[CCWG-ACCT] Notes, recordings and transcript for WS2 Jurisdiction Subgroup Meeting #8 | 20 October16

[MSSI Secretariat]

Hello all,

The notes, recordings and transcripts for the CCWG Accountability WS2 Jurisdiction Subgroup Meeting #8 | 20 October 16 will be available here; https://community.icann.org/x/-RC4Aw

The copy of the notes can be found below.

Thank you!
Brenda & Yvette


Notes
(Including relevant parts of chat):
24 participants at start of call
________________________________
1. Welcome
Apologies: Cheryl Langdon-Orr
Greg Shatan: Update from leadership call earlier this week. Looking for more participation from participants. Comments will be removed once the document is completed.
Jorge Cancio (GAC Switzerland): I would request staff and/or the rapporteur to take on board also the comments on the margin.
Greg Shatan: do not agree. If you have text please enter it.
Vinay Kesari: Agree with Greg on Jorge's point - it would be difficult for staff/ rapporteurs to do that without inserting their own value judgments (except where it's a pure copy-paste of a comment into the body).
Jorge Cancio (GAC Switzerland): I understand that we have to include our comments not as "comments", but as "suggestions" - otherwise valuable efforts and time are lost.
Vinay Kesari: Jorge - absolutely.
Farzaneh Badii: Vinay you need to put the doc on comment mode. That way automatically goes on suggestion mode when people sign in
Kavouss Arasteh: We are not making progress. We have multiple fronts - there is no focusing on a given topic and we do not seem to be progressing on any of them. What should we focus on to have some progress? We need to prioritize.
Farzaneh Badii: it's ok Greg. No group is making progress in some people's views.
David McAuley: Could use a tutorial on google docs. Also GS how do we want to use the Google docs?
Bernie Turcotte: Staff will post links to tutorials that are available (action item)
Greg Shatan: Review of Google Docs modes.
Pedro da Silva - [GAC Brasil]: If an alternative to google docs can be sought, I would be grateful. I have issues accessing it from work.
Kavouss Arasteh: I have serious difficulties to have access to GD
Parminder: I think that while entering into the google doc is necessary to have a collaborative document move along, it may be useful to get the important issues/ arguments/ justifications also to the enlist so that others can see and if needed weigh in on.
Kavouss Arasteh: We have been working during WS1 in 3 Cross Community Group with redline doc. and everybody was happy
Farzaneh Badii: I agree with that Parminder, I think we can discuss the most pressing issues on the mailing list as well
Jorge Cancio (GAC Switzerland): I would also like to respectfully request that some empathy is developed and displayed for those of us who are not us law specialists - i.e. that an effort is made to understand the issue presented, without entering in endless debates about the exact meaning something has under US law specifically.
Tijani Ben Jemaa: I remind everyone that ICANN makes Wiki tool that is available to all and works fine as this is what we use in ALAC.
Farzaneh Badii: hmm I wonder if we really needed to spend 30 minutes discussing usage of google doc.
Kavouss Arasteh: It is frustrating that at 8th meeting we are discussing "working Method "+
Farzaneh Badii: you bring it up Kavouss.

2.  Multiple Layers of Jurisdiction.
Matthew Shears: Greg do you think it is possible at this juncture to clean this doc up and post again as a consolidated text for comment
Kavouss Arasteh: Why are these things layers of jurisdiction?
Greg Shatan: this is based on the requirements of WS1 Recommendation 12 on Jurisdiction.
Kasvouss Arasteh: would it not be to have this in tabular form where we could separate what is from the Annex 12 and then another column for comments etc. Similarly to what was done in Human Rights.
Greg Shatan: this is different from the HR work which is charged with interpreting a Bylaws text. I will work on integrating comments etc. the next version of the layers document.

3.  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.

