[Ws2-jurisdiction] Mandate and Scope of Jurisdiction Subgroup will be on Tuesday's Agenda
Matthew Shears
matthew at intpolicy.com
Thu Jun 8 14:29:51 UTC 2017
I also support David's position from back in December.
Matthew
On 08/06/2017 01:19, Raphaël BEAUREGARD-LACROIX wrote:
> Hello all,
>
> A quick response to say that I also support David's statement. The
> narrower the better.
>
> And for the sake of keeping up with other email chains, I do think
> that examining the consequences of ICANN being a California not for
> profit corporation vs anything else is part of the mandate. However
> when ICANN's place of incorporation comes into the picture, our focus
> should precisely be on the consequences of that (e.g. issues with OFAC
> sanctions) rather than discussing possible changes, which would not be
> for us alone to reflect on or (even less so) decide.
>
> Best,
>
> 2017-06-08 0:52 GMT+03:00 Paul Rosenzweig
> <paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>>:
>
> I fully support David’s statement of the mandate’s jurisdiction.
> It is depressing indeed that a vocal minority of people continue
> to seek an expansion when it is neither required by our mandate
> nor supported by a majority of our subgroup. The continued
> insistence of some on relitigating issues over and over again is
> both delaying important work and, frankly, providing an excellent
> example of the way the “heckler’s veto” works in multi-stakeholder
> processes.
>
> I have been silent on this list because there is absolutely
> nothing new that has been said in the last 3 months that isn’t
> exactly what was said before hand. Like Nigel, I think we should
> bury this dead horse instead of beating it.
>
> Paul
>
> Paul Rosenzweig
>
> paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>
>
> O: +1 (202) 547-0660
>
> M: +1 (202) 329-9650
>
> VOIP: +1 (202) 738-1739
>
> www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
>
> My PGP Key:
> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
> <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684>
>
> *From:* 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>] *On Behalf Of *Greg
> Shatan
> *Sent:* Wednesday, June 7, 2017 4:35 PM
> *To:* ws2-jurisdiction at icann.org <mailto:ws2-jurisdiction at icann.org>
>
>
> *Subject:* Re: [Ws2-jurisdiction] Mandate and Scope of
> Jurisdiction Subgroup will be on Tuesday's Agenda
>
> All,
>
> This discussion is specifically called for in our revised Work
> Plan and Schedule, which was approved by the Subgroup in April.
> In Section 4 (Work Plan and Schedule Going Forward) subsection
> 4(d) states:
>
> d. Subgroup revisits issue of Scope of the Subgroup
>
> 1. Previous discussions on scope should be reviewed prior to
> discussion
> 2. Any lists of proposed issues should be reviewed
>
> 1. Proposed issues should be acknowledged even if there
> is no consensus
>
> 3. New inputs or views should be solicited
> 4. Ample work should be done on the list
> 5. This should not be a complete rehash of prior discussions
> 6. Group should discuss scope and come to a decision on the
> Scope of the Subgroup and the questions to be answered by
> the Subgroup
> 7. Agenda for Scope meeting should be circulated
> approximately 7 days in advance to promote maximum
> participation
> 8. A deliverable should be prepared reflecting the
> deliberations and outcome
>
> We are up to this point in our Work Plan.
>
> It's also worth a reminder of the Work Plan's approach to "issues":
>
> 1. *GENERAL APPROACH*
>
> 1. The Subgroup will identify *Issues *before it goes on to
> explore*Remedies.*
> 2. There must be broad agreement in the Subgroup that a
> proposed issue is in fact an *Issue *and that the *Issue
> *is one that falls within the remit of the Subgroup.
> 3. For each *Issue,* the group will then look at proposed
> remedies.
>
> 1. The group should not discuss a *Remedy* until an
> *Issue* has been identified that requires discussion
> of that *Remedy*.
> 2. The Subgroup needs to consider how a proposed remedy
> would resolve the *Issue *(or fail to resolve the
> Issue or even make it worse)..
> 3. The Subgroup also needs to consider the effects and
> consequences of the *Remedy*.
> 4. The Subgroup needs to consider how the *Potential
> Remedy* would enhance ICANN’s accountability (or have
> no effect on ICANN’s accountability or even hamper
> ICANN’s accountability).
