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

Wed Sep 27 18:42:46 UTC 2017

Jorge,

Thank you.  I share your sentiments completely.  I'm sorry that you will
miss the call.  I will make sure that your suggestions are well considered,
even in your absence.

Best regards,

Greg

On Wed, Sep 27, 2017 at 2:21 PM, <Jorge.Cancio at bakom.admin.ch> wrote:

> Dear Greg,
>
> I’m very happy that we may lay these unfortunate disagreements to a rest
> and I look forward to a continued good cooperation with you on these
> important issues.
>
> Kind regards
>
> Jorge
>
>
>
> Ps: only sorry to miss the call – but I’m still travelling back home from
> a UN meeting…
>
>
>
> *Von:* Greg Shatan [mailto:gregshatanipc at gmail.com]
> *Gesendet:* Mittwoch, 27. September 2017 20:17
>
> *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,
>
>
>
> 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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