think it would take<br>
>> forever to do anything. Let those who
want have it. In the interim, status quo<br>
>> would stay.<br>
>><br>
>><br>
>> To your question about why we do not
discuss jurisdictional immunity under<br>
>> US law: it is because the domestic
political reality of the situation makes such<br>
>> an eventuality so remote as to be
hypothetical.<br>
>><br>
>> The same domestic situation makes the
continuation of ICANN under US<br>
>> jurisdiction even less tenable.<br>
>><br>
>> This brings me to a very important point:
the job of CCWG, working on behalf<br>
>> of the global community, is not to second
guess what US gov will accept or<br>
>> not (unfortunately, that is what it has
mostly done). If this was its real task, we<br>
>> as well may let US gov do what it may,
instead of providing them the cover of<br>
>> legitimacy of the supposed will of the so
called 'global community' which is<br>
>> what this process does. Our job is to
recommend what we think in is best<br>
>> global interest, and is ordinarily
plausible to do. This is what our job is, and we<br>
>> must just do that. Let US gov do its job
- accept our recs or not. That burden is<br>
>> upon them - let s not take up their
burden. This aspect of the work of the<br>
>> "community" groups involved in the
transition process has always greatly<br>
>> bothered me. We must have clarity about -
on whose behalf are we working (i<br>
>> think, for the global community, but you
can clarify) and what our recs must<br>
>> be based on (I think, on our
understanding of what is best for the global<br>
>> community, and not what we think US gov
likes and would agree to, and what<br>
>> not, but again you can clarify)<br>
>><br>
>><br>
>> The described quest is admirable but IMO
is a non-starter. Conditions do not<br>
>> exist presently to make it a possible.<br>
>><br>
>> We are part of once in decades
constitutional process about ICANN's<br>
>> structures. If it is not now, it is
never.<br>
>><br>
>> parminder<br>
>><br>
>> Best regards,<br>
>><br>
>> John Laprise, Ph.D.<br>
>> Consulting Scholar<br>
>><br>
>> <<a href="http://www.linkedin.com/in/jplaprise/" target="_blank" rel="noreferrer">http://www.linkedin.com/in/jp<wbr>laprise/</a>><<a href="http://www.linkedin.com/in/jplapri" target="_blank" rel="noreferrer"><a class="m_7719754156737093384moz-txt-link-freetext" href="http://www.linkedin" target="_blank">http://www.linkedin</a>.<wbr>com/in/jplapri<br>
>> se/><a href="http://www.linkedin.com/in/jplaprise/" target="_blank" rel="noreferrer">http://www.linkedin.com/in<wbr>/jplaprise/</a><br>
>><br>
>><br>
>><br>
>> From: parminder<br>
>> [<mailto:<a href="mailto:parminder@itforchange.net" target="_blank">parminder@itforchange<wbr>.net</a>>mailto:<a href="mailto:parminder@itforchange.net" target="_blank">parminder@itforcha<wbr>nge.net</a>]<br>
>> Sent: Tuesday, December 20, 2016 2:57 AM<br>
>> To: John Laprise <mailto:<a href="mailto:jlaprise@gmail.com" target="_blank"><a class="m_7719754156737093384moz-txt-link-abbreviated" href="mailto:jlaprise@gmail.com" target="_blank">jlaprise@gmail.com</a>><br>
>> <<a href="mailto:jlaprise@gmail.com" target="_blank">jlaprise@gmail.com</a>><mailto:<a href="mailto:jlaprise@gmail.com" target="_blank">jl<a class="m_7719754156737093384moz-txt-link-abbreviated" href="mailto:aprise@gmail.com" target="_blank"><wbr>aprise@gmail.com</a>>;
accountability-cross-<br>
>> <a href="mailto:community@icann.org" target="_blank">community@icann.org</a><mailto:<a href="mailto:accountability-cross-community@icann.org" target="_blank">acc<wbr>ountability-cross-community@ic<wbr>ann.org</a>><br>
>> Subject: Re: [CCWG-ACCT] Jurisdiction
Proposed Questions and Poll Results<br>
>><br>
>> On Monday 19 December 2016 08:14 PM, John
Laprise wrote:<br>
>><br>
>> Possibilities of jurisdictional immunity?
Could you please provide examples of<br>
>> organizations that enjoy such.<br>
>><br>
>> John<br>
>> The most well known case of
jurisdictional immunity is of course for<br>
>> organisations incorporated under
international law. Unlike what has been<br>
>> argued here variously, although
international law has to be made by<br>
>> governments through treaties etc that
says nothing about the actual<br>
>> governance structure of the concerned
organisation, ICANN in this case.<br>
>> International law can, to take an extreme
case, hand over complete<br>
>> governance of a body created/
incorporated under international law to you<br>
>> and me... Nothing circumscribes how
international law is written as long as all<br>
>> countries agree to it. It is entirely
possible, and I think extremely plausible,<br>
>> that they would agree to write in such
law the exact governance structure of<br>
>> ICANN as it is at present. Right now too,
ICANN exists by and under the<br>
>> strength of its law of incorporation
which is US law. In the scenario I present,<br>
>> it would just be international law
instead of US law. Yes, there are matters to<br>
>> worked out in this regard, but if
democracy and self-determination of all<br>
>> people, equally, is of any importance at
all, we can go through the process,<br>
>> including doing the needed innovations as
needed. The current international<br>
>> system was not handed over to us by God,
it was evolved by people like us,<br>
>> who responded appropriately to newer and
newer global challenges, as the<br>
>> one that faces us now. To turn ones face
away and say, nothing can be done<br>
>> here, to evolve our democratic
international systems, is to vote for a status<br>
>> quo which serves some, but not others.
