[CWG-RFP3] Is there is a more suitable legal jurisdiction for anIANA subsidiary?

Fri Nov 7 18:52:56 UTC 2014

All

One question that strikes me as relevant to this conversation is, in the absence of a contract between the NTIA and ICANN for the IANA functions, who can determine the where the IANA function should be based?

As we know, ICANN is actively pursuing the goal of becoming a more global organisation and in this vein they may be considering a relocation of IANA staff/operations.

I think this is certainly an issue that we should have on our radar and discuss.

Thanks,

Donna

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From: cwg-rfp3-bounces at icann.org [mailto:cwg-rfp3-bounces at icann.org] On Behalf Of Stephanie Perrin
Sent: Thursday, 6 November 2014 7:40 PM
To: cwg-rfp3 at icann.org
Subject: Re: [CWG-RFP3] Is there is a more suitable legal jurisdiction for anIANA subsidiary?

INdeed, I think this is a pretty important caveat.  But it seems to me, without wishing to drag the argument around in circles, it is important when designing a legal entity, to understand the legal requirements that apply....and how do you do that if you don't decide on a jurisdiction?  There is certainly a wide choice of jurisdictions with different norms....and how do we know California is the best?  Would it not be helpful to have a look at some of the jurisdictional variations rather than just assume all is ok?  Without understand the variations, we can hardly establish the business requirements.
Stephanie Perrin
On 2014-11-06, 12:12, Burr, Becky wrote:
I agree with one caveat - to the extent people think that creating a separate legal entity actually fixes jurisdictional concerns, understanding whether or not that is true is directly relevant to our ultimate recommendation, no?
J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932  Mobile:  +1.202.352.6367  / becky.burr at neustar.biz<mailto:becky.burr at neustar.biz> / www.neustar.biz<http://www.neustar.biz>

From: <Lindeberg>, Elise <elise.lindeberg at npt.no<mailto:elise.lindeberg at npt.no>>
Date: Wednesday, November 5, 2014 at 11:18 PM
To: Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>>, Becky Burr <becky.burr at neustar.biz<mailto:becky.burr at neustar.biz>>
Cc: "cwg-rfp3 at icann.org<mailto:cwg-rfp3 at icann.org>" <cwg-rfp3 at icann.org<mailto:cwg-rfp3 at icann.org>>
Subject: SV: [CWG-RFP3] Is there is a more suitable legal jurisdiction for anIANA subsidiary?

All,

Greg - following this discussion on jurisdiction is really intense. As it stands now I agree with most of your perspective, and your conclusion

9.  I started with scope, and I'll end with it.  If we recommend a corporate IANA, Inc., it would be helpful but not entirely necessary to recommend a jurisdiction.  We could be silent on it.  If (from the point of view of stewardship/accountability) California is a bad choice, it would be helpful to know it.  But this is only one facet (or "variable") of our work (and a sub-variable at that).  We should manage our time accordingly.

If I understand you correctly -  I  agree that CWG can have discussions and recommendations in regards of IANA as a separate legal entity and establishment of an Oversight Body/Mechanism as a separate legal entity  - WITHOUT going into details on the complicated issue of jurisdiction of ICANN/IANA

Kind regards

Elise

Fra: cwg-rfp3-bounces at icann.org<mailto:cwg-rfp3-bounces at icann.org> [mailto:cwg-rfp3-bounces at icann.org] På vegne av Greg Shatan
Sendt: 5. november 2014 22:00
Til: Burr, Becky
Kopi: cwg-rfp3 at icann.org<mailto:cwg-rfp3 at icann.org>
Emne: Re: [CWG-RFP3] Is there is a more suitable legal jurisdiction for anIANA subsidiary?

A few comments on this very active thread:

1.  We have to be careful about scope.  I would like to be liberal in what we discuss, but balance that against getting bogged down in tangential discussions.  I don't think that changing the jurisdiction of ICANN is within the scope of our work.  (Though it is an endlessly fascinating topic.)

