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

Wed Sep 27 18:16:57 UTC 2017

Jorge,

Thank you for your clarifications.  I now see better how the various
options related to each other in your suggestions, i.e., that there are a
multiplicity of outcomes based on a fairly comprehensive and flexible
"menu."

It may be that others have viewed the "Menu" as shorter, e.g., choose from
one of the following jurisdictions as the governing law for the entire
agreement.  But the Subgroup can work that out on the call.

I did not mean to imply that you have not been talking about substance
during the work of the Subgroup; indeed, you have been of our most
thoughtful and substantive participants.  I apologize if this was
misunderstood, or if the focus on the immediate discussion obscured the
value of your overall contributions. My edits were merely intended to keep
the discussion option; I'm sorry if they appeared to be otherwise.

In any event, I look forward to a thoughtful and fruitful discussion of
this Recommendation.  Thank you for your continuing contributions to the
work of the group.

Best regards,

Greg

On Wed, Sep 27, 2017 at 1:58 PM, <Jorge.Cancio at bakom.admin.ch> wrote:

> Dear Greg,
>
>
>
> As a matter of fact I have been contributing for months on the substance
> of this topic. I hope that you refrain in the future from making some last
> minute edits and/or that if you do it you clarify from the start that you
> are doing it with your participant hat on – and if you are doing it as
> Rapporteur you clearly explain your reasons properly.
>
>
>
> As to the substance, what I proposed in my suggestions of 19 September was
> a wording that based itself on what IMHO I was seeing as an emerging
> consensus (I think, Paul, Milton, Beckie and others had supported it), i.e.
> that according to the principle of effective choice registries and ICANN
> would start with an overall “menu approach” to applicable law – they would
> decide (together).
>
>
>
> Within that overall approach, the three initial options proposed by
> Raphaël would be possible outcomes – i.e. they would not be mutually
> exclusive: some registries (probably the “traditional” ones –if I may say
> so- and those with strong ties with the US) would exercise their option in
> leaving things as is (=”Californian option”), others would go for the
> “carve out” (as designated by Raphaël) and, finally, I mentioned that,
> given this freedom, there could be other possibilities.
>
>
>
> Hope this helps
>
>
>
> Jorge
>
>
>
>
>
> *Von:* Greg Shatan [mailto:gregshatanipc at gmail.com]
> *Gesendet:* Mittwoch, 27. September 2017 19:41
>
> *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,
>
>
>
> Let's stop talking about process.  It's only getting repetitive.  I will
> say I do not believe I am driving the debate in any specific direction;
> frankly, I do not even see a basis for saying that.
>
>
>
> I have noted that there has been some open and fruitful discussion of the
> Menu approach on the list.  As I've indicated several times now, it is my
> view as rapporteur that the group has not settled on that as "common
> ground."
>
>
>
> We've clearly had a lack of attention to this document, due to continuing
> focus on the OFAC Recommendations. As such, it is very much a work in
> progress and no outcomes are foreclosed.
>
>
>
> It is time now to determine where the common ground lies, if we have one.
> Honestly, I will be happy with any result.
>
>
>
> Finally, if you won't answer my questions on the substance of your
> suggestions as rapporteur, consider them re-asked in my personal role. I
> look forward to your reply.
>
>
>
> Best regards,
>
>
>
> Greg
>
>
>
> On Wed, Sep 27, 2017 at 1:28 PM, <Jorge.Cancio at bakom.admin.ch> wrote:
>
> Dear Greg,
>
> I feel my suggestions speak for themselves and I'm happy to explain to
> members of the group who might have concerns - fact is that no one had
> voiced such in more than a week and that it is only you interrogating on
> them. But it is not your role to drive the debate in one specific direction
> when it is open and ongoing.
>
> and again, 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.
>
> Fact is that immediately before circulating the doc you made your personal
> 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”.
>
> These actions would be considered as profoundly contrary to a Rapporteur
> neutrality in many other fore, where the Rapporteur has to remain neutral,
> not take sides and help bridge differences.
>
> best
>
> Jorge
>
> ________________________________
>
> Von: Greg Shatan <gregshatanipc at gmail.com>
> Datum: 27. September 2017 um 19:19:56 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,
>
> Once again, you puzzle me.  I believe that I am being both neutral and
> transparent (everything is happening on the list and in the documents, so I
> have no idea what is not "transparent").   Clearly, your draft changes were
> merely suggestions, and my discussion of it was in that context.  I'm sorry
> that was not apparent to you.
>
> Nonetheless, I'm sure it would help the Subgroup understand your
