[CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll Results

Sat Dec 24 19:04:14 UTC 2016

Dear All,
I strongly oppose to
A) To separate Jurisdiction from WORK Stream 2
B) To create a New Group due to the fact that this is not the old or new
group which has or will not have problem . The issue is one or perhaps twop
countries with their relative strong participation blocking every thing as
they want  NO CHANGE
This is a bad advice
Kavouss

2016-12-24 19:24 GMT+01:00 Nigel Roberts <nigel at channelisles.net>:

> Marilyn
>
> It didn't matter in WS1 when bylaws were written using legal terms-of-art
> without understanding what they means, and then WS2 sub-groups set up to
> determine what the true construction of the terms already adopted were . .
>
> But I agree with your last sentence.
>
>
>>
>> I support Sam's suggestion. Such a sub group or new group could then
>> advise into the CCWG.
>>
>>
>> BUT, really global legal expertise matters here.
>>
>>
>> M
>>
>>
>>  ter
>> ------------------------------------------------------------------------
>> *From:* accountability-cross-community-bounces at icann.org
>> <accountability-cross-community-bounces at icann.org> on behalf of Sam
>> Lanfranco <sam at lanfranco.net>
>> *Sent:* Saturday, December 24, 2016 10:35 AM
>> *To:* accountability-cross-community at icann.org
>> *Subject:* Re: [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll
>>
>> Results
>>
>> I may be an isolated outlier here with regard to how to approach the
>> core issue of jurisdiction within this CCWG, but I will state my view in
>> as few words as possible. Jurisdiction will remain a major issue whether
>> this CCWG includes, or excludes, jurisdiction as a question on its
>> questionnaire, and whether or not it tries to address the issue of
>> jurisdiction within this CCWG’s deliberations.
>>
>> In many ways ICANN is a new form hybrid organization, with its
>> multistakeholder policy making process, and with its global DNS policy
>> remit. The jurisdiction issues run both wide and deep, and are not
>> issues of simply finding the right “residence” for ICANN.  They are
>> about how do we (all stakeholders including governments) figure out how
>> to handle the jurisdiction related issues posed by ICANN’s
>> multistakeholder policy making structures, and its global DNS policy
>> remit. What lessons can we drawn on from experience, and what needs to
>> be cut from whole cloth (i.e., innovated)?
>>
>> While I have no objections to jurisdiction being addressed inside this
>> Accountability CCWG, I do not see this CCWG as an adequate venue for
>> such an important issue. The work required to address it properly means
>> that such a dialogue should take place in a venue (CCWG, whatever)
>> devoted specifically to the jurisdiction issue. This CCWG could start
>> the process by recognizing that, stating that the issue warrants its own
>> CCWG (or whatever), and pressing for rapid movement in that direction. I
>> could elaborate on each of the above points but I hope that the message
>> is pretty clear. The rationale for such an approach almost self-evident.
>>
>> Sam Lanfranco, NPOC/csih
>>
>>
>> On 12/24/2016 9:53 AM, Pedro Ivo Ferraz da Silva wrote:
>>
>>> Dear CCWG-colleagues,
>>>
>>> After reading some comments in this email thread, I must admit to be
>>> really disappointed.
>>>
>>>
>>> Some of our colleagues in the CCWG seem to have forgotten - perhaps on
>>> purpose - that the topic of jurisdiction was allocated to WS2 as a
>>> result of a postponement, since the majority of this group thought it
>>> was not appropriate to deal with it in the pre-transition period due
>>> to time constraints. My government  was not in favor of postponing the
>>> discussion on jurisdiction, as we consider it was – and remains – a
>>> fundamental aspect of a new ICANN truly governed by the
>>> multistakeholder community without any pre-conditions,  but in respect
>>> to the viewpoint of the other colleagues, we agreed to move it to WS2.
>>>
>>> Now that time has come to properly deal with this topic, it is quite
>>> frustrating to notice that some participants  insist on limiting
>>> and/or procrastinating this debate, including by using the absurd
>>> argument that any discussion around jurisdiction cannot put into
>>> question any aspect already decided in WS1, which is embedded in the
>>> California law. We cannot see good faith in that kind of circular
>>> argument.
>>>