2.  On the other hand, it is possible that we could recommend the establishment of IANA as a separate legal entity.  I say that without judgment on the likelihood or advisability of that move, but it is clearly "on the table" for discussion.  If IANA is a separate legal entity it may be created as a wholly-owned subsidiary of ICANN (at least until some triggering accountability event causes that to change).  It is also possible that IANA could be a wholly independent entity and not a subsidiary of ICANN (FYI, it is my understanding that California non-profits can have subsidiaries.  By contrast, New York non-profits apparently cannot.)

3.  It is also possible that we could recommend the establishment of an Oversight Body as a separate legal entity.

4.  Given the above, I would support some exploration of the pro's and con's of using a California non-profit as an entity, in contrast to a US non-profit corporation formed in another U.S. state, an entity formed in another country, or an unincorporated association.  I agree with Becky and others that getting information from an independent, neutral and knowledgeable source would be extremely helpful.  (I am a practicing lawyer, but I am not licensed to practice in California.  I sometimes work with non-profits, but I am by no means a non-profit law specialist.)

5.  As Becky said, issues of jurisdiction are complex.  They are also multi-faceted.  There are issues of domicile (physical location), state of incorporation (legal location), choice of law (what law applies to a particular contract), and jurisdiction (where an action may be brought by or against an entity).  It would not be uncommon to find a corporation located in New York, incorporated in Delaware, entering into a contract subject to the laws of Texas (or France).  Based on facts and circumstances, it could be possible to sue that corporation in any number of place (both those places named and other places).  Immunity from jurisdiction (in the sense of efforts to not be "sue-able" in a particular place) is a separate issue, but one that could influence decisions on each of the above issues. Some quality information on California law would help.  Unless we find some real problems with California law and domicile, spending a lot of time on finding another place for an IANA, Inc. that may or may not exist on Day 1 would be misguided.

6.  To clarify one point of California non-profit law that I am fairly sure of -- a California non-profit (technically, called a "public benefit corporation") may have members, but the law does not presuppose that a California non-profit will have members.  This is a choice that should be made at the time of incorporation (though it can be changed later), and is based on the nature of the organization.  Some types of organizations are clearly membership organizations (fraternal organizations, clubs, etc.), others are clearly not, others can go either way.  That said, this is much more germane to the CWG-Accountability mandate.  Unless we are going to consider making IANA a membership corporation... (!)

7.  With regard to Kieren's email, the interpretation of any law (California law or otherwise) can be colored by who the client is and who the audience is.  Advice that a lawyer gives to his/her client about what the law says (or the range of interpretations of the law) will differ from the position that the lawyer (or their client) takes when discussing the law and its interpretation with third parties.  The first should be objective; the second is almost always going to be subjective (either expressly or implicitly, it will be an "advocacy" piece).  ICANN's lawyers are going to be advocates for positions that benefit ICANN.  Asking them to give neutral advice or advice on how to counter ICANN is fraught with peril (for the lawyers as well as those taking the advice).  Of course, this is complicated by the question of "Who is ICANN?" (the corporation, the community, the corporation plus the SO's and AC's?)  But the bottom line is -- if you hire a lawyer, you should expect straight-shooting advice on the law from that lawyer; if you listen to somebody else's lawyer, there is no reason whatsoever to expect straight-shooting advice.

8.  "International Organizations" are very rare (almost non-existent).  Virtually all organizations have a legal "home" in a particular country (and in U.S., in a particular state of the U.S.).  If you look at the first link Robert circulated, the Convention on Legal Personality of INGOs presupposes that an INGO has a legal home in one (and only one) member state.  The IOC is (I believe) a Swiss entity. The International Committee of the Red Cross is a Swiss entity, but one created by the Geneva Convention.  There may be a few other treaty-based INGOs, but by and large INGOs have a legal "home" jurisdiction.  It is their activities that are international, not their domicile/state of incorporation.  Again, this is more of an issue for CWG-Accountability (if it is an issue at all).

9.  I started with scope, and I'll end with it.  If we recommend a corporate IANA, Inc., it would be helpful but not entirely necessary to recommend a jurisdiction.  We could be silent on it.  If (from the point of view of stewardship/accountability) California is a bad choice, it would be helpful to know it.  But this is only one facet (or "variable") of our work (and a sub-variable at that).  We should manage our time accordingly.

