[Ws2-jurisdiction] RES: Question Presented (Greg Shatan)

Fri Jun 9 22:46:45 UTC 2017

Dear Greg,

It would have been best if you could have sent your question to the group prior to the call, and not only as the call was happening. People who were not present, and only saw the proposal in their mailing list afterwards, might perhaps be misled into thinking that the question you drafted came from the group, or that it reflected some degree of consensus within the group.

May I highlight, in that context, that you disregarded the suggestion to submit Jorge's proposal to the group for consideration. His proposal, which I and others seconded, was to have the group discuss the mandate in respect of concrete cases, and not develop an ex-ante position in abstract.

As to the question itself, my first observation is that we are not supposed to ask anything like this now. As reflected in our revised work plan of 24 April 2017, it was agreed that "the Subgroup will identify issues before it goes on to explore remedies"; "for each issue, the group will then look at proposed remedies"; "the group should not discuss a remedy until an issue has been identified that requires discussion of that remedy". The question you drafted goes in the opposite direction, as it concerns one imaginable remedy (change to ICANN's status or location), prior to having identified what are the issues to be discussed by the group.

My second remark is that your proposal makes a couple of assumptions that are not accurate nor necessary. For example, in the first bullet point, you assume that no form of immunity from domestic jurisdiction is possible for ICANN in case it remains an organisation incorporated in California. This is not true, as immunity arrangements are possible under different forms. Take the ICRC, which has domestic and international law immunities, even though it remains a private organisation governed by Swiss law.

My third remark is about the logical chain in the third bullet point. There is this suggestion that if we can't reach consensus on the mandate, then we would need to refer the question you drafted to the Plenary. Well, if there is no consensus on the mandate, then we should simply refer the mandate itself to the Plenary, not any question pre-empting hypothetical outcomes which could, by the way, only be reached in case the group engages in substantive discussions on the issues identified by the group and on the correspondent possible remedies..

Best regards,

Thiago

-----Mensagem original-----
De: Greg Shatan [mailto:gregshatanipc at gmail.com] 
Enviada em: sexta-feira, 9 de junho de 2017 01:47
Para: Kavouss Arasteh
Cc: Thiago Braz Jardim Oliveira; ws2-jurisdiction
Assunto: Re: [Ws2-jurisdiction] Question Presented (Greg Shatan)

Thiago, this slide was prepared prior to the call as a strawman to assist with the discussion.  As a result of the call, we now have a number of suggestions for changes or alternatives to the question, so we have moved beyond the strawman.  Of course, as you have noted, some version of this question has been discussed by the Subgroup before.

Kavouss, since we have moved beyond this formulation of the question, I'm not sure it's necessary to address whether the strawman question is biased or leads to a predetermined judgment (on the latter, since there are at least two opposing answers, I don't see how that can be the case).  However, if you have any observations you would like to share that would be helpful in revising the question or preparing an alternative to it, please do share your thoughts.  Thank you.

Greg

On Thu, Jun 8, 2017 at 5:08 PM, Kavouss Arasteh <kavouss.arasteh at gmail.com> wrote:

	Dear Greg,
	Dear All, It was not,
	The question is biased giving a prédétermine judgement
	I do not agree with this question.
	Regards
	Kavouss 

	2017-06-08 22:48 GMT+02:00 Kavouss Arasteh <kavouss.arasteh at gmail.com>:

		Dear All, It was not,
		The question is biased giving a prédétermine judgement
		I do not agree with this question.
		Regards

		Kavouss 

		2017-06-08 20:21 GMT+02:00 Thiago Braz Jardim Oliveira <thiago.jardim at itamaraty.gov.br <mailto:thiago.jardim at itamaraty.gov.br> >:

			Greg,

			Help me with this. Was this question you wanted to discuss at today's call presented to the group earlier than today or before today's call?

			Thanks,

			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: quinta-feira, 8 de junho de 2017 10:29
			Para: ws2-jurisdiction at icann.org
			Assunto: Ws2-jurisdiction Digest, Vol 12, Issue 18

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			Date: Thu, 8 Jun 2017 09:28:50 -0400
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