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<p>Nigel, <br>
</p>
<p>if the issue was, as you claim, matters were settled and solved
since long, we would not have this discussion and examples like
Niue´s ccTLD .nu would not remain unsolved. <br>
<br>
Or?<br>
</p>
<p>I would rather say that the matter was buried. Perhaps momentary
wisely, in order to avoid some conflicts at the time.<br>
</p>
<p>But burying this fundamental issue has lead to inconsistency,
long drawn interpretations of the RFC1591 like the FOI that has to
be interpitaded in itself by the FOIWG e t c e t c.</p>
<p>It is not about destroying the multi stakeholder model as you
claim to fear (with almost apocalyptic scaremongering). I would
rather say the opposite - clarifying changes could rather improve
the multi-stakeholder model framework and ICANN´s legitimacy.</p>
<p>The world has changed and ICANN has matured and enlarged since
the early days when the RFC1591 was the fundament for everything.
What you seem to imply is that the only and perfect solution has
somehow been found. <br>
</p>
<p>Niue can hardly agree with you.<br>
</p>
<p>Now, I do not want to harm my message in this answer by using to
many references and quotes about how settled the jurisdiction
issues NOT are, but the latest attempt to start sorting things out
was the very time consuming ccNSO work with The FOI/FOIWG finished
in 2015.</p>
<p>The following statement is the GAC´s standpoint regarding the
full FOI/FOIWG is from ICANN52, Singapore, 2015.</p>
<p>From the GAC Communiqe, Singapore, 2015:<br>
</p>
<p>---<br>
</p>
<p>"4.<b> Framework of Interpretation Working Group (FOIWG) Report </b><br>
</p>
<p>The GAC notes the work of the ccNSO FOIWG, and its efforts to
provide interpretive clarity to
RFC1591. The GAC welcomes the FOIWG’s recognition that, consistent
with the GAC’s 2005
Principles, the ultimate authority on public policy issues
relating to ccTLDs is the relevant
government. As such, nothing in the FOIWG report should be read to
limit or constrain
applicable law and governmental decisions, or the IANA operator´s
ability to act in line with a
request made by the relevant government.".</p>
<p>---<br>
</p>
<p>Best Regards,</p>
<p>Pär</p>
<br>
<div class="moz-cite-prefix">On 2017-08-22 14:39, Nigel Roberts
wrote:<br>
</div>
<blockquote type="cite"
cite="mid:61ce2c67-b261-7423-80e6-b45742d1e818@channelisles.net">Kavouss,
Thiago, all
<br>
<br>
As is clear from the ratio in the Weinstein case, it has not been
ruled that the US courts will exercise /in rem/ jurisdiction over
ccTLDs. (the question is open -- in rem certainly applies to
second level gtld domains, and ccTLD domains registered with a US
registrar).
<br>
<br>
<br>
What IS clear, from history, is that ICANN has, in the past, acted
in a way that in my country would be defined as 'blackmail'.
<br>
<br>
Viz: refusing to make IANA changes unless and until a particular
country agreed to sign a contract on ICANN's terms over its ccTLD.
<br>
<br>
Others related to that specific ccTLD can confirm their
recollection and may do so.
<br>
<br>
Whilst you appear to be agreeing with me on the point of
subsidiarity, it is clear to me that providing ICANN-PTI with
blankey immunity from all actions it could take, would allow it to
return to that behaviour, with impunity.
<br>
<br>
So in fact, ccTLDs would LOSE the subsidiarity they currently
enjoy.
<br>
<br>
I fully understand the concerns regarding OFAC etc. But that's a
reason for ICANN to work with the General Licencing regime to
mollify those concerned. It's not a reason to give IANA the
freedom to do whatever it likes without the Rule of Law applying.
<br>
<br>
There is no intrinsic problem that needs solving with the ccTLD
system.
<br>
<br>
That system has has been carefully and cooperatively reviewed by
ICANN staff, cctLD managers and GAC members over a 7 years period
resulting the policy framework we have know.
<br>
<br>
<br>
One concern IS certainly the potential effects of OFAC.
<br>
<br>
This does need to be explored further and the consideration of the
meaning "prohibited transaction" (I don't think ICANN carries out
any) and if it does, the obtaining of a general licence.
<br>
<br>
But this is no reason to tear up the policy work we've done in the
ccTLD community over, literally decades, to arrive at the workable
system we have today, over the disaster that was ICANN in 2001-2.
<br>
<br>
And isn't this WG about jurisdiction, anyway?