Greg

On Wed, Nov 5, 2014 at 2:07 PM, Burr, Becky <Becky.Burr at neustar.biz<mailto:Becky.Burr at neustar.biz>> wrote:
The group of organizations working on the NGO Accountability Charter in
the link Robert just sent around is very instructive:

ActionAid International,
Amnesty International
Caritas Internationalis
Care International
CBM International
CIVICUS World Alliance for Citizen Participation,
CORDAID
European Environmental Bureau
Greenpeace International
Educo
IRC (International Water & Sanitation Centre)
Oxfam International
Plan International
Sightsavers International
SOS Kinderdorf International
The Forest Trust
World Vision International
World YWCA

These organizations may all be doing important work but - UNLIKE ICANN -
they are NOT regulating commercial behavior. If I don¹t like what
Greenpeace is doing, I won¹t make a contribution.  But I can¹t operate a
top level domain or sell registrations in .com without paying ICANN and
complying with the policies it imposes.  It seems fairly obvious to me
that ICANN should be held to a different accountability standard.

B

J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932<tel:%2B%201.202.533.2932>  Mobile:  +1.202.352.6367<tel:%2B1.202.352.6367>  /
becky.burr at neustar.biz<mailto:becky.burr at neustar.biz> / www.neustar.biz<http://www.neustar.biz>

On 11/5/14, 12:43 PM, "Robert Guerra" <rguerra at privaterra.org<mailto:rguerra at privaterra.org>> wrote:

