<div dir="ltr"><div class="gmail_default" style="font-family:verdana,sans-serif">Parminder,</div><div class="gmail_default" style="font-family:verdana,sans-serif"><br></div><div class="gmail_default" style="font-family:verdana,sans-serif">The schedule and deadlines were communicated repeatedly in the Subgroup and the Plenary over the course of recent months (not just "months ago"). I'm sorry it did not come to your attention, but it was not for lack of information or publicity. The most substantial discussion of this was at and around our August 9 meeting where it took up much of our time and was the subject of two documents circulated several times to the group, but there many other times as well. Indeed I believe I mentioned it on nearly every call after that. </div><div class="gmail_default" style="font-family:verdana,sans-serif"><br></div><div class="gmail_default" style="font-family:verdana,sans-serif">After that, we dealt with the OFAC and Choice of Law and Venue recommendations, which had developed traction and broad support in the group. While it would have been timely then to bring up how and whether we would consider issues and recommendations beyond these two, but not now, based on the CCWG deadlines. And the CCWG deadlines were ones we could not change.</div><div class="gmail_default" style="font-family:verdana,sans-serif"><br></div><div class="gmail_default" style="font-family:verdana,sans-serif">As for the Report, I don't believe it misleads anybody; nobody else has made that claim, and that was certainly not the intention. That said, the subgroup could consider removing the reference to the discussion on moving ICANN's hq and incorporation, so that it doesn't seem we're calling that out in particular. (We certainly don't have time to do a comprehensive overview of the work and discussions over the last year. I actually tried and then I stopped because it was too big of a task and not necessary to the main task of putting forward the recommendations. To some extent, the mention of hq/incorporation jurisdiction is a vestige of that attempt.) </div><div class="gmail_default" style="font-family:verdana,sans-serif"><br></div><div class="gmail_default" style="font-family:verdana,sans-serif">As for consensus, there was only one participant in the call who objected to the report; there was support or non-objection from all other participants. Similarly, on the list, there were only a couple of objections. This is entirely consistent with consensus as defined in our Charter. The report was put to the list at the earliest possible time under the circumstances, and then revised drafts sent after that, It was mentioned on the penultimate call that the draft report would be coming out between the calls, and I held off until only an hour before the submission deadline to start finalizing the report and submitted it just minutes before the deadline, so as much time as possible was offered then as well.</div><div class="gmail_default" style="font-family:verdana,sans-serif"><br></div><div class="gmail_default" style="font-family:verdana,sans-serif">Best regards,</div><div class="gmail_default" style="font-family:verdana,sans-serif"><br></div><div class="gmail_default" style="font-family:verdana,sans-serif">Greg</div><div class="gmail_extra"><br><div class="gmail_quote">On Thu, Oct 12, 2017 at 5:51 AM, parminder <span dir="ltr"><<a href="mailto:parminder@itforchange.net" target="_blank">parminder@itforchange.net</a>></span> wrote:<br><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex">
<div bgcolor="#FFFFFF"><span class="m_-2589932035392816216gmail-">
<p><br>
</p>
<br>
<div class="m_-2589932035392816216gmail-m_-9102242346990033213moz-cite-prefix">On Thursday 12 October 2017 12:25 AM,
Greg Shatan wrote:<br>
</div>
<blockquote type="cite">
<div dir="ltr">
<div style="font-family:verdana,sans-serif">Parminder,</div>
<div style="font-family:verdana,sans-serif"><br>
</div>
<div style="font-family:verdana,sans-serif">Welcome back to the
Subgroup. <br>
</div>
</div>
</blockquote>
<br></span>
Thanks Greg.<br>
<br>
Meanwhile I must explain that I was held by urgent deadlines on some
projects and some amount of travel whereby my attention to the
group's working has been less than I would have wanted it to be. I
seek no concessions for that, just explaining. <br>
<br>
I did see that recs on OFAC and choice of venue were being
discussed. I had no indication these are the only recs that would be
discussed, in the face of the fact that customised immunity related
possible recs were being discussed repeatedly by many of us. I
thought that it is after these two recs were done with that other
possible recs will be taken up, when I suddenly saw that the full
report was claimed to be ready, and then delivered. People who
wanted t focus on other recs were not given a proper chance at all,
and indecent haste was employed to close matters. <br><span class="m_-2589932035392816216gmail-">
<br>
<br>
<blockquote type="cite">
<div dir="ltr">
<div style="font-family:verdana,sans-serif"> If you had been
participating in the Subgroup or Plenary recently, you would
know that the time for considering and submitting
recommendations for consideration by the group has passed some
time ago. </div>
</div>
</blockquote>
<br></span>
I would request you to point me to the decision of the sub group
laying timelines for submitting and considering recs. I dont
remember seeing them. Even if they existed they were not prominent
enough for people to know them well, after all these were one of the
most important timelines for the group. But then do point out where
and when they were publicised. Thanks. <br><span class="m_-2589932035392816216gmail-">
<br>
<br>
<blockquote type="cite">
<div dir="ltr">
<div style="font-family:verdana,sans-serif">The deadline for any
Subgroup to submit a draft report <b>to the Plenary</b> that
could be part of the CCWG Report is<b> 23:59 UTC today</b>.
