[Ws2-jurisdiction] Agenda for Jurisdiction Subgroup Meeting 20 June at 19:00 UTC

[Greg Shatan]

Benedicto,

Thank you for your email.  I think your first question is best answered by
the Co-Chairs, and I have copied them on this email.  As previously noted,
this matter is on the Agenda of the CCWG-Plenary F2F in Johannesburg, and
will be discussed there.  In the same vein, I encourage you to raise your
suggestion regarding immunity in the Plenary, as that is where the matter
lies at this point.   (I will note that we have had quite extended
explorations of various immunity concepts on the mailing list of this group
over the last several months.)

Let me clarify for all: Since this matter rests with the Plenary now and
not with the Subgroup, there will not be an extended discussion of the
matter on today's call.  The "Decision" section of the agenda is intended
to be a report from the last week, for the sake of information and
continuity.  This call will focus on the the proposed issues list,
questionnaire responses, and the litigation review.

Best regards,

Greg



On Tue, Jun 20, 2017 at 1:20 PM, Benedicto Fonseca Filho <
benedicto.fonseca at itamaraty.gov.br> wrote:

> Dear all,
>
>
> I would like to refer to item 4.1 ("Decision") of the agenda for today´s
> meeting (#36).
>
> First of all, in regard to *procedural aspects*, may I request a
> clarification. Does the precedent used in WS1 in regard to "narrowing
> alternatives" refer to decisions emanating from discussions of the Group as
> a whole ("bottom-up") or made by the Co-Chairs ("top-down")?  On the other
> hand, considering the different characteristics of the work pursued in both
> Work streams (focus on one single topic in WS1 vs. different streams of
> work in dedicated Subgroups in WS2), it would be disturbing, in any case
> (and a bad precedent, I must say) that the CCWG co-chairs would seek to so
> heavily interfere with the work of any Subgroup. In other words, do the
> Co-chairs have the right to substitute their views for the views of the
> Subgroup in the absence of a clear consensus within the Subgroup itself and
> also in the absence of a decision by the CCWG-plenary in support of that
> interference?
>
> Secondly, in *substance*, I would not see a problem, for the sake of
> moving ahead discussions in the Subgroup, to accept the assumption that the
> Group should take California legislation as a baseline for its subsequent
> work (I think it might be too early to speak about actual recommendations
> at the present stage) and work on solutions founded on this. We can also
> concur that, in that light, the Subgroup should not pursue recommendations
> to change ICANN´s jurisdiction of incorporation or headquarters location.
>
> We do not concur, however, that the Group should be impeded to explore, on
> the other hand, possibilities regarding immunity of ICANN, on the basis of
> the presumption that "…. there is no possibility of consensus for an
> immunity-based concept…". We consider the link between the two notions is
> flawed for three main reasons: (i)  as it has been stated before by
> Brazil and others, it is not correct to assume that no form of immunity
> from domestic jurisdiction is possible for ICANN in case it remains an
> organisation incorporated in California, as immunity arrangements are
> possible under different forms (e.g the ICRC, which has domestic and
> international law immunities, even though it remains a private organisation
> governed by Swiss law). Therefore, even if we were to assume that ICANN
> will not change places, or that it will remain incorporated in California,
> this assumption does not rule out the immunity solution, which can be
> limited immunity rather than absolute immunity, and which can take the
> form, for example, of immunity from adjudication in domestic courts rather
> than immunity from the local laws; (ii)  within the Subgroup itself, there
> is certainly no consensus that this avenue is entirely out of question and
> should be further discussed, including with the resort to proper
> independent legal advice;  (iii) in our view, the degree of support of any
> such idea (which were never duly explored) could only be assessed at the
> end of the exercise and not lead to and early conclusion that "there is no
> possibility of consensus".
>
> I therefore call for removal of the restriction on the group exploring
> possibilities related to immunity. In our view – and without prejudice to
> concerns previously expressed in regard to procedural aspects -, retaining
> the rest of the proposed language by the Co-chairs can be acceptable in the
> present circumstances as providing a way forward but this should not impede
> the Group to explore a possibility deemed by some members (among which, may
> I say, the majority of government representantives) to be crucial. Needless
> to say that any recommendation in that sense should not undermine other
> representatives positions and interests. We are convinced this would be
> indeed possible but to get there we need to pursue substantive discussions,
> benefitting of the narrower focus proposed by the Co-Chairs in regard to
> ICANN´s jurisdiction of incorporation and headquarters.
>
> May I conclude by recalling that the Subgroup had previously agreed to (i)
> identify issues before it goes on to explore remedies; (ii) look at
> proposed remedies; (iii) not to discuss a remedy until an issue has been
> identified that requires discussion of that remedy. The co-Chair´s
> "Decision" inverts that logic by establishing an ex-ante position in
> abstract. We agree that in the present circumstances to continue
> discussion changes of ICANN´s jurisdiction of incorporation and
> headquarters might not be helpuful but a different thing would be to rule
> out discussion on alternatives that might lead to a satisfactory set of
> rules from the perspective of many governments while being acceptable to
> others. That approach would be detrimental to the whole process as it might
> alienate many participants from discussion, including, possibly, the
> Brazilian government.
>
> In my view, independently of the outcomes of this afternoon´s call, the
> whole subject should be discussed at the CCWG plenary F2F meeting next
> Sunday.
>
>
>
> Best regards,
>
>
> Benedicto
>
>
>
> *Benedicto Fonseca Filho*
> *Director, Department of Scientific and Technological Themes*
> *Ministry of External Relations*
> *BRAZIL*
> *Phone: (+5561) 2030-9164 <+55%2061%202030-9164>/9165*
>
> ------------------------------
> *De:* ws2-jurisdiction-bounces at icann.org [ws2-jurisdiction-bounces@
> icann.org] em nome de Greg Shatan [gregshatanipc at gmail.com]
> *Enviado:* terça-feira, 20 de junho de 2017 3:06
> *Para:* ws2-jurisdiction
> *Assunto:* [Ws2-jurisdiction] Agenda for Jurisdiction Subgroup Meeting 20
> June at 19:00 UTC
>
> All,
>
> The agenda for the upcoming meeting is attached.  Materials other than
> Google Drive documents are also attached.  Google drive documents will be
> downloaded and circulated nearer to the meeting.
>
> I particularly encourage members to contribute to the newly-created
> Proposed Issues List:
>
> https://docs.google.com/spreadsheets/d/1zAMj3Oz8TEqbjauOyqt09Ef-
> 1ada9TrC7i60Mk-7al4/edit?usp=sharing.
>
> It's important that we collect proposed issues that have already been
> brought up in various documents and put them in one place.
>
> I look forward to our upcoming meeting.
>
> Greg
>
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