> suggestions if you would explain how your suggested text maintains the
> option of a fixed choice of California/US law.  The reasons that is not
> clear are in my prior email. I'm hoping that it is not difficult to answer,
> and will aid the group in considering your suggestions.
>
> Just to be clear, based on my understanding and experience with
> Chairs/rapporteurs, it is very much part of the role to ask follow-up
> questions to draw out details, eliminate ambiguity, and resolve potential
> areas of concern.  I'm sorry you believe that makes no sense.  Hopefully
> you will reconsider.
>
> In any event, I would appreciate your assisting the Subgroup by clarifying
> the ambiguities I have asked about.  Detailed discussions of process while
> not discussing substance will not get the Subgroup where it needs to go.
>
> Best regards,
>
> Greg
>
>
>
> On Wed, Sep 27, 2017 at 12:51 PM, <Jorge.Cancio at bakom.admin.ch<mailto:
> Jorge.Cancio at bakom.admin.ch>> wrote:
> Dear Greg,
>
> I feel that this questioning and interrogatory modus regarding my
> suggestions in an open and ongoing doc makes no sense.
>
> You said I had "eliminated" something - that is not only absurd (I was
> suggesting) but inaccurate (I suggested that a free standing option is a
> possible outcome).
>
> Please just refrain to making such interventions in an open and ongoing
> process. That is not the role of the Rapporteur. It is not neutral and
> lacks transparency.
>
> best
>
> Jorge
>
>
> ________________________________
>
> Von: Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>>
> Datum: 27. September 2017 um 18:38:03 MESZ
> An: Cancio Jorge BAKOM <Jorge.Cancio at bakom.admin.ch<mailto:
> Jorge.Cancio at bakom.admin.ch>>
> Cc: ws2-jurisdiction <ws2-jurisdiction at icann.org<mailto:
> ws2-jurisdiction at icann.org>>
> Betreff: Re: [Ws2-jurisdiction] Updated "Applicable Law and Choice of
> Venue Provisions" Recommendation
>
> Jorge,
>
> Perhaps I did not understand one thing about your draft.  You say that the
> "California" option is not foreclosed, and that it is a potential outcome
> of the Menu approach.
>
> As I understand it, the Menu approach allows each registry to choose (or
> perhaps, to negotiate for) one out of a defined list of jurisdictions
> (e.g., one from each ICANN Geographic Region).
>
> The "California" approach fixes California/US law as the sole choice of
> law for all registry agreements.
>
> I don't see how the California approach can be a possible outcome of the
> Menu approach.  Do you mean that it is technically possible that every
> registry will choose California law from the Menu as their individual
> outcome?  Even if that is the outcome (and the chances of that are
> vanishingly small), that is still an outcome and not the "California"
> option, which is distinguished by a fixed choice of law.
>
> Please help me and the Subgroup understand better.
>
> Thank you,
>
> Greg
>
> On Wed, Sep 27, 2017 at 11:47 AM, <Jorge.Cancio at bakom.admin.ch<mailto:
> Jorge.Cancio at bakom.admin.ch><mailto:Jorge.Cancio at bakom.admin.ch<mailto:
> 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<mailto:gregshatanipc@
> gmail.com><mailto:gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com
> >>]
> Gesendet: Mittwoch, 27. September 2017 17:36
>
> An: Cancio Jorge BAKOM <Jorge.Cancio at bakom.admin.ch<mailto:
> Jorge.Cancio at bakom.admin.ch><mailto:Jorge.Cancio at bakom.admin.ch<mailto:
> Jorge.Cancio at bakom.admin.ch>>>
> Cc: ws2-jurisdiction <ws2-jurisdiction at icann.org<mailto:
> ws2-jurisdiction at icann.org><mailto:ws2-jurisdiction at icann.org<mailto: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<mailto:
> Jorge.Cancio at bakom.admin.ch><mailto:Jorge.Cancio at bakom.admin.ch<mailto:
> 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<mailto:gregshatanipc at gmail.com
> ><mailto:gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>>>
> Datum: 27. September 2017 um 07:40:41 MESZ
> An: Cancio Jorge BAKOM <Jorge.Cancio at bakom.admin.ch<mailto:
> Jorge.Cancio at bakom.admin.ch><mailto:Jorge.Cancio at bakom.admin.ch<mailto:
> Jorge.Cancio at bakom.admin.ch>>>
> Cc: ws2-jurisdiction <ws2-jurisdiction at icann.org<mailto:
> ws2-jurisdiction at icann.org><mailto:ws2-jurisdiction at icann.org<mailto: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><mailto:Jorge.Cancio at bakom.admin.ch<mailto:
> Jorge.Cancio at bakom.admin.ch>><mailto:Jorge.Cancio at bakom.admin.ch<mailto:
> Jorge.Cancio at bakom.admin.ch><mailto:Jorge.Cancio at bakom.admin.ch<mailto:J
> orge.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
> ><mailto:gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>><mailto:
> gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com><mailto:gregshat
> anipc 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><mailto:ws2-jurisdiction at icann.org<mailto:ws2-
> jurisdiction at icann.org>><mailto:ws2-jurisdiction at icann.org<mailto:
> ws2-jurisdiction at icann.org><mailto: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 athttps://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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