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

avri doria avri at apc.org
Sat Jun 10 20:06:00 UTC 2017 

Hi,

Well that is the impression I have.  When I see responses to the various
positions I think I am seeing people talk past each other.

But I accept that you may not see me as a reasonable person.

avri


On 10-Jun-17 15:54, Paul Rosenzweig wrote:
> I don't think that after a year anyone can reasonably say that the minority position here has not been heard, understood and considered.  It just hasn't carried the day. 
>
> Paul
>
> Paul Rosenzweig
> paul.rosenzweig at redbranchconsulting.com
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>
> -----Original Message-----
> From: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of avri doria
> Sent: Saturday, June 10, 2017 2:06 PM
> To: ws2-jurisdiction at icann.org
> Subject: Re: [Ws2-jurisdiction] RES: Question Presented (Greg Shatan)
>
> Hi, 
>
> My concern is that the minority may be large enough to deny group consensus.  I am not sure there is overwhelming consensus, especially when you count those of us that are somewhere in the middle.
>
> Also in any form of ICANN or rough consensus, it is important that no minority feel its position has not been heard, understood and fully considered.
>
> Greg is appropriately trying to call consensus, and, I think also appropriately, those who feel they have not been heard, understood and considered feel we are not there yet.
>
> Reading the degree of misunderstanding there still seems to b eabout the various position of others, I tend to also agree we have not yet reached any sort of ICANN or rough consensus.
>
> avri
>
> On 10-Jun-17 11:34, Paul Rosenzweig wrote:
>> 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=0x9A830097CA06668
>> 4
>>
>> -----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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>> 			   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>
>> 			Cc: "acct-staff at icann.org" <acct-staff at icann.org>
>> 			Subject: [Ws2-jurisdiction] Question Presented
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