[Ws2-jurisdiction] REVISED DRAFT OF SUBGROUP REPORT

Wed Oct 11 16:39:18 UTC 2017

Parminder,

The recommendations on OFAC and Choice of Law and Choice of Venue are focussing present problems of the delicate questions on joint jurisdiction and immunities. It is a pragmatic way of moving in the right direction – no interference of States in ICANN’s core activities. It is a step-by-step approach doing what is possible. A general OFAC licence or regional choice of law clauses are important achievements; more may follow.

Best, Erich

Von: Raphaël BEAUREGARD-LACROIX<mailto:raphael.beauregardlacroix at sciencespo.fr>
Gesendet: Mittwoch, 11. Oktober 2017 17:56
An: parminder<mailto:parminder at itforchange.net>
Cc: ws2-jurisdiction<mailto:ws2-jurisdiction at icann.org>
Betreff: Re: [Ws2-jurisdiction] REVISED DRAFT OF SUBGROUP REPORT

Dear Parminder,

In my opinion there have been many discussions over that topic, although the outcome might not have been in your favour.

The "decision" to include these two only was taken to the extent that no other issues gathered enough speed and consensus in order to be formulated as recommendations on their own and be included in the report.

You did submit issues on topics you thought were most relevant, these were discussed, no consensus was reached, and because of that, I suppose, there were no further efforts by anyone (including you) in trying to turn them into a recommendation.

As to your question regarding RA and RAA, I invite you to look at the archives of the list and at the transcripts of the calls that we had over the previous weeks. You will find your answer there. Given the current time constraints (the report is to be submitted in about 8 hours,) I hope you understand it is difficult for anyone to provide you with a detailed summary of everyone's points over the matter. We received input over this from NSOs members among others, which made it clear that a CCWG WS2 subgroup *cannot* require ICANN to change the contracts it enters into with registries and registrars.

What you describe (and I feel, dismissively) as a "series of musings" is the result of a collective work to which, unfortunately, you chose not to participate. Maybe the result is not to your liking, but at this point, I can only regret that and invite you to be more active at the final stages next time.

It is unfortunate that you call anything "censorship" when this very email list is publicly archived. If you have any actual changes to propose, if you feel your views have not been duly represented, you can, like everyone else, make suggestions in the relevant documents.

Best,

Raphael

2017-10-11 15:22 GMT+02:00 parminder <parminder at itforchange.net<mailto:parminder at itforchange.net>>:

On Wednesday 11 October 2017 03:40 AM, Greg Shatan wrote:
All,

I have received no comments on the Draft Subgroup Report.

Greg, I was able to see it only just now and have the following quick comments before today's meeting. Will give more comments later on

At 2 places the report notes that the sub group got into discussing to topic of of "changing ICANN’s headquarters or jurisdiction of incorporation".

As I have previously mentioned on this list, I recall no real discussion at any time on actually "changing ICANN's headquarters or jurisdiction of incorporation". What did happen were repeated discussions on possibility of seeking immunity for ICANN under the US's International Organisations Immunity Act... Why dont we mention the actual discussion that took place in the group -- however inadequately, despite many members repeated requests for a proper discussion --  then put in what was hardly discussed?

Next, the report says that it chose to priortize the two issues of OFAC and choice of jurisdiction in contracts among many possible issues. I just want to be reminded which decision it refers to, and taken when. In any case, I disassociate myself from any such decision. But please do point me to the relevant decision of the sub group.

I am also not clear about

"The Subgroup understands that it cannot require ICANN to make amendments to the RA or the RAA " (said with regard to choice of jurisdiction recs)..... Why so? Sorry if this has already been discussed, but fell be grateful if the reason is explained to me.

I do also note that there is really no recommendation with regard to choice of jurisdiction issue but just a series of musings. This fact that no rec is being made in this regard should be very clearly stated.

So, finally the only substantial thing I understand the group to be saying is that it wants ICANN to be more specifically clear that it will try to seek OFAC licence for all otherwise legitimate cases, and that ICANN should explore (only explore) general OFAC licences -- which rec is also made with too much defensiveness.

And it wants to say nothing on jurisdictional immunity issue, in fact completely censor the issue out of the report, even in parts which just factually deal with discussions that happened in the group.

More later,

thanks, parminder

PS: Excuse me for the hurried comments, I am at some place right now where I am very constrained in time.

I have added a summary of the Choice of Law and Choice of Venue Recommendation to the Executive Summary, based on the current state of that Recommendation in the Google doc.

The Draft Report is attached in Word and PDF versions.  The Google doc is (still) at https://docs.google.com/document/d/135c03wFSIlz1Lqdv6Tte8sw7tMinsQEgy0CoNtRXT4Y/edit?usp=sharing

I will circulate that Recommendation next, in Word and PDF versions, as it now stands.

These documents will be discussed on tomorrow's call.  An agenda will be circulated shortly.

Greg

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