This has been clearly communicated for some months now.</div>
</div>
</blockquote>
<br></span>
Yes months ago. But closer to the deadline it is the chairs
responsibility to make them repeatedly clear -- unless the intention
is not to remind people who may have forgotten them. <br><span class="m_-2589932035392816216gmail-">
<br>
<blockquote type="cite">
<div dir="ltr">
<div style="font-family:verdana,sans-serif"><br>
</div>
<div style="font-family:verdana,sans-serif">This report is not
intended to be a full record of all the group's
deliberations. Its focus is the recommendations that have
reached consensus (i.e., broad support, but not necessarily
unanimity or lack of objection) in the Subgroup. As such, it
does not generally reflect discussion of items that did not
garner broad support.</div>
</div>
</blockquote>
<br></span>
But it need not mislead people that the group was discussing change
of ICANN jurisdiction, when it hardly ever discussed it, and not
mention the fact that "customised immunity for ICANN" was hotly and
repeatedly discussed -- despite attempts by process keepers to
discourage that discussion. To me, it just attempts to make the
positions of those who wanted some recs in this area look very
unreasonable, by mentioning that discussions involved changing
ICANN's jursidiction, rather than seeking "customised immunity" for
it under the US IOI Act, which looks so much a reasonable
proposition. Can you please explain why this was done.<span class="m_-2589932035392816216gmail-"><br>
<br>
<br>
<blockquote type="cite">
<div dir="ltr">
<div style="font-family:verdana,sans-serif"><br>
</div>
<div style="font-family:verdana,sans-serif">You can review the
Subgroup's emails and meetings to see how we arrived at these
two recommendations as being the ones to be included in the
Subgroup's report. This was based on identifying these
recommendations as ones where the group could find common
ground and where concrete recommendations could be made.
Based on the meetings and emails over the last several weeks,
I am fairly confident that these two recommendations have the
consensus support of the Subgroup.<br>
</div>
</div>
</blockquote>
<br>
<blockquote type="cite">
<div dir="ltr">
<div style="font-family:verdana,sans-serif"> We will confirm on
today's call that the Report as a whole has that same support.</div>
</div>
</blockquote>
<br></span>
You got at least two disagreements with the report even before the
meeting. However, you nevertheless chose to send the report to the
plenary as a consensus report. Can you please explain this.<br>
<br>
Also, it was decided that at an earlier time that all decisions in
tele-meetings will be put to the elist for some time (esp when the
tele meeting takes place at a time which past midnight for a very
big part of the population of the world) before these are considered
final. You did not do this in the present case, neither gave any
warning that you wont be ding it.<span class="m_-2589932035392816216gmail-HOEnZb"><font color="#888888"><br>
<br>
parminder <br></font></span><div><div class="m_-2589932035392816216gmail-h5">
<br>
<br>
<blockquote type="cite">
<div dir="ltr">
<div style="font-family:verdana,sans-serif"><br>
</div>
<div style="font-family:verdana,sans-serif">However, if the Report
does not have consensus support of the Subgroup, we will have
no choice but to not submit the Report.</div>
<div style="font-family:verdana,sans-serif"><br>
</div>
<div style="font-family:verdana,sans-serif">Best regards,</div>
<div style="font-family:verdana,sans-serif"><br>
</div>
<div style="font-family:verdana,sans-serif">Greg </div>
</div>
<div class="gmail_extra"><br>
<div class="gmail_quote">On Wed, Oct 11, 2017 at 2:27 PM,
parminder <span dir="ltr"><<a href="mailto:parminder@itforchange.net" target="_blank">parminder@itforchange.net</a>></span>
wrote:<br>
<blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex">
<div bgcolor="#FFFFFF">
<p><font face="Verdana">Since there is no response on how
and when was it decided to chose only OFAC and choice
of venue as the issues to give recs on, and how the
issue of possible immunity from US jurisdiction
excluded from this exercise, i want to put it on
record before today's meeting (which I will not be
able to attend) that I, and perhaps others, would like
to put up a draft rec on the immunity issue for the
group.... It is up to the group to accept it or
not.... If it is unable to reach consensus it is
possible that I, and perhaps others, may want to put
it as a dissenting view, that will be requested to be
attached to the group's report. Please let me know the
process and time line for submitting (1) draft rec on
customised immunity for ICANN, (2) in case there is no
consensus on it. to give a dissenting view. <br>
</font></p>
<p><font face="Verdana">Also, I disagree with the manner
that the current report does a very partial job of the
mandate given to it, cherry picking one or two aspects
of the mandate and ignoring other, without a due and
clear process. I also disagree with the manner in
which its narrative glosses over the major discussions
ans dynamics in the sub group, especially around the
issue of US gov's jurisdiction and possibilities of
seeking customised immunity under the US IOI Act.....