>
> Under 1(b), the group must consider and agree that a proposed
> issue is "one that falls within the remit of the Subgroup."
> Without a common understanding of the "remit of the Subgroup,"
> this step cannot be adequately completed. This is a most practical
> reason why the mandate and scope of the Subgroup needs to be
> clarified.
>
> I agree with Jorge, up to a point, that "we need to stick to the
> mandate given to the CCWG ws2 by the chartering organizations."
> This is found in the Charter, in the Final Proposal and in the
> Transition Bylaw (which were collected in pertinent part in the
> document I circulated a couple of weeks ago). Unfortunately, we
> have not yet arrived at a common understanding of what that
> mandate is. Annex 12 cannot be read in isolation from the
> Charter, the Final Proposal, the Bylaw, all of which are "higher
> level" documents.
>
> It is precisely because we are discussing substantive issues that
> we need to clarify our understanding of the mandate we've been
> given. The mandate cannot be ascertained by reference to what the
> group has taken up in discussions at any point in time. Rather,
> the mandate has to be applied to proposed issues as stated in 1(b)
> above.
>
> If we all agreed on the scope dictated by the Charter, Final
> Proposal and Bylaw, this would be an easy exercise. However, we
> have never quite resolved this most basic question. Here is one
> proposed understanding of our mandate and scope, proposed by David
> McAuley back in December:
>
> [W]e have a mandate for a narrow approach. I say that because
> the source documents and the larger context in which we are
> operating, IMO, direct us there (although the source documents
> may not be as clear as one would like).
>
>
> The bylaw basically says look to the Final Report.
> On jurisdiction, Annex 12 of the Final Report says much by way
> of background, and its language regarding “layers of
> jurisdiction” is really just an acknowledgement. The operative
> paragraph, in my opinion, is paragraph 30 which begins, “At
> this point in the CCWG-Accountability’s work, ...” I think
> reference to “this point” is recognition that what came
> before, i.e., solidly grounding the accountability measures on
> California law, is an important precedent to our work, as it
> must be.
> Paragraph 30 also goes on to say, “Consideration of
> jurisdiction in Work Stream 2 will focus on the settlement of
> dispute jurisdiction …” The gap
>
>
>
> analysis and identifying potential alternatives are to take
> place in that context.
> And there is a larger context in which we operate, with two
> particular aspects that appear quite important.
> First, we just spent years and millions of dollars basing
> ICANN accountability on California law principles. Why would
> we throw that away? (It’s worth noting as well that California
> law has demonstrated over 18 years that it actually has
> allowed ICANN to operate without undo disruption.)
> And the second aspect is timing/capacity – we are WS2, not the
> UN. We can address gaps, if they are found, in
> dispute-resolution issues stemming from jurisdiction. We
> cannot grant ICANN immunity or enact a treaty, nor do we have
> the depth, experience, and time to come up with plausibly
> based recommendations in such regard.
> There are fair questions being raised that are appropriate for
> other forums – I personally think we, however, should focus on
> WS2 as constituted in Annex 12.
>
>
>
> If this can serve as a statement of our mandate, or at least the
> basis for such statement, that would help us move past this point.
> However, it's not up to me to make that judgment.
>
> What are people's thoughts or other formulations (based on the
> "foundational documents")?
>
> Greg
>
> On Mon, Jun 5, 2017 at 10:46 AM, Thiago Braz Jardim Oliveira
> <thiago.jardim at itamaraty.gov.br
> <mailto:thiago.jardim at itamaraty.gov.br>> wrote:
>
> Dear Greg,
>
> I'm not sure there is a need to come back to discussions we
> already had on the Subgroup's mandate (and in fact I saw no
> one else proposing this, at least not before you included it
> yourself as an item in our agenda).
>
> An illustration that there is no such a need is that we will
> be discussing substantive issues in our upcoming calls, which
> the Subgroup agreed to as it had no difficulty in seeing them
> as within our mandate: the impact of OFAC sanctions in ICANN's
> operations, for example, and the ability of US courts to
> interfere with the allocation of ccTLDs (upon a suggestion by
> Tatiana Tropina, which others and I seconded, and which
> encountered no objection from within the Subgroup as I
> understand).
