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

Sat Jun 10 15:34:05 UTC 2017

Greg

There was an overwhelming consensus for your approach both on the call and
in the subsequent discussions on the list where your ideas (or my somewhat
modified version) garnered significant support.  It is time, and past time,
for this group to put this issue to bed. 

I can understand why those whose opinions have not carried the day would
prefer to not resolve the issue, but if we cannot move forward at this
juncture with a wide consensus in the group (albeit with minority objection
from the representatives of several governments) then we should just close
the group out altogether.

Paul

PS -- You do not need to elaborate on your handling of this contentious
group, which has been quite patient.

Paul Rosenzweig
paul.rosenzweig at redbranchconsulting.com
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com
My PGP Key:
https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684

-----Original Message-----
From: ws2-jurisdiction-bounces at icann.org
[mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of Thiago Braz Jardim
Oliveira
Sent: Friday, June 9, 2017 6:47 PM
To: ws2-jurisdiction <ws2-jurisdiction at icann.org>
Subject: [Ws2-jurisdiction] RES: Question Presented (Greg Shatan)

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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			Today's Topics:

			   1. Question Presented (Greg Shatan)

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			Message: 1
			Date: Thu, 8 Jun 2017 09:28:50 -0400
			From: Greg Shatan <gregshatanipc at gmail.com>
			To: ws2-jurisdiction <ws2-jurisdiction at icann.org>
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