[Ws2-jurisdiction] Jurisdiction Subgroup: The Path Forward
parminder
parminder at itforchange.net
Wed Aug 16 04:28:21 UTC 2017
Greg
Yes, everyone shd look up the transcripts, and one tries to do as much
as one can. But one may miss things, and answers to ones questions may
not even be there.
So, am I to take that you refuse to answer the question about this new
process where you have disconnected from the earlier process of issues
framing and begun an entirely new one, with a doc containing, as far as
I know, completely arbitrarily chosen few issues, and not others from
the original document?
parminder
On Monday 14 August 2017 07:19 PM, Greg Shatan wrote:
> All,
>
> With apologies, I am traveling with family this weekend, through
> tomorrow, so I cannot reply individually or in detail until this evening.
>
> As a general matter;
>
> The Jurisdiction Subgroup has a wiki page
> All significant documents of the Subgroup should be stored or linked
> there.
> Each meeting has a wiki page on the Subgroup wiki. Each page has a
> recording and captioning and/or transcripts for that meeting.
>
> All Subgroup members are expected to review the transcripts or
> recordings for meetings they do not attend. If captioning/transcripts
> are unclear, they can be clarified by listening to the recording.
>
> All Google Docs have been shared in emails in this group.
> All Google Docs are stored in a Jurisdiction Subgroup folder. This
> folder has been shared in emails in this group.
>
> Most of the significant documents have been referred to and linked in
> our Work Plan, which is in the folder, on the wiki and in emails.
>
> Please use these tools to find documents, meeting information and
> emails. That would be very helpful to our progress.
>
> I will provide links this evening. I encourage others, unless time
> does not permit, to provide links to documents to which they refer,
> and I thank those who have done so in their correspondence.
>
> Greg
>
> On Mon, Aug 14, 2017 at 3:41 AM, Kavouss Arasteh
> <kavouss.arasteh at gmail.com <mailto:kavouss.arasteh at gmail.com>> wrote:
>
> dEAR gREG,
> I have already raised in two communications few questions which
> are still valid, even though some people ,in a recent peer
> communication has surprisingly told me believe that I have
> not raised any question at all during the entire period, which is
> unfair to say so as I have been very active and raised several
> questions .However, that is their views for which I do not care. .
> I may send some explanations in regard with some of them if the
> time permits.
> Regards
> Kavouss
>
> On Mon, Aug 14, 2017 at 8:57 AM, <Jorge.Cancio at bakom.admin.ch
> <mailto:Jorge.Cancio at bakom.admin.ch>> wrote:
>
> Dear Greg and all,
>
>
>
> Here is my feedback:
>
>
>
> - The “.swiss” input into the questionnaire still
> stands, which identifies issues and also some possible
> solutions. (see attached)
>
>
>
> - In addition, I would like to recall the following
> inputs I made to the “influence document” (which I found here:
> https://community.icann.org/display/WEIA/Jurisdiction
> <https://community.icann.org/display/WEIA/Jurisdiction>):
>
>
>
> “ICANNs main agreements (with registries and registrars) are
> generally silent on applicable law. This silence may be
> construed differently by different courts in different
> jurisdictions, although I feel there is a natural tendency in
> courts to apply its own laws if the agreement is silent and
> there are internal/national rules that tilt into a certain
> direction. This means that the choice of applicable law may be
> limited nowadays in practice, which in principle may
> disadvantage stakeholders not familiar with the implicit
> choice of law.
>
>
>
> At the same time, registry agreements for IGO/Governmental
> entities have some flexibilities built in as to applicable law
> or, to be more precise, as to conflicts arising from diverging
> obligations coming from the agreement with ICANN and the
> international law obligations. This is reflected for instance
> in section 7.16 of the model registry agreement.
>
> This flexibility could be extended to other registries
> confronted with similar conflicts, not only with international
> law, but also when confronted with conflicts stemming from
> national law.
>
>
>
> The flexibility could also take the form of a more wider
> recognition of freedom to choose the applicable law for the
> parties in the main agreements ICANN has.
>
>
>
> The material you mention has, at least at first glance, some
> relevant rules of choice of law that in a foreigners eye seem
> to clearly tilt for the "forum" jurisdiction (for instance the
> "government interest analysis test").
>
>
>
> But, what are the rules followed by California?
>
>
>
> I see that for “contracts” (most relevant to contracting
> parties) the second restatement is followed apparently which
> provides the following:
>
>
>
> "d.Contract: In the first instance, the courts must give
> effect to the law chosen by the parties. In the absence of any
> such agreement, the courts are directed to the “significant
> relationship” test of Section 6. Restatement (Second) of
> Conflict of Laws § 188. The contacts to take into account in
> determining those principles are:
>
> i.the place of contracting,
>
> ii.the place of negotiation of the contract,
>
> iii.the place of performance,
>
> iv.the location of the subject matter of the contract, and
>
> v.the domicile, residence, nationality, place of incorporation
> and place of business of the parties."