>
> Jorge's proposed approach is very sensible, I believe is in
> line with what the Subgroup said it'd be doing in our upcoming
> calls, and I fully support it. Perhaps only where "there would
> be a question of in/out scope" "vis-à-vis a given case", as
> identified and supported by a reasonable portion of the
> Subgroup, should we come back to the mandate discussion for
> specific guidance. But again, the mandate is set out in the
> foundational documents and we all have had an opportunity to
> read them.
>
> Best,
>
> Thiago
>
>
>
> -----Mensagem original-----
> De: 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>] Em nome de
> ws2-jurisdiction-request at icann.org
> <mailto:ws2-jurisdiction-request at icann.org>
> Enviada em: segunda-feira, 5 de junho de 2017 09:00
> Para: ws2-jurisdiction at icann.org
> <mailto:ws2-jurisdiction at icann.org>
> Assunto: Ws2-jurisdiction Digest, Vol 12, Issue 3
>
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> Today's Topics:
>
> 1. Mandate and Scope of Jurisdiction Subgroup will be on
> Tuesday's Agenda (Greg Shatan)
> 2. Re: Mandate and Scope of Jurisdiction Subgroup will
> be on
> Tuesday's Agenda (Jorge.Cancio at bakom.admin.ch
> <mailto:Jorge.Cancio at bakom.admin.ch>)
> 3. Re: Mandate and Scope of Jurisdiction Subgroup will be on
> Tuesday's Agenda (Kavouss Arasteh)
>
>
> ----------------------------------------------------------------------
>
> Message: 1
> Date: Sun, 04 Jun 2017 21:39:25 +0000
> From: Greg Shatan <gregshatanipc at gmail.com
> <mailto:gregshatanipc at gmail.com>>
> To: ws2-jurisdiction <ws2-jurisdiction at icann.org
> <mailto:ws2-jurisdiction at icann.org>>
> Subject: [Ws2-jurisdiction] Mandate and Scope of Jurisdiction
> Subgroup
> will be on Tuesday's Agenda
> Message-ID:
>
> <CA+aOHUSKwbzuxXL-F1riN4j8SVjZhVWUsDmEYBLrYaAVKHtqKA at mail.gmail.com
> <mailto:CA%2BaOHUSKwbzuxXL-F1riN4j8SVjZhVWUsDmEYBLrYaAVKHtqKA at mail.gmail.com>>
> Content-Type: text/plain; charset="utf-8"
>
> All,
>
> I wanted to provide advance notice that we will pick up the
> discussion of the Subgroup's Mandate and Scope on Tuesday's
> call, with the goal of settling the issue over this call and
> the next. After all, we need to know what our mandate is in
> order to know if we ar fulfilling it. Some notes:
>
> 1. It's not up to the Subgroup to define the Subgroup's
> mandate and Scope.
> This has been done in the foundational documents -- Charter.
> WS 1 Report and Transition Bylaw. What we need to do is
> clarify our understanding of that mandate and Scope.
>
> 2. As such, the foundational documents need to form both the
> basis and the boundary of any such clarification or proposal
> for clarification. These documents were excerpted in my "straw
> man" mandate document sent around in the last few weeks.
>
> 3. Mandate and Scope (defined in these documents) need to be
> distinguished from potential issues participants might raise.
> Such issues, by and large, are not mentioned in the
> foundational documents.
>
> 4. The Mandate and Scope will be used to determine if any
> potential issue is "in scope".
>
> 5. Discussions of the issue on the list in advance of the call
> will be most helpful, since the call is only an hour.
>
> 6. While some have said we have gone in circles on this issue,
> or avoided resolving it. The goal here and now is to avoid
> that fate, whatever the outcome might be.
>
> Finally, I request broad participation on this issue, even if
> you have given up on this subject of discussion.
>
> Thank you.
>
> Greg
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> ------------------------------
>
> Message: 2
> Date: Mon, 5 Jun 2017 06:41:06 +0000
> From: <Jorge.Cancio at bakom.admin.ch
> <mailto:Jorge.Cancio at bakom.admin.ch>>
> To: <ws2-jurisdiction at icann.org
> <mailto:ws2-jurisdiction at icann.org>>, <gregshatanipc at gmail.com
> <mailto:gregshatanipc at gmail.com>>
> Subject: Re: [Ws2-jurisdiction] Mandate and Scope of Jurisdiction
> Subgroup will be on Tuesday's Agenda
> Message-ID:
>
> <AB0B03BAA04C59408DBA5398AFB3B5200D29C434 at SB00108A.adb.intra.admin.ch
> <mailto:AB0B03BAA04C59408DBA5398AFB3B5200D29C434 at SB00108A.adb.intra.admin.ch>>
> Content-Type: text/plain; charset="us-ascii"
>
> Dear Greg,
>
> I have a calendar invite for Thursday (not Tuesday).