It is most astounding how the report manages to
completely avoid even a mention of the immunity issue
which was hotly argued and discussed by the sub group,
and on which so many members had such strong views. <br>
</font></p>
<p><font face="Verdana">It can hardly be said that there
is a consensus on the group's outputs as mentioned in
the draft report...</font></p>
<span class="m_-2589932035392816216gmail-m_-9102242346990033213HOEnZb"><font color="#888888">
<p><font face="Verdana">parminder </font><br>
</p>
</font></span>
<div>
<div class="m_-2589932035392816216gmail-m_-9102242346990033213h5"> <br>
<div class="m_-2589932035392816216gmail-m_-9102242346990033213m_9065613103414112323moz-cite-prefix">On
Wednesday 11 October 2017 06:52 PM, parminder wrote:<br>
</div>
<blockquote type="cite">
<p><br>
</p>
<br>
<div class="m_-2589932035392816216gmail-m_-9102242346990033213m_9065613103414112323moz-cite-prefix">On
Wednesday 11 October 2017 03:40 AM, Greg Shatan
wrote:<br>
</div>
<blockquote type="cite">
<div dir="ltr">
<div style="font-family:verdana,sans-serif">All, </div>
<div style="font-family:verdana,sans-serif"><br>
</div>
<div style="font-family:verdana,sans-serif">I have
received no comments on the Draft Subgroup
Report.</div>
</div>
</blockquote>
<br>
Greg, I was able to see it only just now and have
the following quick comments before today's meeting.
Will give more comments later on<br>
<br>
At 2 places the report notes that the sub group got
into discussing to topic of of "changing ICANN’s
headquarters or jurisdiction of incorporation".<br>
<br>
As I have previously mentioned on this list, I
recall no real discussion at any time on actually
"changing ICANN's headquarters or jurisdiction of
incorporation". What did happen were repeated
discussions on possibility of seeking immunity for
ICANN under the US's International Organisations
Immunity Act... Why dont we mention the actual
discussion that took place in the group -- however
inadequately, despite many members repeated requests
for a proper discussion -- then put in what was
hardly discussed?<br>
<br>
Next, the report says that it chose to priortize the
two issues of OFAC and choice of jurisdiction in
contracts among many possible issues. I just want to
be reminded which decision it refers to, and taken
when. In any case, I disassociate myself from any
such decision. But please do point me to the
relevant decision of the sub group. <br>
<br>
I am also not clear about <br>
<br>
"The Subgroup understands that it cannot require
ICANN to make amendments to the RA or the RAA "
(said with regard to choice of jurisdiction
recs)..... Why so? Sorry if this has already been
discussed, but fell be grateful if the reason is
explained to me.<br>
<br>
I do also note that there is really no
recommendation with regard to choice of jurisdiction
issue but just a series of musings. This fact that
no rec is being made in this regard should be very
clearly stated.<br>
<br>
So, finally the only substantial thing I understand
the group to be saying is that it wants ICANN to be
more specifically clear that it will try to seek
OFAC licence for all otherwise legitimate cases, and
that ICANN should explore (only explore) general
OFAC licences -- which rec is also made with too
much defensiveness. <br>
<br>
And it wants to say nothing on jurisdictional
immunity issue, in fact completely censor the issue
out of the report, even in parts which just
factually deal with discussions that happened in the
group. <br>
<br>
<br>
More later, <br>
<br>
thanks, parminder <br>
<br>
PS: Excuse me for the hurried comments, I am at some
place right now where I am very constrained in time.
<br>
<br>
<br>
<br>
<blockquote type="cite">
<div dir="ltr">
<div style="font-family:verdana,sans-serif"><br>
</div>
<div style="font-family:verdana,sans-serif">I have
added a summary of the Choice of Law and
Choice of Venue Recommendation to the
Executive Summary, based on the current state
of that Recommendation in the Google doc.</div>
<div style="font-family:verdana,sans-serif"><br>
</div>
<div style="font-family:verdana,sans-serif">The
Draft Report is attached in Word and PDF
versions. The Google doc is (still) at <a href="https://docs.google.com/document/d/135c03wFSIlz1Lqdv6Tte8sw7tMinsQEgy0CoNtRXT4Y/edit?usp=sharing" target="_blank">https://docs.google.com/doc<wbr>ument/d/135c03wFSIlz1Lqdv6Tte8<wbr>sw7tMinsQEgy0CoNtRXT4Y/edit?us<wbr>p=sharing</a></div>
<div style="font-family:verdana,sans-serif"><br>
</div>
<div style="font-family:verdana,sans-serif">I will
circulate that Recommendation next, in Word
and PDF versions, as it now stands.</div>
<div style="font-family:verdana,sans-serif"><br>
</div>
<div style="font-family:verdana,sans-serif">These
documents will be discussed on tomorrow's
call. An agenda will be circulated shortly.</div>
<div style="font-family:verdana,sans-serif"><br>
</div>
<div style="font-family:verdana,sans-serif">Greg</div>
</div>
<br>
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</blockquote>
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</div></div></div>
</blockquote></div><br></div></div>