[Ws2-jurisdiction] Jurisdiction Subgroup: The Path Forward

parminder parminder at itforchange.net
Wed Aug 16 10:27:50 UTC 2017



On Wednesday 16 August 2017 10:22 AM, Greg Shatan wrote:
> snip
>
> 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.

https://community.icann.org/download/attachments/59643282/InfluenceofExistingJurisdictionsforDisputesonPolicyandAccountability.docx?version=2&modificationDate=1487972465000&api=v2

parminder


>
> Greg
>
> On Wed, Aug 16, 2017 at 12:28 AM, parminder <parminder at itforchange.net
> <mailto: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 <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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>>
>>
>>
>>
>>
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>
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