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

Wed Jun 21 20:02:54 UTC 2017

As one who fights ICANN in many legal matters, on behalf of clients from
all over the world, I cannot imagine why anyone would want ICANN to be
immune from lawsuits in California or anywhere else.  But, therefore, I am
in favor of substantive discussion to understand why anyone would think
that way, and to have a chance to refute such thinking with real-world
examples that have already happened or all still ongoing.

Thanks,
Mike

Mike Rodenbaugh
RODENBAUGH LAW
tel/fax:  +1.415.738.8087
http://rodenbaugh.com

On Tue, Jun 20, 2017 at 11:49 PM, <Jorge.Cancio at bakom.admin.ch> wrote:

> Dear all,
>
>
>
> I would also like to associate myself with the wise words of Ambassador
> Fonseca.
>
>
>
> Kind regards
>
>
>
> Jorge
>
>
>
> *Von:* ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-
> bounces at icann.org] *Im Auftrag von *Arasteh
> *Gesendet:* Dienstag, 20. Juni 2017 23:47
> *An:* Benedicto Fonseca Filho <benedicto.fonseca at itamaraty.gov.br>
> *Cc:* ws2-jurisdiction <ws2-jurisdiction at icann.org>
> *Betreff:* Re: [Ws2-jurisdiction] RES: Agenda for Jurisdiction Subgroup
> Meeting 20 June at 19:00 UTC
>
>
>
> Dear All
>
> I wholeheartedly support every item , word expressed by Benedicto
>
> Regards
>
> Kavouss
>
> Sent from my iPhone
>
>
> On 20 Jun 2017, at 13:20, 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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