>
> In any case, either Tuesday or Thursday I need to apologize
> because I'll be tied in meetings in Tallinn (Eurodig and EU).
>
> As to the mandate and scope: please note my position that we
> need to stick to the mandate given to the CCWG ws2 by the
> chartering organizations.
>
> The decision whether something is in or out of scope should be
> based on that mandate, should be considered in light of the
> specific facts of the case, and should be decided prima facie
> by the CCWG plenary...
>
> The Subgroup may reach ex-post i.e. case by case its own
> understanding v-a-v a given case where there would be a
> question of in/out scope, but I don't think we should lose
> time on developing an ex-ante position of the Subgroup in
> general terms.
>
> kind regards
>
> Jorge
>
>
>
>
> ________________________________
>
> Von: Greg Shatan <gregshatanipc at gmail.com
> <mailto:gregshatanipc at gmail.com>>
> Datum: 4. Juni 2017 um 23:40:05 MESZ
> An: ws2-jurisdiction <ws2-jurisdiction at icann.org
> <mailto:ws2-jurisdiction at icann.org>>
> Betreff: [Ws2-jurisdiction] Mandate and Scope of Jurisdiction
> Subgroup will be on Tuesday's Agenda
>
> All,
>
> I wanted to provide advance notice that we will pick up the
> discussion of the Subgroup's Mandate and Scope on Tuesday's
> call, with the goal of settling the issue over this call and
> the next. After all, we need to know what our mandate is in
> order to know if we ar fulfilling it. Some notes:
>
> 1. It's not up to the Subgroup to define the Subgroup's
> mandate and Scope. This has been done in the foundational
> documents -- Charter. WS 1 Report and Transition Bylaw. What
> we need to do is clarify our understanding of that mandate and
> Scope.
>
> 2. As such, the foundational documents need to form both the
> basis and the boundary of any such clarification or proposal
> for clarification. These documents were excerpted in my "straw
> man" mandate document sent around in the last few weeks.
>
> 3. Mandate and Scope (defined in these documents) need to be
> distinguished from potential issues participants might raise.
> Such issues, by and large, are not mentioned in the
> foundational documents.
>
> 4. The Mandate and Scope will be used to determine if any
> potential issue is "in scope".
>
> 5. Discussions of the issue on the list in advance of the call
> will be most helpful, since the call is only an hour.
>
> 6. While some have said we have gone in circles on this issue,
> or avoided resolving it. The goal here and now is to avoid
> that fate, whatever the outcome might be.
>
> Finally, I request broad participation on this issue, even if
> you have given up on this subject of discussion.
>
> Thank you.
>
> Greg
>
>
> ------------------------------
>
> Message: 3
> Date: Mon, 5 Jun 2017 12:46:45 +0200
> From: Kavouss Arasteh <kavouss.arasteh at gmail.com
> <mailto:kavouss.arasteh at gmail.com>>
> To: "<Jorge.Cancio at bakom.admin.ch
> <mailto:Jorge.Cancio at bakom.admin.ch>>"
> <Jorge.Cancio at bakom.admin.ch <mailto:Jorge.Cancio at bakom.admin.ch>>
> Cc: ws2-jurisdiction <ws2-jurisdiction at icann.org
> <mailto:ws2-jurisdiction at icann.org>>
> Subject: Re: [Ws2-jurisdiction] Mandate and Scope of Jurisdiction
> Subgroup will be on Tuesday's Agenda
> Message-ID:
>
> <CACNR4-K83Wk2CgdGLVXcgA9nQQzbCxi4G=50xzXbqU5fxLUWEg at mail.gmail.com
> <mailto:50xzXbqU5fxLUWEg at mail.gmail.com>>
> Content-Type: text/plain; charset="utf-8"
>
>
> Dear Greg,
> In the last call , you undertook to produce a document
> addressing OFAC.