>>>  In our view, the  discussion around the inclusion or exclusion of Q.4
>>> shows quite clearly that some of those who have fiercely objected to
>>> any jurisdiction debate during WS1 are  maintaining their objection in
>>> WS2 as well. On that particular topic (Q.4) we concur with the view
>>> that upon deciding on institutional arrangements we should not only
>>> consider already occurred cases but also take into account logically
>>> strong possibilities. The responses to the questionnaire should thus
>>> help us to deal with all possibilities associate to jurisdiction. In
>>> case any unsubstantiated opinion will be received, it should be
>>> summarily discarded.
>>>
>>> From the various jurisdiction calls it became quite evident that a
>>> substantial part of the subgroup - mainly non-US - has great interest
>>> in examining and debating ways through which we can make sure that any
>>> issue associated to jurisdiction  be addressed in a way compatible
>>>  with the company's international remit of coordinating Internet
>>> public identifiers. In that context, I would like to highlight my
>>> government´s understanding that although the proposed questionnaire
>>> under discussion may provide us with some relevant factual
>>> information, it does not in any way cover all aspects of interest. We
>>> would like to refer, for example, to the list of issues compiled by
>>> Kavouss Arasteh as per his 13 December 2016 e-mail. We would also
>>> refer to questions that have continuously been asked by Parminder,
>>> apparently without any satisfactory answer. Those issues and questions
>>> include, for example, dispute settlement related topics, which
>>> demonstrates, in our view, that jurisdiction cannot be seen purely
>>> from businesses´ viewpoint. As someone has stated, we also need to
>>> look at the relationship between ICANN and third parties and
>>> adequately consider non-contracted Parties that might be affected by
>>> ICANN´s acts and/or omissions.
>>>
>>> From the perspective of the Brazilian government, the topics raised by
>>> Kavouss, Parminder and others are issues of particular interest
>>>  which, needless to say, will not be adequately addressed through the
>>> mere analysis of the answers provided to the questionnaire, whether it
>>> includes Q.4 or not.
>>>
>>>  My government has  expressed its interest in pursuing discussion on
>>> jurisdiction through those angles  many times – both  during the IANA
>>> transition process and  well before that. Other governments have done
>>> the same, as well as a sound number of civil society organizations
>>> around the globe. The "NETmundial Multistakeholder Statement", while
>>> calling for the internationalization of ICANN, clearly expresses this
>>> as well. Let me emphasize, by the way, that the NETmundial Statement
>>> calls for ICANN´s internationalization and not for it to become an
>>> intergovernmental organization. Those are two different notions that
>>> should not be confounded.
>>>
>>> If this subgroup fails to deal with the multidimensional issues
>>> associated to jurisdiction  properly , it may be applauded by some
>>> segments , but it will not contribute to putting in place a framework
>>> that will ensure the shared goal of making ICANN a legitimate  entity
>>> in the eyes of all stakeholders, including governments. To achieve
>>> that, no issues should be discarded as "non important" or "not yet
>>> verified". While preserving the essence of what was achieved in WS1,
>>> innovative thinking, including on the part of persons with legal
>>> expertise, will be needed. Is it worth to wipe an important debate
>>> under the carpet just to comfort one or a few stakeholder groups while
>>> discontenting others? What kind of legitimacy is such a biased and
>>> limited exercise likely to have within the international community? .
>>>
>>> It is time the subgroup - including the coChairs - make a honest
>>> assessment of the various viewpoints related to  ICANN's jurisdiction
>>> and conduct the debate as openly as possible in order to address all
>>> the concerns and interests behind it.
>>>
>>> Kind regards,
>>>
>>> Sec. Pedro Ivo Ferraz da Silva
>>> Division of Information Society
>>> Ministry of Foreign Affairs - Brazil
>>> T: +55 61 2030-6609
>>> ------------------------------------------------------------------------
>>>
>>           <rest deleted>
>>
>>
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