[CWG-Stewardship] Comments on principles

Thu Oct 23 15:52:18 UTC 2014

In regard to ICANN being organized  under US law (or, more precisely, the non-profit corporation law of the state of California, as all US corporations are organized under state law) --

There have been suggestions, voiced most recently during the LA GAC meeting, that the IANA transition is insufficient because at the end ICANN will still be a US non-profit and that therefore it should be reorganized as an entity under "International law". But there is in fact no body of International law under which ICANN could be chartered; the closest one could come to that would be to establish it (or a successor entity) as an Intergovernmental organization having aspects of sovereign immunity -- but the NTIA transition principles make clear that this is not an acceptable option.

If the IANA functions or some subset of them are placed outside of ICANN then we can debate under the laws of what jurisdiction the entity exercising them should be organized. If there is a decision to continue to have a party/counterparty arrangement for a revised IANA contract, with some entity replacing the USG/DOC as counterparty, then we can discuss what choice of law provision should be in that contract so far as interpretation and enforcement go. 

But if ICANN is to remain a multistakeholder private sector entity then it must be organized under the laws of some nation and it will continue to conduct its activities through contractual arrangements specifying a choice of jurisdiction. So even if it were to reorganize under Swiss law, for example, its contracts might remain subject to US enforcement depending on the choice of law provision in its contracts.

What is to be gained by a movement away from the US to some other jurisdiction? The only objection I have heard voiced to the present arrangement is that as a US entity ICANN is subject to the US Treasury's OFAC list that prohibits business with designated terrorist or criminal organizations. So ISIS and mafia-style entities cannot be contracted parties or applicants for new gTLDs -- is that an issue to concern us?

Remember also that ICANN remains a signatory to the Affirmation of Commitments (AOC) with the USG, which requires it to remain a non-profit entity headquartered in California. While there has been speculation that ICANN might exercise its right to withdraw from the AOC post-transition, there is no realistic possibility that it will do so during the life of this CWG.

So any discussion of ICANN's legal status by this CWG must be bounded by the realities that the NTIA will not accept a transition plan that proposes an intergovernmental organization and that the AOC requires ICANN to maintain a US HQ. 

One note: The California non-profit law will arise in the separate CCWG on Enhanced Accountability, insofar that ICANN has taken the position in regard to the highest level of accountability that now exists for it, the Independent Review Panel, that its findings are merely advisory and not binding and that CA law prohibits any outside third party from having the power to override Board decisions.  But that is largely an issue to be confronted by the other CCWG, not this CWG.

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-----Original Message-----
From: cwg-stewardship-bounces at icann.org [mailto:cwg-stewardship-bounces at icann.org] On Behalf Of Fouad Bajwa
Sent: Thursday, October 23, 2014 11:28 AM
To: Seun Ojedeji
Cc: cwg-stewardship at icann.org
Subject: Re: [CWG-Stewardship] Comments on principles

And thats an important aspect to realize that ICANN is till registered under US Law as a non-profit corporation??? That may bring us back to that very old discussion that how is IANA impacted if it were to remain under ICANN and its longstanding US non-profit laws abiding situation? Opening offices around the world doesn't move ICANN out of US Law bindings.

On Thu, Oct 23, 2014 at 10:27 AM, Seun Ojedeji <seun.ojedeji at gmail.com> wrote:
> I think those are defined in the NTIA requirement with perhaps the 
> biggest one being the no  governmental/intergovernmental replacement.
>
> Cheers!
>
> sent from Google nexus 4
> kindly excuse brevity and typos.
>
> On 23 Oct 2014 01:55, "Fouad Bajwa" <fouadbajwa at gmail.com> wrote:
>>
>> Is it possible to understand what are the boundaries or limits of the 
>> IANA contract that should not be crossed at all in the transition 
>> design? I am thinking from outward to inwards...
>>
>> On Thu, Oct 23, 2014 at 1:30 AM, Avri Doria <avri at acm.org> wrote:
>> > Hi,
>> >
>> > I see at least 1 other category and another entry for the 
>> > Accountabilty category
>> >
>> >
>> > the new Category is Separability.
>> >
>> > In order to reproduce the NTIA contract, it has to be possible for 
>> > the Naming policy groups of ICANN to become dissatisfied and move 
>> > the contract for the function elsewhere.  This is the correlate of 
>> > the IETF capability.
>> > Other principles such as stabilty  mean this can't just happen 
>> > willy nilly, but there must be some sort of periodic opportunity 
>> > this to happen.  Or perhaps a 6 month clause like the IETF has.  
>> > while there are several ways to do this, I think it critical that 
>> > the plan include the possiblity and the means.
>> >
>> > And the new bullets in accountability
>> >
>> > - There needs to be a mechanism for an enforceable means of redress.
>> > Whether it is achieved by binding arbitration, some sort of 
>> > juridical system or a yet to be named capability, it has to be 
>> > possible for there to be an accessible and relaible mean of 
>> > redress.
>> >
>> > - We need to decide to whom it is accountable.  The stakeholders?  
>> > The policy process? the registries? the registrants? the users?
>> > Accountabilty
>> > must be accountabilty to someone.  I beleive it is the 
>> > stakeholders, but that probably needs to be further defined.  Do we 
>> > mean the multiplicity of stakeholder groups ICANN has?  Or do we 
>> > mean to a Tunis Agenda model of stakeholders?  Some other model?
>> >
>> >
>> > The answers to the principle questions will say a lot about the 
>> > kind of solution we might come up with.
>> >
>> > thanks
>> >
>> > avri
>> >
>> >
>> >
>> >
>> > _______________________________________________
>> > CWG-Stewardship mailing list
>> > CWG-Stewardship at icann.org
>> > https://mm.icann.org/mailman/listinfo/cwg-stewardship
>> >
>>
>>
>>
>> --
>> Regards.
>> --------------------------
>> Fouad Bajwa
>> ICT4D and Internet Governance Advisor My Blog: Internet's Governance: 
>> http://internetsgovernance.blogspot.com/
>> Follow my Tweets: http://twitter.com/fouadbajwa 
>> _______________________________________________
>> CWG-Stewardship mailing list
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--
Regards.
--------------------------
Fouad Bajwa
ICT4D and Internet Governance Advisor
My Blog: Internet's Governance: http://internetsgovernance.blogspot.com/
Follow my Tweets: http://twitter.com/fouadbajwa _______________________________________________
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