<br>
<br>
<br>
<br>
On 22/08/17 11:50, CISAS wrote:
<br>
> Dear Mr Roberts,
<br>
>
<br>
>
<br>
>
<br>
> Thank you for your email.
<br>
>
<br>
>
<br>
>
<br>
> Please be advised that email addresses that are not commonly
sent to
<br>
> CISAS can be interpreted as spam by our server and as such
will not be
<br>
> allowed through to the inbox. You original email was
un-junked and as
<br>
> such we should experience no further problems receiving your
emails.
<br>
>
<br>
>
<br>
>
<br>
> I am sorry that any information you received from Bintu was
incorrect
<br>
> and that you felt my answers were evasive. I have sent you
the CEDR
<br>
> Complaints Procedure previously which you will need to use in
order to
<br>
> make a complaint about the CISAS service.
<br>
>
<br>
>
<br>
>
<br>
> I can confirm that Numbergroup Network Communications
(Ireland) Limited
<br>
> is a member of CISAS. This company also goes by the name of
Numbergroup
<br>
> Network Limited. We can therefore take on complaints about a
company
<br>
> with either of the aforementioned names.
<br>
>
<br>
>
<br>
>
<br>
> There is no record of a companies named ‘Numbergrp Network
<br>
> Communications Ltd’ or ‘Numbergrp Ltd’ being a member of
CISAS. I
<br>
> suggest that you contact Ofcom in order to obtain further
information
<br>
> regarding these companies.
<br>
>
<br>
>
<br>
>
<br>
> Kind regards,
<br>
>
<br>
>
<br>
>
<br>
> Holly Quinn
<br>
> CISAS Team Leader
<br>
>
<br>
>
<br>
>
<br>
>
<br>
<br>
<br>
<br>
As you must know (from the Weinstein case)
<br>
<br>
<br>
On 22/08/17 12:21, Kavouss Arasteh wrote:
<br>
<blockquote type="cite">Dear All
<br>
I have noted some immediate rush and reaction to the proposal
made by Thiago
<br>
He raised an important issue which I have also taken with
reference to a
<br>
Resolution adopted by Plenipotentiary Conference of ITU Busan to
which
<br>
the United States of America which hosting ICANN venue and ICANN
<br>
applicable law regarding non interference of any State in the
ccTLD of
<br>
other States.
<br>
This has nothing to do with the development of PDP in process as
it may
<br>
takes years to finalize during which the ccTLD of other states
would be
<br>
detrimentally impacted.
<br>
We have established WS2 and its sub grouop dealing with
jurisdiction
<br>
which is quite eligible to address the issue .We need to
understand each
<br>
other ^s problems and not make back and fort the issues which is
of
<br>
fundamental and crucial importance.
<br>
Please also see my issue 2
<br>
Regards
<br>
Kavouss
<br>
<br>
<br>
having read our immediate reaction but
<br>
<br>
<br>
On Tue, Aug 22, 2017 at 12:23 PM, Nigel Roberts
<<a class="moz-txt-link-abbreviated" href="mailto:nigel@channelisles.net">nigel@channelisles.net</a>
<br>
<a class="moz-txt-link-rfc2396E" href="mailto:nigel@channelisles.net"><mailto:nigel@channelisles.net></a>> wrote:s
<br>
<br>
I fully support Jordan's intervention here.
<br>
<br>
Neither this group nor the ICANN Board can legislate for
ccTLDs -
<br>
the strong respecting of the principle of subsidiarity by
ICANN is
<br>
fundamental to the relationship tween the ccTLD community
and ICANN,
<br>
enabling the 2003 Montreal Agreement which rescued the
<br>
multistakeholder model, reversing the previous year's formal
<br>
rejection and abandonment of the ICANN system by ccTLDs.
<br>
<br>
<br>
<br>
On 22/08/17 10:58, Jordan Carter wrote:
<br>
<br>
Dear Thiago, dear all,
<br>
<br>
Dispute resolution regarding ccTLD matters is currently
the
<br>
subject of a
<br>
PDP in the ccNSO.
<br>
<br>
This isn't the perfect link but does give some info:
<br>
<br>
<a class="moz-txt-link-freetext" href="https://www.icann.org/public-comments/ccnso-pdp-retirement-review-2017-05-24-en">https://www.icann.org/public-comments/ccnso-pdp-retirement-review-2017-05-24-en</a><br>
<a class="moz-txt-link-rfc2396E" href="https://www.icann.org/public-comments/ccnso-pdp-retirement-review-2017-05-24-en"><https://www.icann.org/public-comments/ccnso-pdp-retirement-review-2017-05-24-en></a><br>
<br>
While the existence of the PDP does not prevent this
sub-group
<br>
of the
<br>
CCWG discussing this matter, my understanding of ICANN's
bylaws
<br>
is that
<br>
the Board would not be able to accept any WS2
recommendation on this
<br>
subject. That is a hard won protection of our ccTLD
<br>
independence that
<br>
has been a feature of the ICANN system since the ccNSO
was formed.
