[Ws2-jurisdiction] [CCWG-ACCT] [Ws2-staff_acct] Notes, recordings, transcript for WS2 Jurisdiction Subgroup Meeting #6_ 05 October 2016
parminder
parminder at itforchange.net
Tue Oct 11 08:01:24 UTC 2016
On Thursday 06 October 2016 08:26 PM, parminder wrote:
>
> Hi All,
>
> Having volunteered to be a participant in this group, first of all I
> must apologize for my absence over the last many weeks - I was on a
> long vacation and only recently came back.
>
> I did not attend yesterday's meeting because I hadnt read the
> exchanges on this list and the transcripts of the previous meetings -
> thought it inopportune to participate without doing so. Having done it
> now, allow me to share some comments.
>
> (1) Regarding multiple layers of the 'jurisdiction issue':
>
> The main concern historically, and also to me, under the 'jurisdiction
> issue' has been of application of 'public law' of one country
> (including the authority of its various executive agencies) to the
> critical global infrastructure that ICANN manages. It is not just
> about 'private law', which has always been much less of a problem.
> Unlike 'private law', there is no choice with respect to 'public law',
> it is compulsory and backed by the full coercive force of the state.
>
> I am not sure where it fits in the table of jurisdictional layers
> circulated by Greg, but probably in the 'jurisdiction of incorporation'.
>
> In the plenary elist discussion, I had illustratedvarious problems
> with the application of US public law (including the authority of its
> various executive agencies) to ICANN. I do not want to repeat them
> here. My question to the group, and specifically its chairs, is; are
> we considering this issue of application of US public law to ICANN,
> and the problems that it may cause with respect to its policy
> processes, and being able to appropriately carry out its global
> governance role?
>
I will respectfully request the Chairs to please respond to specific
questions that WG members may ask from them - as I did above. Thanks,
parminder
> (2) On the other much discussed issue of 'gap analysis':
>
> I completely agree with those who have said here that with respect to
> 'whether Californian law has any significant gaps regarding
> appropriate and satisfactory carrying out of new accountability
> processes' there really is not much to discuss. These processes were
> specifically constructed out of the possibilities contained in
> Californian law, by experienced legal experts, and repeatedly analysed
> and tested by them, and then by others.
>
> Is there anyone here who seriously thinks that there could be gaps
> with regard to Californian law in operationalising the new
> accountability processes? I really want to know. Let us spend time
> only on such issues where there is some real, stated concern. And if
> there is none, as I suspect in this case (happy to be corrected, but
> with a precise statement of concern), lets move on and not waste
> precious time.
>
> The focus of 'gap analysis' should be elsewhere. Our early guiding
> documents for this WG
> <At+this+point+in+the+CCWG-Accountability%92s+work,+the+main+issues+that+need+to+be+investigated+within+Work+Stream+2+relate+to+the+influence+that+ICANN%92s+existing+jurisdiction+may+have+on+the+actual+operation+of+policies+and+accountability+mechanisms.>says
> " At this point in the CCWG-Accountability’s work, the main issues
> that need to be investigated within Work Stream 2 relate to the
> influence that ICANN’s existing jurisdiction may have on the actual
> operation of policies and accountability mechanisms."
>
> IMHO it is not so much the influence of ICANN's existing jurisdiction
> on "accountability mechanisms" that needs to be probed (though happy
> to hear the contrary case with clear statement of concerns and
> issues). What is needed is to examine the influence of ICANN's
> existing jurisdiction as on "actual operation of policies".
>
> Accordingly, let me give a very brief but illustrated outline of the
> kind of gaps, issues and concerns that come up here.
>
> A US court deciding that .xxx delegation violates US competition laws,
> and is therefore nullified, directly impacts "actual operation of
> ICANN policies", in the sense that though the current delegation of
> .xxx is as per ICANN policies it cannot really be operationalised.
>
> Similar interference with "actual operation of ICANN policies" could
> be caused by some new action by the US Office of Foreign Assets
> Control. Or, of the FCC having a rethink some time later (as it did in
> reclassification of Internet as title 2) that it needs to reverse its
> forbearance on Internet addressing issues. Or, US Customs forcing
> ICANN to seize the gTLD of a Spanish sports streaming company or of an
> Indian generic drug company for alleged being foul of US intellectual
> property standards (even when the primary business of these companies
> is not in the US), and so on..........
>
> I think these are the gaps in the current jurisdictional structure
> around the ICANN which (adversely) influences its "actual operation
> of policies". These are the sort of things that are most salient vis a
> vis the jurisdiction issue, which IMHO we should be discussing.
