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<div class="moz-cite-prefix">On Monday 10 October 2016 10:28 AM,
Greg Shatan wrote:<br>
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cite="mid:CA+aOHUTHQcHbuVVptj21kQogmt-BW6dtZT9jOvwNcvZZqziZug@mail.gmail.com"
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<div class="gmail_default"
style="font-family:verdana,sans-serif">All,</div>
<div class="gmail_default"
style="font-family:verdana,sans-serif"><br>
</div>
<div class="gmail_default"
style="font-family:verdana,sans-serif">In order to move
forward, and based on the discussions so far, I suggest the
following approach.</div>
<div class="gmail_default"
style="font-family:verdana,sans-serif"><br>
</div>
<div class="gmail_default"
style="font-family:verdana,sans-serif">First, we should
continue the current approach of defining and refining the
various layers of jurisdiction, and I encourage you all to go
to the Google doc and add your views. <a
moz-do-not-send="true"
href="https://docs.google.com/document/d/1oE9xDIAJhr4Nx7vNO_mWotSXuUtTgJMRs6U92yTgOH4/edit?usp=sharing"
target="_blank">https://docs.google.com/<wbr>document/d/1oE9xDIAJhr4Nx7vNO_<wbr>mWotSXuUtTgJMRs6U92yTgOH4/<wbr>edit?usp=sharing</a></div>
<div class="gmail_default"
style="font-family:verdana,sans-serif"><br>
</div>
<div class="gmail_default"
style="font-family:verdana,sans-serif">Second, we won't
investigate changing ICANN's headquarters or incorporation
jurisdiction at this time. However, it's not off the table --
if we identify an issue during our work and we can't find a
less drastic way to deal with that issue, we will revisit this
point at that time. We can then revisit the concerns that
people have raised regarding such a recommendation in the
context of a particular issue.<br>
</div>
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<br>
While I can always insert this in the Google doc, I prefer to first
discuss this here. (And yes I am repeating it.) The jurisdiction
issue is best divided as (1) application of public law, (2)
application of private law, (3) the rest of sundry stuff - like
about different global offices and interaction with respective
domestic jurisdiction (these are of relatively minor significance,
and there may not be much to 'decide' about them in advance)<br>
<br>
Place of incorporation and location of HQ (which is almost always
the same) may be the proxy for 'application of public law' but they
do not necessarily conflate. US government by decree has given
jurisdictional immunities even to such bodies that are *not*
created under international law and simply registered as private
bodies, in the US or elsewhere. This certainly is an important
possibility to look into for ICANN, which insulates it from
application of US public law - in terms of its key organisational
activities -- without moving the headquarters or even jurisdiction
of incorporation. <br>
<br>
I will repeat the question I put to the chairs in my last email: "<font
face="Verdana">are we considering this issue of application of US
public law to ICANN, and the problems that it may cause with
respect to its policy processes, and being able to appropriately
carry out its global governance role? " <br>
<br>
The concerns around application of public law are very different
than those of application of private law -- and often different
actors have these two different kinds of concerns. Public law also
have application over private law cases. <br>
<br>
If this group does not intend to get into the 'application of
public law' question and stick to issues of private law, then let
it decide and state as much in clear terms. Such actors whose
interest in the jurisdiction question comes primarily from the
public law aspect can then disengage from spending further time in
this process - as for instance I will like to do. <br>
</font><br>
<blockquote
cite="mid:CA+aOHUTHQcHbuVVptj21kQogmt-BW6dtZT9jOvwNcvZZqziZug@mail.gmail.com"
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<div class="gmail_default"
style="font-family:verdana,sans-serif">Third, we should put
aside "confirming and assessing the gap analysis" for the
moment. There is still a diversity of views on what this "gap
analysis" was and what we need to do to confirm and assess
it. As a result, our time has been spent discussing the
parameters of the assignment, rather than working on the
assignment itself. I believe that we will be better able to
define the scope of this item and move to substance, if we
spend some time looking at the substance of an issue that is
clearly within our scope.</div>
<div class="gmail_default"
style="font-family:verdana,sans-serif"><br>
</div>
<div class="gmail_default"
style="font-family:verdana,sans-serif">After we finish
clarifying the multiple layers of jurisdiction, we should move
