[CCWG-ACCT] Notes, recordings, transcript for WS2 Jurisdiction Subgroup Meeting #7 - 10 October 2016

[MSSI Secretariat]

Hello all,

The notes, recordings and transcripts for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #7– 10 October 2016 will be available here:  https://community.icann.org/x/mxC4Aw

A copy of the notes may be found below.

Thank you.

With kind regards,
Brenda Brewer
MSSI Projects & Operations Assistant
ICANN - Internet Corporation for Assigned Names and Numbers

Notes

Notes (including relevant parts of chat):

16 participants at start of call.

1. Welcome

Greg Shatan: No one on phone only. No changes to SOIs.

2. Discussion of Approach: Our work so far, and a way forward (see email)

        a. Changing ICANN's headquarters or incorporation jurisdiction

                i.      Will not be investigated at this time

                ii.     Not off the table -- If an issue is identified and we can’t find a less drastic solution, will revisit this point, including concerns raised, in the context of the identified issue.

Greg Shatan: Is this proposal ok? No comments. Assume no objections.

        b. Confirm and Assessing Gap Analysis

                 i.     Discussion has largely been about scope and not about confirmation and assessment

                ii.     Put to the side and revisit after work on substantive issue that is clearly “in scope”

Greg Shatan: Any issues with the proposal? No comments. Assume no objections.

         c. We will continue discussion of Multiple Layers of Jurisdiction document

Greg Shatan: No comments. Assume to objections.

        d. We will begin discussion of the “In Scope” Issue: The influence of ICANN’s existing jurisdictions relating to resolution of disputes (i.e., choice of law and venue) on the actual operation of policies and accountability mechanisms

Greg Shatan: No comments. Assume to objections. Overall comments?

David McAuley: Support the proposal overall and would propose doing D initially vs C.



Greg Shatan: I think we need to spend a little time on C so we all have a common understanding of what we mean by jurisdiction. It is not meant to be an exhaustive review of the layers.



David McAuley (RySG): Thanks Greg, sounds fine.



Milton Mueller: Support GS approach. Uncertain why put aside the gap analysis?

Greg Shatan: there has been a diversity views on this and no consensus by this group.

Kavouss Arasteh 2: Greg, I think you have proposed to put aside GAP analysis, why? I have no problem if we start with layers and then come back to GAP Alaysis - can you assure that we will not take jurisdiction off the table

3. Multiple Layers of Jurisdiction

(Multiple Layers of Jurisdiction document)

Greg Shatan: Jurisdiction of Incorporation definition. No comments.

Kavouss Arasteh 2: This document is written in a confusing manner perhaps to make it difficult to understand. It has been copied from the text of the WS1 which was also vague.

Greg Shatan: Jurisdiction of Headquarters proposed definition. No issues

Kavouss Arasteh 2: Grec, I have no problem for these cases , pls advise if there is an issue outside these places what would happened? the description of the multilayer as copied from the text of WS1 is vague ,unclear and requires streamlining - again and again, we should not just discuss the periphery of the case but the center of the issue

Greg Shatan: Places of physical presence.

David McAuley: Is ICANN incorporated in some of these other places of presence? Maybe ICANN legal can help.

Greg Shatan: Ok to ask ICANN Legal - but to my understanding a company can only be incorporated once and in one place. You may have to register with local authorities for doing business.

Kavouss Arasteh 2: 1. review the description as contained in WS1 and make it clear , understandable

Samantha Eisner: ICANN is not incorporated anywhere else. It is a registered foreign office or branch office equivalent in all other places.

Greg Shatan: Jurisdiction for Interpretation of contracts (choice of law or governing law).

Tijani Ben Jemaa: The real issue is the choice of the judge. As to Jorge's comment - who has the choice of applicable law?

Jorge Cancio (GAC Switzerland): the parties may in agreements determine the applicable law, as well as about the venue, provider etc of the dispute resolution.

Greg Shatan: Doing that at the time of a dispute is always an issue. Always best to do ahead of time.

Milton Mueller: you are saying that the Registry Agreement does not provide parties with choice of law?

Jeff Neuman: correct @milton

Milton Mueller: Same for RAA



Jeff Neuman: same with Registrar Accreditation Agreement



Jorge Cancio (GAC Switzerland): in the base registry agreement there are some provisions for specific cases where commitments conflict with applicable national law...

Milton Mueller: Yes, Jorge that's what I thought

Jeff Neuman: BUT, the venue is always in LA

Jorge Cancio (GAC Switzerland): there are some specific rules for governmental entities and IGOs I think

Jeff Neuman: For the Registrars it uses the American Arbitration Assocation

Greg Shatan: Jurisdiction of Litigation

David McAuley: WRT venue - we should not confuse with IRP which is essentially meant to be venue less.

Jorge Cancio (GAC Switzerland): My comments in the Google Doc are pointers of issues that could be improved (i.e. they are on the normative level) - but it's true that first we need a good factual description of the current situation

David McAuley (RySG): ok - will put the thought in google doc.

Milton Mueller: NTIA requirements are no longer required and this should be removed.

Greg Shatan: Think this is still valid.

Samantha Eisner: Requirements derived from NTIA's criteria are included in the WS2 Bylaw in Article 27

Avri Doria: I believe the NTIA requirements remain in effect for WS2.

Milton Mueller: How can they?

Avri Doria: as Sam says they are part of the transition bylaws.  after WS2, then it is arguable.

Milton Mueller: NTIA transition requirements are just that: transition requirements.

Jeff Neuman: So lets dismiss the work "NTIA" and substitute Article 27 of the Bylaws

Pedro da Silva - [GAC Brasil]: Although I fully support the requirements set out for the transition, I agree with Milton here. Number 7 is not a proper layer.

Greg Shatan: good points will clean up the document. Encourage everyone to put their comments in the Google doc.

David McAuley (RySG): Thanks Greg - let us know when doc is cleaned up and we can go back in

Tijani Ben Jemaa: Agree with MM - no need for this (7) layer here.

Milton Mueller: Support deleting it and Article is not really relevant.

David McAuley (RySG): I think Jeff's idea makes sense - call it art. 27

Greg Shatan: Invite everyone to look at Article 27 C. This applies to all sub-groups.

Tatiana Tropina: I agree with David and Jeff makes sense for now.

Milton Mueller: we can't change anything major "tomorrow" (vs NTIA requirements)

Tatiana Tropina: I think they are not "requirements" anymore but rather principles we want to follow?

Greg Shatan: encourage everyone to think about the next piece of work - item 4 of the agenda. Adjourned.


Documents Presented

·         MultipleLayersofJurisdiction.pdf<https://community.icann.org/download/attachments/62394523/MultipleLayersofJurisdiction.pdf?version=1&modificationDate=1476130977000&api=v2>



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