>
> (The issue of jurisdiction as related to the application of private/
> contract law to various ICANN activities may also be important. But
> the likely remedies for possible concerns in this regard are easily
> agreed to. I dont think there are any differences here about it. If
> there indeed are, I would like to hear them. In fact, to first know
> the statement(s) of problem in this regard. )
>
> In short, what I am saying is, lets be clear about the key issues and
> problems that this group actually faces, list the clear nature of the
> problems, and then seek their possible resolution. And, if they cannot
> be resolved, just conclude so.
>
> Hope this is useful.
>
> parminder
>
> On Thursday 06 October 2016 02:45 AM, Yvette Guigneaux wrote:
>>
>> Hello all,
>>
>>
>>
>> The notes, recordings and transcripts for CCWG Accountability WS2
>> *Jurisdiction Subgroup, Meeting #6* –
>>
>> 05 October 2016 will be available here:
>> https://community.icann.org/x/RQi4Aw
>>
>>
>>
>> A copy of the notes may be found below.
>>
>>
>>
>> Thank you.
>>
>>
>>
>>
>>
>> */Kindest Regards,/**//*
>>
>> */Yvette Guigneaux/*
>>
>> /Multi-Stakeholder & Strategic Initiative Assistant/
>>
>> */ICANN |/*/*Internet Corporation for Assigned Names & Numbers*/
>>
>> /12025 Waterfront Drive, Playa Vista, CA 90094/
>>
>> /yvette.guigneaux at icann.org <mailto:yvette.guigneaux at icann.org> |
>> www.icann.org <http://www.icann.org>/
>>
>> / /
>>
>> /
>> ------------------------------------------------------------------------
>> /
>>
>> / /
>>
>> *WS2 - Jursidiction Subgroup Meeting #6 | Wednesday, 05 October 16|
>> 13:00 UTC***
>>
>> * *
>>
>> *Notes (including relevant parts of chat):*
>>
>> * *
>>
>> *20 participants at the start of the meeting.*
>>
>> * *
>>
>> *1. Welcome*
>>
>> · Greg Shatan: No changes.
>>
>> *2. Scope of our Work*
>>
>> · Greg Shatan: I believe we have not yet settled the scope of
>> our work. We can look at the EFFECTS of the place of incorporation.
>>
>> · Jorge Cancio (GAC Switzerland): Is there any new proposal on
>> the scope of our work? We still have Annex 12 approved by the
>> community in Marrakech - that should be our basis...
>>
>> · David McAuley: Annex 12, paragraph 30 seems pretty clear: At
>> this point WS2’s focus should be on the settlement of dispute
>> jurisdiction issues – in that effort we should include confirming and
>> assessing not the “gap” but the “gap analysis” –meaning, IMO, the
>> provisions we have put in place for dispute resolutions – will
>> they/do they work?
>>
>> · Jean-Jacques Subrenat: For item 3 on our agenda, I will
>> refer to a document of which I was a co-author, "Improving
>> Institutional Confidence of ICANN", see
>> archive.icann.org/en/psc/iic/improving-confidence-ne.pdf
>>
>> · Jorge Cancio (GAC Switzerland): I feel the discussion on
>> scope gets us into a circle... until we do not tackle the issues
>> potentially under the scope agreed in Marrakech we won't see whether
>> they are or not off-limits
>>
>> · Tatiana Tropina: It feels quite good - you miss the couple
>> of calls due to the tight travel schedule, and here we go - moving
>> headquarters, not moving headquarters. My opinion stays the same -
>> this is completely out of scope.
>>
>> · Tatiana Tropina: Jorge, a rare case when I agree with you :D
>>
>> · David McAuley: Our job is to look at alternatives vs dispute
>> resolution period.
>>
>> · Jean-Jacques Subrenat: 1) In "Improving Institutional
>> Confidence" 2008-09, I as one of the co-authors had proposed the
>> notion of "additional jurisdiction", rather than "alternative
>> jurisdiction". This was important: ICANN Headquarters would not
>> change, but jurisdiction could be added for non-contract aspects.
>>
>> · Phil Corwin: vs arguing if it is in scope - does it make any
>> sense discussing this possibility given there are no gaps, we have
>> spent much money and time on making this under California law.
>> Looking at alternates would be a significant undertaking which would
>> long expensive and arduous. Agree with DM vs our scope. I agree with
>> one of the previous speakers (David?) that we could agree to
>> distinguish 2 things, contract-related items (US/California
>> jurisdiction) and other items (conflict resolution, etc).
