[Ws2-jurisdiction] RES: REVISED DRAFT OF SUBGROUP REPORT

Wed Oct 11 19:14:15 UTC 2017

Further to my e-mail below,

I would also like to reiterate the views that I've expressed many times in this subgroup, and that is that Brazil will have to dissociate itself from any report this subgroup provides if it does not properly recommend solutions to ICANN's subjection to US jurisdiction, in particular to the unsatisfactory situation where US authorities can possibly interfere with the activities ICANN performs in the global public interest.

Thiago

-----Mensagem original-----
De: Thiago Braz Jardim Oliveira 
Enviada em: quarta-feira, 11 de outubro de 2017 15:50
Para: 'parminder'; ws2-jurisdiction at icann.org
Assunto: RES: [Ws2-jurisdiction] REVISED DRAFT OF SUBGROUP REPORT

Dear Parminder,
Dear All,

Thank you for your email. I welcome your indication that you, and possibly others, may submit a dissenting opinion, which must be attached to the group's report.

This is in accordance with the Charter of WS2, which states in the relevant part that: "In the absence of Full Consensus, the Chair(s) should allow for the submission of minority viewpoint(s) and these, along with the consensus view, shall be included in the report."

Best regards,

Thiago

-----Mensagem original-----
De: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounces at icann.org] Em nome de parminder Enviada em: quarta-feira, 11 de outubro de 2017 15:27
Para: ws2-jurisdiction at icann.org
Assunto: Re: [Ws2-jurisdiction] REVISED DRAFT OF SUBGROUP REPORT

Since there is no response on how and when was it decided to chose only OFAC and choice of venue as the issues to give recs on, and how the issue of possible immunity from US jurisdiction excluded from this exercise, i want to put it on record before today's meeting (which I will not be able to attend) that I, and perhaps others, would like to put up a draft rec on the immunity issue for the group.... It is up to the group to accept it or not.... If it is unable to reach consensus it is possible that I, and perhaps others, may want to put it as a dissenting view, that will be requested to be attached to the group's report. Please let me know the process and time line for submitting (1) draft rec on customised immunity for ICANN, (2) in case there is no consensus on it. to give a dissenting view. 

Also, I disagree with the manner that the current report does a very partial job of the mandate given to it, cherry picking one or two aspects of the mandate and ignoring other, without a due and clear process. I also disagree with the manner in which its narrative glosses over the major discussions ans dynamics in the sub group, especially around the issue of US gov's jurisdiction and possibilities of seeking customised immunity under the US IOI Act..... It is most astounding how the report manages to completely avoid even a mention of the immunity issue which was hotly argued and discussed by the sub group, and on which so many members had such strong views. 

It can hardly be said that there is a consensus on the group's outputs as mentioned in the draft report...

parminder 

On Wednesday 11 October 2017 06:52 PM, parminder wrote:

	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 MailScanner has detected definite fraud in the website at "docs.google.com". Do not trust this website: https://docs.google.com/document/d/135c03wFSIlz1Lqdv6Tte8sw7tMinsQEgy0CoNtRXT4Y/edit?usp=sharing <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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