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

Thu Jun 22 13:58:26 UTC 2017

Dear All,
I fully support the argument submitted above,
Erich needs to kindly listen to others and realize that we MUST find
solutions for impact of maintaining Jurisdiction under California Law.
PEOPLE SHOULD NOT PUT OBSTACLE ,ONE AFTER THE OTHER, TO ADDRESS THE
CONSEQUENCE OF REMAINING IN CALIFORNIA AND ACCEPTING us Jurisdiction.
There are problems
OFAC is another headache that Erich does not recognize to be a difficulty
.We understand that but there are other nations seriously suffering from
OFAXC which was not designed to treat TLD.
Regards
Kavouss

2017-06-22 15:31 GMT+02:00 Thiago Braz Jardim Oliveira <
thiago.jardim at itamaraty.gov.br>:

> Dear Erich,
>
> Thank you. Let me add my voice to the points you rightly make.
>
> The rule of immunity, which need not be absolute, is correctly understood
> as a mechanism to make sure legal disputes are adjudicated by the most
> appropriate forum, which can be national courts, international panels or
> tribunals, arbitration, etc.
>
> Take the example of disputes involving the management of ccTLDs. It should
> not be open to the courts of any country other than the country responsible
> for a given ccTLD to adjudicate on matters relating to that ccTLD.
>
> This is what Tunis Agenda, paragraph 63, says: "Countries should not be
> involved in decisions regarding another country's country-code Top-Level
> Domain (ccTLD). Their legitimate interests, as expressed and defined by
> each country, in diverse ways, regarding decisions affecting their ccTLDs,
> need to be respected, upheld and addressed via a flexible and improved
> framework and mechanisms."
>
> And what is a mechanism through which the above principle can be uphold?
> Jurisdictional immunity, which enhances ICANN's accountably, as defined in
> the NETmundial multistakeholder statement. Accountability towards all
> stakeholders, Governments included, supposes mechanisms for redress that
> are independent and meet stakeholders expectations, one of which was
> embodied in paragraph 63 of the 2005 Tunis Agenda.
>
> Best,
>
> Thiago
>
>
>
> -----Mensagem original-----
> De: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-
> bounces at icann.org] Em nome de Schweighofer Erich
> Enviada em: quinta-feira, 22 de junho de 2017 06:12
> Para: Mike Rodenbaugh; Jorge.Cancio at bakom.admin.ch
> Cc: ws2-jurisdiction
> Assunto: Re: [Ws2-jurisdiction] RES: Agenda for Jurisdiction Subgroup
> Meeting 20 June at 19:00 UTC
>
> 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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