<br>
<br>
As such, the Jurisdiction group may prefer to focus its
effort and
<br>
energy on matters where implementable recommendations
can be
<br>
made by the
<br>
CCWG.
<br>
<br>
Hope this helps,
<br>
<br>
Jordan
<br>
<br>
<br>
On Tue, 22 Aug 2017 at 1:32 PM, Thiago Braz Jardim
Oliveira
<br>
<<a class="moz-txt-link-abbreviated" href="mailto:thiago.jardim@itamaraty.gov.br">thiago.jardim@itamaraty.gov.br</a>
<br>
<a class="moz-txt-link-rfc2396E" href="mailto:thiago.jardim@itamaraty.gov.br"><mailto:thiago.jardim@itamaraty.gov.br></a>
<br>
<<a class="moz-txt-link-freetext" href="mailto:thiago.jardim@itamaraty.gov.br">mailto:thiago.jardim@itamaraty.gov.br</a>
<br>
<a class="moz-txt-link-rfc2396E" href="mailto:thiago.jardim@itamaraty.gov.br"><mailto:thiago.jardim@itamaraty.gov.br></a>>>
<br>
<br>
wrote:
<br>
<br>
Dear All,
<br>
<br>
For your consideration:
<br>
<br>
Issue 3: In rem Jurisdiction over ccTLDs
<br>
<br>
Description: US courts have in rem jurisdiction over
domain
<br>
names as
<br>
a result of ICANN's place of incorporation, and US
courts and US
<br>
enforcement agencies could possibly exercise its
exclusive
<br>
enforcement jurisdiction over ICANN to compel it to
re-delegate
<br>
ccTLDs. This is contrary, in particular, to
paragraph 63 of the
<br>
Tunis Agenda: "Countries should not be involved in
decisions
<br>
regarding another country's country-code Top-Level
Domain
<br>
(ccTLD).
<br>
Their legitimate interests, as expressed and defined
by each
<br>
country, in diverse ways, regarding decisions
affecting their
<br>
ccTLDs, need to be respected, upheld and addressed
via a
<br>
flexible
<br>
and improved framework and mechanisms." It is to be
noted
<br>
that while
<br>
paragraph 63 may not state that States have
sovereignty over
<br>
ccTLDs,
<br>
it does establish that States should not interfere
with ccTLDs.
<br>
Further, an obligation on States not to interfere
with certain
<br>
matters, as ccTLDs, need not be based on the
principle of
<br>
sovereignty to exist, nor does it suppose that the
matter is one
<br>
subject to the sovereignty of States. For States can
simply
<br>
agree to
<br>
limit their ability to interfere with ccTLDs
delegated to other
<br>
countries, and this is the principle embodied in
Paragraph
<br>
63 of the
<br>
Tunis Agenda.
<br>
<br>
Proposed solution: ICANN should seek jurisdictional
<br>
immunities in
<br>
respect of ICANN's activities relating to the
management of
<br>
ccTLDs.
<br>
In addition, it should be included in ICANN Bylaws
an exclusive
<br>
choice of forum provision, whereby disputes relating
to the
<br>
management of any given ccTLD by ICANN shall be
settled
<br>
exclusively
<br>
in the courts of the country to which the ccTLD in
question
<br>
refer. A
<br>
similar exclusive choice of forum clause shall be
included
<br>
in those
<br>
contracts ICANN may have with ccTLD managers, where
such a
<br>
contract
<br>
exists.
<br>
<br>
Best regards,
<br>
<br>
Thiago
<br>
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<br>
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<br>
<br>
--
<br>
Jordan Carter | Chief Executive, InternetNZ
<br>
<br>
+64-21-442-649 <a class="moz-txt-link-rfc2396E" href="tel:%2B64-21-442-649"><tel:%2B64-21-442-649></a> |
<a class="moz-txt-link-abbreviated" href="mailto:jordan@internetnz.net.nz">jordan@internetnz.net.nz</a>
<br>
<a class="moz-txt-link-rfc2396E" href="mailto:jordan@internetnz.net.nz"><mailto:jordan@internetnz.net.nz></a>
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<br>
Sent on the run, apologies for brevity
<br>
<br>
<br>
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