[Ws2-jurisdiction] Jurisdiction Subgroup: The Path Forward

Wed Aug 16 06:14:14 UTC 2017

Dear Greg,
I wish to point out the FOLLOWINGS:

1. I have provided you with the list of questions that i raised and did
kindly include them in a more substantive list which is still valid PLUS
those new questions raised at that famous meeting

2. I have asked, as supported by three other participants, a written answer
to be provided by SAM taking into account the following:

2.1. Transcript was incomplete with sometimes broken and incoherent
sentences and 2.2. Some of the questions were not answered. I INDICATED
that to Bernie and he kindly confirmed that he has sent the raw transcript
to the central office and expect to receive the corrected and valid version
.I have not seen that version yet

2.3. I have also forwarded a copy of a blog received by 13 January 2017 in
which many issues of our interest are well described together with some
possible solution.

I therefore do not see any reasons that I bother you and repeat them

I reply on your kind action to consolidate them in a new list or amend the
previously existed list .

Regards

Kavouss

On Wed, Aug 16, 2017 at 6:52 AM, Greg Shatan <gregshatanipc at gmail.com>
wrote:

> The answers are quite clearly in the transcripts and on the email list,
> and have been pointed by others.
>
> There is no basis for you to claim that i am refusing to answer, other
> than to be inflammatory.  I have already stated that I have been traveling
> the last several days and unable to answer in detail.
>
> The "new" document you are referring to was created on *June 16*, as an
> empty list.  The idea was to pull the potential issues from the multiple
> different documents where such potential issues have been suggested and
> have a single combined list of all of these issues to work from.
> Specifically, the idea was that members who either had put forward issues
> or had worked on litigation reviews or questionnaire response analysis
> where issues were raised would add those issues to the list.  This idea was
> proposed to the group in June and there were no significant objections at
> that time.  On virtually every agenda and call for the last two months, I
> have called for participants to add potential issues to the list.  The
> "arbitrarily chosen few issues" are those put on the list by those
> participants who responded to this request.
>
> As for an "original document" that served as a central repository for the
> proposed issues, I'm honestly uncertain what document you are referring
> to.  Can you please provide the specific "original issues doc" you refer
> to?  That would be helpful.
>
> Greg
>
> On Wed, Aug 16, 2017 at 12:28 AM, parminder <parminder at itforchange.net>
> wrote:
>
>> 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> 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> 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):
>>>>
>>>>
>>>>
>>>> “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] *Im Auftrag von *Greg Shatan
>>>> *Gesendet:* Samstag, 12. August 2017 01:13
>>>> *An:* ws2-jurisdiction <ws2-jurisdiction at icann.org>
>>>> *Cc:* Thomas Rickert <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:*
>>>>
>>>>
>>>>    - *Issues should be very specific -- avoid open-ended, abstract or
>>>>       omnibus issues*
>>>>       - *Issue description should be succinct -- 12 standard lines
>>>>       maximum*
>>>>       - *Proposed solutions – if you have a possible solution or
>>>>       recommendation which should be considered, please include it (again, being
>>>>       succinct).*
>>>>       - *Put your issue in a new email (not a reply), with the subject
>>>>       ISSUE: [name of issue]*
>>>>       - *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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>>>>
>>>>
>>>
>>
>>
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