>>
>> · Cheryl Langdon-Orr (CLO): I agree with David and Phil here
>>
>> · Greg Shatan: PC and DM seem like logical conclusions. Worth
>> noting that the gNSO council has passed a condition on the CCWG
>> budget that it could not support work in the CCWG wrt moving ICANN's
>> location of incorporation.
>>
>> · Jorge Cancio: I wish to reiterate relative to scope - we
>> have a scope from WS1 recommendation 12 - we should live with the
>> AMBIGUITY for the moment. It would be more efficient to go to
>> specific discussions and then we will see if there are issues that
>> are out of scope. To have this scope beforehand is putting the cart
>> before the horse.
>>
>> · Greg Shatan: PC's remarks have moved us past scope to the
>> realism of moving ICANN. What are your thoughts on this JC.
>>
>> · Jorge Cancio: This is scope. (car analogy).
>>
>> · Greg Shatan: since the remit of this group is 9 months it
>> would seem unrealistic to think we would change the engine on the car
>> in that time. (reads JJS comments from chat because of audio issues).
>>
>> · Pedro da Silva: My comment is in line with JC - at this
>> point of time this does not make sense and it is probable that when
>> we complete our analysis of issues we will have the same conclusion
>> but it will be stronger -so we should not deal with this at this point.
>>
>> · Finn Petersen, GAC - DK: Denmark is of the view that it is
>> not within our scope to recommend moving ICANN’s Place of
>> Incorporation or Headquarters Location from California. But if
>> anybody can point to potential problems, we might look into means to
>> address such problems without changing ICANN’s place of incorporation.
>>
>> · David McAuley: As a member of IRP there are issues that are
>> related to IRP and touch on Jurisdiction.
>>
>> · Jorge Cancio (GAC Switzerland): @David: thanks, hope that we
>> keep efforts in parallel well coordinated...
>>
>> · Greg Shatan: straw vote for this or not.
>>
>> · Tijani Ben Jemaa: uncomfortable with this.
>>
>> · Jorge Cancio (GAC Switzerland): For the reasons given I step
>> away from such a straw poll
>>
>> · Greg Shatan: many of our participants are arguing for this
>> which is why I am bringing this up. Many green ticks no objections.
>>
>> · Jean-Jacques Subrenat 2: @Greg: I agree that "moving the
>> headquarters out of California" is not an urgent matter. We should
>> examine what ADDITIONAL jurisdictions could achieve, for specific
>> purposes.
>>
>> · Greg Shatan: We have now covered points 2 and 3 in the
>> agenda. Let us move to item 5.
>>
>> *3. Is the Possibility of Moving ICANN’s Place of
>> Incorporation or Headquarters Location from California in Scope?*
>>
>> · (see previous point)
>>
>> *4. Confirming and Assessing the Gap *
>>
>> * Analysis*
>>
>> *a. “Gap” analyzed in Work Stream 1*
>>
>> *b. Result of Gap Analysis in Work Stream 1*
>>
>> *c. How should we confirm the WorkStream 1 *
>>
>> * Gap Analysis?*
>>
>> · *(Skipped)*
>>
>> *5. Multiple Layers of Jurisdiction *
>>
>> · Greg Shatan: Presentation of the slide on Multiple Layers.
>>
>> · Jean-Jacques Subrenat: (continuing issues) Multiple layers
>> is interesting but what are the purposes of having additional
>> jurisdictions (additional vs alternate). Second remark (dropped audio),
>>
>> · Greg Shatan: Why are we not using Adobe audio JJS - most use
>> it for visual but audio is on phone because of quality issues. Any
>> comments on the slide?
>>
>> · Pedro da Silva: This is a good start. and how we should
>> start our work. Would like a week to comment on this to see if we
>> need to add to this. After that we could look at each of these as to
>> how they affect the work of ICANN.
>>
>> · Phil Corwin: There is a difference between types of
>> contracts - registries and registrars should probably be under US law
>> just for uniformity. Other parties such as real estate in other
>> countries is another issue.
>>
>> · Jean-Jacques Subrenat 2: @Greg: I suggest we use "additional
>> jurisdictions" to avoid confusion about wanting to change
>> headquarters or not. I was also saying it would be useful to examine
>> several tasks where an additional jurisdiction would be useful, e.g.
>> hiring people outside the US (employment, insurance, taxes).
>>
>> · Greg Shatan: A third category could be for the choice of law
>> for enforcing the decisions of the Empowered Community. Encourage
>> everyone to read JC's email. Contracts with contracted parties are
>> silent on choice of law or venue - we should confirm this. Let us
>> look and comment on the slide in Google doc for comments. Next
>> meeting 1900UTC Monday. Adjourned.
>>
>>
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