[Ws2-jurisdiction] Updated "Applicable Law and Choice of Venue Provisions" Recommendation

Wed Sep 27 15:57:54 UTC 2017

Jorge,

I unfortunately haven't had more than a cursory reading of your proposed
changes. I should certainly have done so before in order to give you proper
feedback, but since my last inputs from last week I haven't had enough time
to give them a proper read. As such, as of now, I cannot really state my
position on the whole matter (and I am unfortunately not in circumstances
where I can spare enough time before the call to do so.) Rest assured that
I will go over your edits tomorrow.

Best,

On 27 Sep 2017 17:47, <Jorge.Cancio at bakom.admin.ch> wrote:

Dear Greg,

I feel we have different views of what the rapporteur role is. The facts
are that there was an open document, where all Subgroup members could
suggest edits. Raphaël and I did so. I saw Raphaëls text and he saw mine –
and did not object to the way I saw things. Nobody else did comment or
object to my suggested wording. Moreover, the “menu” approach had been
supported on list, with different nuances, on list by various other
subgroup participants.

You made changes, taking a specific view not supported by anyone else in
the document comments, and after making those changes you immediately sent
out the text with your revised text – hence not giving any chance to react
to your “reverting” or “putting back”.

I find that irregular and improper to the role of the Rapporteur. And it is
quite puzzling that you pretend that with my “suggestions” I was closing
any debate – I was just proposing wording, which as I said was not objected
nor commented by anyone during more than one week.

Btw: I have never taken out the Californian option – I presented it as a
potential outcome of the overall Menu approach. See attached the word
document I saved in my PC after making my suggestions to the Google Doc on
September 19.

Best

Jorge

*Von:* Greg Shatan [mailto:gregshatanipc at gmail.com]
*Gesendet:* Mittwoch, 27. September 2017 17:36

*An:* Cancio Jorge BAKOM <Jorge.Cancio at bakom.admin.ch>
*Cc:* ws2-jurisdiction <ws2-jurisdiction at icann.org>
*Betreff:* Re: [Ws2-jurisdiction] Updated "Applicable Law and Choice of
Venue Provisions" Recommendation

Jorge,

These changes were made in my role as rapporteur.  A key aspect of the
rapporteur role is helping the group find outcomes the group broadly
supports.  Part of this is avoiding a push to define "common ground"
prematurely.  In my view as rapporteur, the group is not yet at the point
where a "common ground" can be declared, and other options eliminated.  You
will see that today's agenda includes a discussion of the various options.

I am as eager as you are to find common ground, and I thank you for
offering your assistance in identifying what you believe to be common
ground.  However, I believe that it's premature to identify a result at
this time.  Thus, I edited the text to keep our options open.  (I don't
believe it's accurate to say I "reverted" the text, since all your
suggestions are still in the document, and only a few changes were made by
me, to reflect where we stand in our process.)  This in no way prevents the
group from considering whether the "Menu" option is one where the Subgroup
can find common ground.  It merely reflects that we have not already done
so.

I'm a little puzzled also by your statement that I am "intervening in an
open discussion within the group taking very specific positions, instead of
letting the debate go forward and helping it reaching consensus when
needed." The changes I made were to back the document away from the very
specific positions you inserted, in order to keep the debate and discussion
open.  I'm sorry that was not clear to you.

In the end, this text needs to be revised to identify a result and a
recommendation, unless there is a divergence of opinion (and thus no common
ground, although this itself would be a "result").  We can also discuss
whether to identify the options we did not adopt and the reasons for doing
so, or to take your approach and eliminate them from the document (as you
did with the "California" option).  I hope we can move through this
rapidly, while avoiding hasty conclusions, and arrive at a document that
reflects a finding of common ground in the group.

I hope this clarifies matters.

Best regards,

Greg

On Wed, Sep 27, 2017 at 1:49 AM, <Jorge.Cancio at bakom.admin.ch> wrote:

Dear Greg,

In the pdf this is not clear.

Are these changes made in your capacity as rapporteur? or are they personal
contributions?

I guess they are the latter. In such case this should be made clear in
order to avoid any misunderstandings.

I note for the record that I find troublesome that (without making that
clear) you are once again intervening in an open discussion within the
group taking very specific positions, instead of letting the debate go
forward and helping it reaching consensus when needed.

I cannot speak for Raphaêl of course, bit I wonder why you "revert" to his
initial text, which I had suggested to amend aiming at a "common ground" I
saw emerging, when Raphaël himself had not done so or had not objected to
my suggestions.

Hence, I would like to see the document distributed without your changes or
if you insist to circulate the version you have changed that you clearly
identify your edits as your personal opinion.

best

Jorge

________________________________

Von: Greg Shatan <gregshatanipc at gmail.com>
Datum: 27. September 2017 um 07:40:41 MESZ
An: Cancio Jorge BAKOM <Jorge.Cancio at bakom.admin.ch>
Cc: ws2-jurisdiction <ws2-jurisdiction at icann.org>
Betreff: Re: [Ws2-jurisdiction] Updated "Applicable Law and Choice of Venue
Provisions" Recommendation

Jorge,

Yes.  This is reflected in the Google Doc, and if you mouse over the
changes in Word.

Greg

On Wed, Sep 27, 2017 at 1:39 AM, <Jorge.Cancio at bakom.admin.ch<mailto:
Jorge.Cancio at bakom.admin.ch>> wrote:
Dear Greg,

The changes in "red ink" are from you?

Thanks for clarifying.

regards

Jorge

________________________________

Von: Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>>
Datum: 27. September 2017 um 07:33:38 MESZ
An: ws2-jurisdiction <ws2-jurisdiction at icann.org<mailto:
ws2-jurisdiction at icann.org>>

Betreff: [Ws2-jurisdiction] Updated "Applicable Law and Choice of Venue
Provisions" Recommendation

All,

Attached is an updated version of this recommendation in Word and PDF
formats, found at https://docs.google.com/document/d/
1xAyla8FTaL7jZ0D2rYtAzQUr3gEnirTKiAG-kqD0ZSs/edit?usp=sharing (please make
all changes in SUGGEST mode).

Please review and be prepared to discuss.

Thank you.

Greg

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