>-----BEGIN PGP SIGNED MESSAGE-----
>Hash: SHA512
>
>Kieren,
>
>Let me share two quick links that I was able to to find that could be
>of interest in regards providing more details about International
>Non-Governmental Organizations and what seems to be best practices
>that others are working on in regards to accountability.
>
>Links below..
>
>regards
>
>Robert
>
>European Convention on the Recognition of the Legal Personality of
>International Non-Governmental Organizations
>
>
>http://en.wikipedia.org/wiki/European_Convention_on_the_Recognition_of_the<https://urldefense.proofpoint.com/v2/url?u=http-3A__en.wikipedia.org_wiki_European-5FConvention-5Fon-5Fthe-5FRecognition-5Fof-5Fthe&d=AAMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=M4a9b8Uq2KA4oDOk0euAXMT1PLI3HMRhgFBQlTBhDc4&s=FiMndWp1vroW1qGxrv6ABZaFAf9BlWFLGnfMG3QN2Hs&e=>
>_Legal_Personality_of_International_Non-Governmental_Organizations
>
>http://www.uia.org/archive/legal-status-4-11<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.uia.org_archive_legal-2Dstatus-2D4-2D11&d=AAMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=M4a9b8Uq2KA4oDOk0euAXMT1PLI3HMRhgFBQlTBhDc4&s=drUw-IhVkEgp-KdwSvttFUSwyyGHSir9Bys9so65gfk&e=>
>
>International Non-Governmental Organisations Accountability Charter
>http://en.wikipedia.org/wiki/International_Non-Governmental_Organisations_<https://urldefense.proofpoint.com/v2/url?u=http-3A__en.wikipedia.org_wiki_International-5FNon-2DGovernmental-5FOrganisations-5F&d=AAMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=M4a9b8Uq2KA4oDOk0euAXMT1PLI3HMRhgFBQlTBhDc4&s=N_aExfsThjw9FUJh41QgfEQDUj8sUmpvxXXjkmYrLn0&e=>
>Accountability_Charter
>
>The International Non-Governmental Organisations Accountability
>Charter (INGO Accountability Charter) is a charter, founded in 2006 by
>a group of independent non-profit organisations, which is intended to
>foster accountability and transparency of non-governmental
>organisations, as well as stakeholder communication and performance.
>
>
>
>
>
>On 2014-11-05 12:30 PM, Kieren McCarthy wrote:
>> I'm finding this conversation thread very frustrating.
>>
>> If this is a topic being seriously considered - and it looks like
>> it is. And if none of us are in any way qualified to provide a
>> cogent analysis - which it looks like we aren't. Then surely the
>> obvious solution is to find someone, or some group, that can
>> provide some answers to questions.
>>
>> Based purely on human nature, I strongly suspect that the argument
>> that California is some how a special place for ICANN/IANA is more
>> to do with it being the status quo than any verifiable reality.
>>
>> It is possible that IANA would be better placed in another
>> jurisdiction - although since we have failed to draw up any grounds
>> by which that judgment would be made, the whole conversation seems
>> a little pointless.
>>
>> It is equally possible that moving jurisdiction would have no real
>> impact at all.
>>
>> One thing that I do see as a fact is that "California law" has been
>> used repeatedly to stymie recommended changes that the staff hasn't
>> agreed with or wanted to introduce. That is a problem.
>>
>> If that is the problem we are seeking a solution to, it strikes me
>> that the conversation should focus on how to get independent
>> analysis of decisions that reference "California law" as a reason
>> for a given direction rather than embark on a discussion about
>> jurisdictions overall.
>>
>> Either way, let's take our jobs seriously and find some experts
>> rather than mistake familiarity with expertise.
>>
>>
>> Kieren
>>
>>
>>
>>
>>
>> On Wed, Nov 5, 2014 at 8:16 AM, Allan MacGillivray
>> <allan.macgillivray at cira.ca<mailto:allan.macgillivray at cira.ca> <mailto:allan.macgillivray at cira.ca<mailto:allan.macgillivray at cira.ca>>>
>> wrote:
>>
>> Becky  I think that would be of considerable value.  ____
>>
>> __ __
>>
>> Allan____
>>
>> __ __
>>
>> *From:*cwg-rfp3-bounces at icann.org<mailto:cwg-rfp3-bounces at icann.org>
>> <mailto:cwg-rfp3-bounces at icann.org<mailto:cwg-rfp3-bounces at icann.org>>
>> [mailto:cwg-rfp3-bounces at icann.org<mailto:cwg-rfp3-bounces at icann.org>
>> <mailto:cwg-rfp3-bounces at icann.org<mailto:cwg-rfp3-bounces at icann.org>>] *On Behalf Of *Burr, Becky
>> *Sent:* November-05-14 10:01 AM *To:* Becky Burr; Dwi Elfrida
>> Martina *Cc:* RFP3
>>
>>
>> *Subject:* Re: [CWG-RFP3] Is there is a more suitable legal
>> jurisdiction for anIANA subsidiary?____
>>
>> __ __
>>
>> Team -____
>>
>> __ __
>>
>> Jurisdiction issues are very complex.  I believe that it would be
>> extremely helpful for us (as well as for many other work streams)
>> to develop a shared  perspective on the basic rules and issues.
>> Although there are many lawyers participating, we would probably
>> get the most benefit from an independent/neutral provider.  If this
>> is of interest, I would be happy to work with the co-chairs and
>> other interested folks to put materials and a webinar
>> together.____
>>
>> __ __
>>
>> J. Beckwith Burr____