>
>
>
> It would be interesting to know how these contact points are
> construed in the relation between ICANN and its contracted
> parties, i.e. what the place of contracting is, the place of
> negotiation, place of performance, etc. - how they are
> intended to be construed by the contracting parties and what
> have been the actual analysis (if any) in the cases had up to
> today in disputes.
>
>
>
> For "torts" (I guess including cases brought for damages by
> materially harmed parties that are not contractually bound to
> ICANN) the mentioned "governmental interest analysis" seems to
> apply ("California uses this test in determining the law
> applicable to tort claims.").
>
>
>
> This test means that "the law of the forum is presumed to
> apply unless a party demonstrates otherwise."
>
>
>
> I feel this could be seen as a significant tilt.
>
>
>
> _Experiences on how these rules (both on contracts and torts)
> apply in practice could be of interest and could be contrasted
> with ICANN, and registries and registrars (and other parties)
> based in other jurisdictions. That fact-finding exercise would
> also allow us to see whether and in what instances that
> "tilting" occurs._
>
>
>
> _A similar fact-finding should be done for what “applicable
> law” applies in internal mechanisms (such as the IRP)._
>
>
>
> 2) Making sure that the hearings of the IRP are
> location-neutral
>
>
>
> 3) In the “multiple layers” doc, under “venue”, I had
> identified the following issues and solutions:
>
>
>
> “Under venue or venues: multiplicity of venues and of
> providers of dispute resolution mechanisms (be it judicial or
> arbitration). Flexibilities as to standards, election of
> providers, language of proceedings, freedom to choose for the
> parties.]“ and “I guess that under “venue” we would need to
> consider the IRP and other internal redress mechanisms and how
> well they address the needs of a global stakeholder
> community, in terms of their composition, the language of
> proceedings, the venue(s), the providers, etc.].”
>
>
>
> I may have missed other important points made before, but I’m
> sure Secretariat could help in collating all our essential inputs.
>
>
>
> Kind regards
>
>
>
> Jorge
>
>
>
>
>
> *Von:*ws2-jurisdiction-bounces at icann.org
> <mailto:ws2-jurisdiction-bounces at icann.org>
> [mailto:ws2-jurisdiction-bounces at icann.org
> <mailto:ws2-jurisdiction-bounces at icann.org>] *Im Auftrag von
> *Greg Shatan
> *Gesendet:* Samstag, 12. August 2017 01:13
> *An:* ws2-jurisdiction <ws2-jurisdiction at icann.org
> <mailto:ws2-jurisdiction at icann.org>>
> *Cc:* Thomas Rickert <thomas at rickert.net
> <mailto:thomas at rickert.net>>
> *Betreff:* [Ws2-jurisdiction] Jurisdiction Subgroup: The Path
> Forward
>
>
>
> Jurisdiction Subgroup Members,
>
>
>
> As explained by Staff at our last meeting on 9 August, we have
> until *11 October* to submit a draft set of recommendations to
> the Plenary for consideration as a first reading if any such
> recommendations are to be accepted by the Plenary, published
> for Public Consultation and included in the Final WS2 Report.
>
>
>
> In other words, we have about *8 weeks* to develop a draft set
> of recommendations and come to consensus on these.
>
>
>
> Obviously, given this time-frame, we have to accept that we
> will not be able to address all issues. In fact, the only
> realistic approach, if we want to deliver any recommendations,
> is to pick a handful of issues (2 to 4) on which we can all
> agree and for which we believe we can propose recommendations
> that will achieve consensus.
>
>
>
> I remain optimistic that we can do this if we can agree,
> meaning everyone will have to compromise, to select this
> limited number of issues over the next very few weeks and work
> diligently at meetings and on the list to develop
> recommendations for these.
>
>
>
> To reach this objective I would propose the following approach:
>
>
>
> * *Each participant should pick _one_ issue which they
> believe is in scope for us and post that issue to the list
> prior to our meeting of 23 August. More specifically:*
>
> o *Issues should be very specific -- avoid open-ended,
> abstract or omnibus issues*
> o *Issue description should be succinct -- 12 standard
> lines maximum*
> o *Proposed solutions – if you have a possible solution
> or recommendation which should be considered, please
> include it (again, being succinct).*
> o *Put your issue in a new email (not a reply), with the
> subject ISSUE: [name of issue]*
> o *The sooner, the better*
>
> I look forward to discussing this proposal at our next meeting
> of *16 August* and I would encourage participants to comment
> on this proposal in response to this email prior to that meeting.
>
>
>
> Greg
>
>
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