And these are the others that are<br>
>> protesting here, and seeking appropriate
change. It is a political issue, lets not<br>
>> treat it as a technical issue, of what is
argued to be difficult or too<br>
>> "troublesome" to pursue.<br>
>><br>
>> Next, even without going the
international law route, as has been said many<br>
>> times earlier here, US law allows even
non profits to be given jurisdictional<br>
>> immunity. The concerned law is the United
States International Organisations<br>
>> Immunities Act<<a href="https://archive.icann.org/en/psc/annex9.pdf" target="_blank" rel="noreferrer"><a class="m_7719754156737093384moz-txt-link-freetext" href="https://archive.icann.org/" target="_blank">https://archive.icann.org/</a><wbr>en/psc/annex9.pdf>
. And an<br>
>> example of a US non-profit being given
jurisdiction immunity under it is<br>
>> International Fertilizer and Development
Center. This has been discussed in a<br>
>> report commissioned by ICANN itself which
can be found at<br>
>> <a href="https://archive.icann.org/en/psc/corell-24aug06.html" target="_blank" rel="noreferrer">https://archive.icann.org/en/p<wbr>sc/corell-24aug06.html</a>
.<br>
>><br>
>> I have been unable to understand why can
we not agree to even jurisdictional<br>
>> immunity under existing US law, which
keeps ICANN in the US, preserves its<br>
>> existing structures, and does go
considerable way to address the concerns<br>
>> about those who are concerned about
application of US public law on ICANN,<br>
>> and what it may mean for its global
governance work.<br>
>><br>
>> The argument is advanced that this may
affect the operation of the newly<br>
>> instituted community accountability
mechanism. I dont think this is not true.<br>
>> This mechanism is a matter of internal
ICANN governance system, which is a<br>
>> 'private' arrangement with choice of law
available to it. It simply has to be put<br>
>> in ICANN bylaws that ICANN governance
processes will be subject to<br>
>> adjudication by Californian courts as
present. That should do. Of course the<br>
>> mentioned International Fertilizer and
Development Centre also must be<br>
>> existing with some governance systems,
that admit of external adjudication,<br>
>> even as it enjoys the benefit of
jurisdictional immunity from US public laws.<br>
>> Such immunity always only pertains to the
policy and such international core<br>
>> activities of the concerned organisation,
and associated matters. It would not,<br>
>> for instance, extend to actual crime
being committed by its personnel on its<br>
>> premises. All such matters of various
distinctions get taken care of when we<br>
>> enter the actual processes of such
immunities etc. Right now, the issue is only<br>
>> to decide to go down the route, or not.<br>
>><br>
>> parminder<br>
>><br>
>><br>
>><br>
>> Best regards,<br>
>><br>
>> John Laprise, Ph.D.<br>
>> Consulting Scholar<br>
>><br>
>> <a href="http://www.linkedin.com/in/jplaprise/" target="_blank" rel="noreferrer">http://www.linkedin.com/in/jpl<wbr>aprise/</a><br>
>><br>
>><br>
>><br>
>> From: accountability-cross-community<wbr>-<br>
>> <a href="mailto:bounces@icann.org" target="_blank">bounces@icann.org</a><mailto:<a href="mailto:accountability-cross-community-" target="_blank">accou<wbr>ntability-cross-community-</a><br>
>> <a href="mailto:bounces@icann.org" target="_blank">bounces@icann.org</a>>
[mailto:<a href="mailto:accountability-cross-community-" target="_blank">accountability-cross-c<wbr>ommunity-</a><br>
>> <a href="mailto:bounces@icann.org" target="_blank">bounces@icann.org</a>]
On Behalf Of parminder<br>
>> Sent: Monday, December 19, 2016 7:10 AM<br>
>> To: <a href="mailto:accountability-cross-community@icann.org" target="_blank">accountability-cross-community<wbr>@icann.org</a><mailto:<a href="mailto:accountability-cross-" target="_blank">accountabili<wbr>ty-cross-</a><br>
>> <a href="mailto:community@icann.org" target="_blank">community@icann.org</a>><br>
>> Subject: Re: [CCWG-ACCT] Jurisdiction
Proposed Questions and Poll Results<br>
>><br>
>><br>
>><br>
>><br>
>> On Saturday 17 December 2016 12:40 AM,
Mueller, Milton L wrote:<br>
>><br>
>> SNIP<br>
>><br>
>> John Laprise's wording was much, much
better:<br>
>><br>
>> "What are the advantages or
disadvantages, if any, relating to changing<br>
>> ICANN's jurisdiction*, particularly with
regard to the actual operation of<br>
>> ICANN's policies and accountability
mechanisms?"<br>
>><br>
>> This formulation does not include
possibilities of jurisdictional immunity.<br>
>><br>
>> Something like<br>
>><br>
>><br>
>><br>
>><br>
>> "What are the advantages or
disadvantages, if any, relating to changing<br>
>> ICANN's jurisdiction*, or providing
possible jurisdictional immunity,<br>
>> particularly with regard to the actual
operation of ICANN's policies and<br>
>> accountability mechanisms?"<br>
>><br>
>> would be better.<br>
>><br>
>> parminder<br>
>><br>
>><br>
>><br>
>><br>
>><br>
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