to an issue that is clearly within our scope -- something we
have to do. That way we can move to the substance of the
issue and not spend a lot of time on "scope."</div>
<div class="gmail_default"
style="font-family:verdana,sans-serif"><br>
</div>
<div class="gmail_default"><span
style="font-family:verdana,sans-serif">An issue that is
clearly within our scope relates to ICANN's jurisdictions
for settlement of disputes </span><span
style="font-family:verdana,sans-serif">(i.e., venue and
choice of law). <br>
</span></div>
</div>
</blockquote>
<br>
One way is to look at this is as concerning the application of
private law on iCANN matters. But then, like in the case of .xxx,
what if the dispute invokes a public law (US competition law in this
instance) -- which one can be assured that every disputant will do
as long as it can find a favourable US public law which seems to
side with the way the disputant wants things to go. As we explore
the issue of 'settlement of disputes' are we going to look only to
private law part and not public law? That IMHO would be quite
inappropriate. But then if we are going to look into both private
law and public law elements, the discussion gets messy because
private law can involve choice of jurisdiction but not public law.
This is why I think it is best if we divide our work and discussions
as I suggested above, separately about issues of public law and
those of private law. <br>
<br>
But, as I said before, issues of public law are simply out, let us
then be clear about it. I request a clarification by the chairs. <br>
<br>
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<div class="gmail_default"><span
style="font-family:verdana,sans-serif"> There should not be
any question that this is within the scope of our group
(Annex 12 refers to this as the "focus" for our group).
Based on Annex 12, this involves looking at: </span><span
style="font-family:verdana,sans-serif">"The influence that
ICANN’s existing jurisdiction" relating to resolution of
disputes "may have on the actual operation of policies </span></div>
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</blockquote>
<br>
Application of US public law on ICANN has enormous influence on
'actual operation of (ICANN) policies'. And so we are very much
within our mandate in discussing issues arising from 'public law'
aspect. <br>
<br>
<blockquote
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<div class="gmail_default"><span
style="font-family:verdana,sans-serif">and accountability
mechanisms." I suggest that we examine this "influence" and
determine what this "influence" is. Our work looking at
venue and choice of law in the "multiple layers of
jurisdiction" will help us in this task.</span></div>
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<br>
I gave a few instances in my last email of influence of US public
law on operation of ICANN policies. Would these examples qualify to
be considered under this or not?<br>
<br>
<blockquote
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type="cite">
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<div class="gmail_default"><span
style="font-family:verdana,sans-serif"><br>
</span></div>
<div class="gmail_default"><span
style="font-family:verdana,sans-serif">A note on process --
it is very important that we focus on creating written
material. In our calls, we should be working on and working
from these written materials. Ultimately, these writings
will feed into our deliverable. Put another way, you should
focus your contributions on adding to the drafts (currently,
the "layers of jurisdiction" document), rather than on
relying solely on oral interventions in our calls -- after
all we have 168 hours in a week, and only 1 hour for our
call.</span></div>
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<br>
I agree. Calls can only help confirm or resolve some outstanding
issues, and lay further directions. What we can accomplish in
writing we should do. In that regard, I also think that to th extent
issues can be addressed and resolved in email exchanges here they
best be done so...<br>
<br>
Thanks, parminder <br>
<br>
<blockquote
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<div class="gmail_default"><span
style="font-family:verdana,sans-serif"><br>
</span></div>
<div class="gmail_default"><span
style="font-family:verdana,sans-serif">I look forward to our
upcoming call.</span></div>
<div class="gmail_default"><span
style="font-family:verdana,sans-serif"><br>
Best regards,</span></div>
<div class="gmail_default"><span
style="font-family:verdana,sans-serif"><br>
</span></div>
<div class="gmail_default"><span
style="font-family:verdana,sans-serif">Greg </span></div>
</div>
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