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

Thu Jun 22 09:12:18 UTC 2017

Good argument but please think differently.
Immunity of States and international entities nowadays should not and is be seen that much in the traditional sense – full immunity from legal actions - but more determining the appropriate legal forum (e.g. questions juri imperii should be handled by the courts of the concerned State, with known exceptions). Immunity of International Organisations is much too broad and internal controls are not always working well.
For ICANN, it is the question which is the most appropriate forum to fight against Board decisions concerning IANA competences and if the present redress procedures are sufficient. In my view, it does not make much sense that such decisions could be challenged in every court worldwide.
Best, Erich Schweighofer

Von: Mike Rodenbaugh<mailto:mike at rodenbaugh.com>
Gesendet: Mittwoch, 21. Juni 2017 22:02
An: Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch>
Cc: ws2-jurisdiction<mailto:ws2-jurisdiction at icann.org>
Betreff: Re: [Ws2-jurisdiction] RES: Agenda for Jurisdiction Subgroup Meeting 20 June at 19:00 UTC

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<mailto: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> [mailto: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<mailto:benedicto.fonseca at itamaraty.gov.br>>
Cc: ws2-jurisdiction <ws2-jurisdiction at icann.org<mailto: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<mailto: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<tel:+55%2061%202030-9164>/9165

________________________________
De: ws2-jurisdiction-bounces at icann.org<mailto:ws2-jurisdiction-bounces at icann.org> [ws2-jurisdiction-bounces at icann.org<mailto:ws2-jurisdiction-bounces at icann.org>] em nome de Greg Shatan [gregshatanipc at gmail.com<mailto: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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