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

Wed Sep 27 16:28:13 UTC 2017

I believe that we all agree that the discussion is ongoing and open,
nothing is foreclosed, and that all the suggestions currently in the
document are just that - suggestions.  I am happy to clarify that to the
list (indeed, I think I just have).  For the good of the process, I'm happy
to recirculate the documents with that clarification as well.

I hope that resolves matters, and we can get back to discussing the
substance, rather than the process.

Best regards,

Greg

On Wed, Sep 27, 2017 at 12:06 PM, <Jorge.Cancio at bakom.admin.ch> wrote:

> Dear Raphaël,
>
> Allow me just to clarify: what I meant is not that you agree with my
> suggestions, but that –according to the document data- you worked on the
> document on September 21 and 22 (after I had made my suggestions on Sept.
> 19 – the last day I worked on the doc), and that you did not object to my
> wording proposals – again: this is not in any way an agreement on your
> side. It just shows that the discussion was ongoing and open, and that no
> re-editing from the Rapporteur was warranted in my view.
>
> Kind regards
>
> Jorge
>
>
>
> *Von:* Raphaël BEAUREGARD-LACROIX [mailto:raphael.
> beauregardlacroix at sciencespo.fr]
> *Gesendet:* Mittwoch, 27. September 2017 17:58
> *An:* Cancio Jorge BAKOM <Jorge.Cancio at bakom.admin.ch>
> *Cc:* ws2-jurisdiction at icann.org; gregshatanipc at gmail.com
>
> *Betreff:* Re: [Ws2-jurisdiction] Updated "Applicable Law and Choice of
> Venue Provisions" Recommendation
>
>
>
> 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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