> This fundamental and crucial .
> Pls kindly refrain to provide your personal views ; which has
> been always respected as the views of individual and not the
> rapporteur, I am not convinced with the views that you and one
> of CCWG members provided few months ago.
> ICANN must be away from any political motivation. Domain name
> is Natural and mankind resources and does not belong to any
> state and must be used neutrally, efficiently, effectively and
> economivcal without any discrimination and any political
> motivation.
> If that issue is not appropriately addressed we failed to
> fulfill our responsibility .
> Blocking or removing a domain name is not admitted under any
> circumstances.
> Regards
> Kavouss
>
> 2017-06-05 8:41 GMT+02:00 <Jorge.Cancio at bakom.admin.ch
> <mailto:Jorge.Cancio at bakom.admin.ch>>:
>
> > Dear Greg,
> >
> > I have a calendar invite for Thursday (not Tuesday).
> >
> > In any case, either Tuesday or Thursday I need to apologize
> because
> > I'll be tied in meetings in Tallinn (Eurodig and EU).
> >
> > As to the mandate and scope: please note my position that we
> need to
> > stick to the mandate given to the CCWG ws2 by the chartering
> organizations.
> >
> > The decision whether something is in or out of scope should
> be based
> > on that mandate, should be considered in light of the
> specific facts
> > of the case, and should be decided prima facie by the CCWG
> plenary...
> >
> > The Subgroup may reach ex-post i.e. case by case its own
> understanding
> > v-a-v a given case where there would be a question of in/out
> scope,
> > but I don't think we should lose time on developing an ex-ante
> > position of the Subgroup in general terms.
> >
> > kind regards
> >
> > Jorge
> >
> >
> >
> >
> > ________________________________
> >
> > Von: Greg Shatan <gregshatanipc at gmail.com
> <mailto:gregshatanipc at gmail.com>>
> > Datum: 4. Juni 2017 um 23:40:05 MESZ
> > An: ws2-jurisdiction <ws2-jurisdiction at icann.org
> <mailto:ws2-jurisdiction at icann.org>>
> > Betreff: [Ws2-jurisdiction] Mandate and Scope of
> Jurisdiction Subgroup
> > will be on Tuesday's Agenda
> >
>
> > All,
> >
> > I wanted to provide advance notice that we will pick up the
> discussion
> > of the Subgroup's Mandate and Scope on Tuesday's call, with
> the goal
> > of settling the issue over this call and the next. After
> all, we need
> > to know what our mandate is in order to know if we ar
> fulfilling it. Some notes:
> >
>
> > 1. It's not up to the Subgroup to define the Subgroup's
> mandate and Scope.
> > This has been done in the foundational documents -- Charter.
> WS 1
> > Report and Transition Bylaw. What we need to do is clarify our
> > understanding of that mandate and Scope.
> >
> > 2. As such, the foundational documents need to form both the
> basis and
> > the boundary of any such clarification or proposal for
> clarification.
> > These documents were excerpted in my "straw man" mandate
> document sent
> > around in the last few weeks.
> >
> > 3. Mandate and Scope (defined in these documents) need to be
> > distinguished from potential issues participants might
> raise. Such
> > issues, by and large, are not mentioned in the foundational
> documents.
> >
> > 4. The Mandate and Scope will be used to determine if any
> potential
> > issue is "in scope".
> >
> > 5. Discussions of the issue on the list in advance of the
> call will be
> > most helpful, since the call is only an hour.
> >
> > 6. While some have said we have gone in circles on this
> issue, or
> > avoided resolving it. The goal here and now is to avoid that
> fate,
> > whatever the outcome might be.
> >
> > Finally, I request broad participation on this issue, even
> if you have
> > given up on this subject of discussion.
> >
> > Thank you.
> >
> > Greg
> > _______________________________________________
> > Ws2-jurisdiction mailing list
> > Ws2-jurisdiction at icann.org <mailto:Ws2-jurisdiction at icann.org>
> > https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>
> >
>
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>
> --
> Raphaël Beauregard-Lacroix
> Sciences Po Law School 2014-2017
> LinkedIn
> <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/>
> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
>
>
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Matthew Shears
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+447712472987
Skype:mshears
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