>>
>> *Neustar, Inc. /* Deputy General Counsel and Chief Privacy
>> Officer____
>>
>> 1775 Pennsylvania Avenue NW, Washington, DC 20006____
>>
>> Office: + 1.202.533.2932<tel:%2B%201.202.533.2932> <tel:%2B%201.202.533.2932>  Mobile:
>> +1.202.352.6367 <tel:%2B1.202.352.6367>  / becky.burr at neustar.biz<mailto:becky.burr at neustar.biz>
>> <mailto:becky.burr at neustar.biz<mailto:becky.burr at neustar.biz>> / www.neustar.biz<http://www.neustar.biz>
>> <http://www.neustar.biz>____
>>
>> __ __
>>
>> *From: *<Burr>, Becky Burr <becky.burr at neustar.biz<mailto:becky.burr at neustar.biz>
>> <mailto:becky.burr at neustar.biz<mailto:becky.burr at neustar.biz>>> *Date: *Wednesday, November 5,
>> 2014 at 9:24 AM *To: *Dwi Elfrida Martina <dwi.elfrida at gmail.com<mailto:dwi.elfrida at gmail.com>
>> <mailto:dwi.elfrida at gmail.com<mailto:dwi.elfrida at gmail.com>>> *Cc: *RFP3 <cwg-rfp3 at icann.org<mailto:cwg-rfp3 at icann.org>
>> <mailto:cwg-rfp3 at icann.org<mailto:cwg-rfp3 at icann.org>>> *Subject: *Re: [CWG-RFP3] Is there is
>> a more suitable legal jurisdiction for anIANA subsidiary?____
>>
>> __ __
>>
>> Several independent review panels have held that ICANN is subject
>> to international law. ____
>>
>> __ __
>>
>>
>>
>> Becky Burr ____
>>
>> Sent from my iPhone____
>>
>>
>> On Nov 5, 2014, at 03:50, Dwi Elfrida Martina
>> <dwi.elfrida at gmail.com<mailto:dwi.elfrida at gmail.com> <mailto:dwi.elfrida at gmail.com<mailto:dwi.elfrida at gmail.com>>> wrote:____
>>
>> Hi, ____
>>
>> my name is Dwi Elfrida, I am from Indonesia. in respond to optioned
>> 2 from Robert, and thanks to bring the jurisdiction issue up, in my
>> opinion to tie up IANA legal status to ICANN's legal status might a
>> faster way to reach IANA's legislation. But, it wouldn't be
>> solution for many parties who questioned IANA's independency from
>> the US government authority, as I know, for some parties the good
>> news (main spirit)  of  transition of IANA stewardship is to
>> internationalized IANA, means to dismiss the image of single
>> authority of the US government over IANA. Meanwhile, some parties
>> are still debated the ICANN's legislation that cannot be counted as
>> International law, as all cases of TLD (mostly gTLD) will be
>> processed in the US by using the US law. Therefore, the government
>> of France (at ICANN meeting in London) was still calling the issue
>> of making ICANN as International organization legalized by
>> International law. And this idea seems like supported by some
>> governments in Europe, and other part of this world. Indeed,
>> placing IANA's functions and office from the US to other part of
>> this world, is not the solution as well, because it is not the
>> matter or territory, but the matter of legislation system, which
>> law that suitable enough to validate IANA? do we agree to use the
>> US legislation system like has been used by the ICANN, or do we
>> agree to use International law, then how will we make it happen?
>> Our choice on IANA's legislation system will determine the law
>> enforcement of IANA's policies in the future. ____
>>
>> Regards,____
>>
>> Dwi____
>>
>> __ __
>>
>> On Mon, Nov 3, 2014 at 11:33 PM, Greg Shatan
>> <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com> <mailto:gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>>>
>> wrote:____
>>
>> Boxbe
>>
>><https://urldefense.proofpoint.com/v2/url?u=https-3A__www.boxbe.com_overv
>>iew&d=AAMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahO
>>P8WDDkMr4k&m=k2GsV6WE92A31X-8yWSy_xDHzzCQkZmNP4-qSd-m8eA&s=dwXKcyJyHjOeOv
>>MCvWgkHIQUnNb53ULq_5GsKBtjdqM&e=>Greg
>>
>>
>Shatan (gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>
>> <mailto:gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>>) is not on your Guest List
>>
>><https://urldefense.proofpoint.com/v2/url?u=https-3A__www.boxbe.com_appro
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>>
>>
>| Approve sender
>>
>><https://urldefense.proofpoint.com/v2/url?u=https-3A__www.boxbe.com_anno-
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>>
>>
>| Approve domain
>>
>><https://urldefense.proofpoint.com/v2/url?u=https-3A__www.boxbe.com_anno-
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>>WyYFU7bmDZVRcEHQfGtVoCrA-zbiHakjXt0WM&e=>
>>
>>
>____
>>
>> __ __
>>
>> All: ____
>>
>> __ __
>>
>> Here is Robert's second question (which I think also applies to the
>> concept of a fully independent IANA): ____
>>
>> __ __
>>
>> *For  option #2.
>>
>> - Is there is a  jurisdiction that ICANN has (or can obtain) legal
>> status might be more suitable to use to create IANA as a
>> subsidiary. Such an option might allow for the link to be a
>> subsidiary of ICANN, but sever the legal link to the US. A
>> negative, of course, would be moving the function and existing
>> staff to a new part of the world.*____
>>
>> __ __
>>
>> Comments and discussion?____
>>
>> __ __
>>
>> Greg____
>>
>>
>> _______________________________________________ Cwg-rfp3 mailing
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