David McAuley: This document gets, in part, to the notion of venue. IRP will be venue-less with the new rules.
Jorge Cancio (GAC Switzerland): thanks to David for that info. What about the language of the proceedings? The rule is English, what about additional "official ICANN languages"?
Farzaneh Badii: where can we enforce the award, and would online hearing be accepted as hearing in some jurisdictions?
David McAuley (RySG): I better check on that Jorge rather than rely on memory - will do that and come to list with that Q+A
Farzaneh Badii: I think it makes sense to be in English. Lowers the costs in general.
Jorge Cancio (GAC Switzerland): And lowers the accessibility for many stakeholders
Farzaneh Badii: not for many. That's an exaggeration. Which led ICANN to translate many things to 6 languages and their usage is absolutely unknown
Jorge Cancio (GAC Switzerland): dear Farzaneh: language is an issue, for instance for many GAC members - before making general assertions we would need some data.
Farzaneh Badii: yes exactly Jorge - so let's get the data then talk about accessibility.
David McAuley (RySG): Jorge: Bylaw Article 4.3(l) says this: All IRP proceedings shall be administered in English as the primary working language, with provision of translation services for Claimants if needed.
Jorge Cancio (GAC Switzerland): I guess that working in your mother language or at least one of the official languages helps for starters. That English is accessible for all interested is what would need to be supported by data, if you permit
Farzaneh Badii: David, is it possible at this stage of IRP group work, to talk about enforcement?
Jorge Cancio (GAC Switzerland) 2: Dear David, I suggest that you take that issue on board - at least to consider it, thanks!
David McAuley (RySG): Will do what I can and keep you informed Jorge. Not sure what latitude there is now.
Christopher Wilkinson: @Bylaw Article 4.3(l): That would not be acceptable in Europe in my experience.
Jorge Cancio (GAC Switzerland) 2: @David: thx! Please keep me posted...
Greg Shatan: Discussion of draft document.
Jorge Cancio (GAC Switzerland) 2: when hearings are made electronically, what is the venue that is considered legally?
Farzaneh Badii: yes, online hearing might not be accepted in some jurisdictions
Greg Shatan: there have been contributions on this document and would ask everyone to go through these and make comments or add text.
Vinay Kesari: Farzi, I think they have gone on record stating that local law would apply in some matters such as employment law, property law (with respect to renting premises for example). My last comment was in response to your earlier comment on jurisdictions where ICANN has offices, not incorporated
Tijani Ben Jemaa: With IRP there is a standing panel. As to the type of disputes - there is something missing here - what about applicants for new gTLDs who are not contracted parties?
Greg Shatan: I am uncertain about TBJ assertion that ICANN incorporation means IRP is California jurisdiction.
Christopher Wilkinson: It would be very reassuring to confirm that IRP is NOT subject to CA law. The MAIN point about IRP is to ensure that it is accessible and affordable for ALL eventual complainants, including private individuals. CW
Parminder: IRP is ICANN's internal arrangement. I am not sure it is an issue of jurisdiction, to be considered here.
Farzaneh Badii: so there can be a choice of substantive law for IRP?
Farzaneh Badii: IRP is not internal management Parminder it's like arbitration
Parminder: Yes, appeal against or for enforcement of IRP decisions may be an issue of jurisdiction
Jorge Cancio (GAC Switzerland) 2: IRP is a legal accountability mechanism with jurisdictional aspects
Farzaneh Badii: it's binding I think, there might not be an appeal
Greg Shatan 2: Influence/Effect/Consequence are all possibilities.
Farzaneh Badii: so there can be a choice of substantive law for IRP?
Kavouss Arasteh: We are moving in the right direction. We should not use the word Influence.
David McAuley: The standing panel will be selected considering diversity. IRP cases will be decided vs the Bylaws and not any local laws.
Greg Shatan 2: Q: What substantive law is applied in an IRP? However, we have to be careful with IRP given there is another group working on it.
Kavouss Arasteh: re TBJ question is an important question and should be looked again and answered.
Greg Shatan: will include this.
David McAuley (RySG): Bylaw Article 4.3(v) is relevant here - I will read it is short. If push comes to shove the panel may have to address. Also rules say it will be a DeNovo decision.

4.  Preparation of Status Report before Hyderabad
Greg Shatan: Will draft a document and circulate for comment.

5.  Hyderabad: What do want to accomplish in F2F?
Kavouss Arasteh: Major questions should be brought up and we need to identify these before going to Hyderabad
Tijani Bern Jemaa: There is no meeting of sub-groups. If there is a sub-group meeting, we have to know so we can prepare.
Jorge Cancio (GAC Switzerland) 2: we need to engage in a fact finding exercise at some point of time, including on how well stakeholders have fared and perceived existing rules on applicable law, both in judicial, arbitration and internal mechanisms (such as IRP)
Bernard Turcotte: there are no facilities or time available for sub-group meetings in Hyderabad.
Greg Shatan: We should start thinking what questions we will have for ICANN legal and expert external legal advice. Everyone please continue to contribute. Adjourned - we have a meeting next week.

Action Items:
Staff to post links to tutorials on using Google Docs
Greg Shatan to post draft status report for Hyderabad to group for comments by end of weekend.


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