[CCWG-ACCT] Notes, recordings, transcript for WS2 Jurisdiction Subgroup Meeting #4 - 21 September 2016

MSSI Secretariat mssi-secretariat at icann.org
Mon Sep 26 15:34:13 UTC 2016

Hello all,

The notes, recordings and transcripts for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #4 – 21 September 2016 will be available here:  https://community.icann.org/x/EB2sAw

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

(including relevant elements of the chat):
1. Welcome
Note 29 participants at start of call.
Greg Shatan: no changes to SOI and no participants on phone only.
2. Approach to ICANN’s Place of Incorporation and Headquarters Location
        a. Should the scope of the Jurisdiction topic include examining the effects of ICANN's place of incorporation and location (for example, on the actual operation of policies
and accountability mechanisms and on the settlement of disputes), or should this be out of scope?
        b. Should the scope of the Jurisdiction topic include the possibility of recommending that ICANN be directed to change its place of incorporation and/or headquarters
location, or should this be out of scope?

David McAuley: This should be resolved by this group if possible and it may take several weeks. This is essentially the nub of our work.
Greg Shatan: uncertain if this is the nub or a red herring.
Tijani Ben Jemaa: Agree with DM we need to resolve this here. We need to agree on all the layers.
Milton Mueller: David: Are you saying we do not resolve the questions yet, or we do not resolve whether they are in scope or not?
David McAuley (RySG): in scope or not - to me that also takes time and thought - I believe not in scope but understand others don't agree.
Greg Shatan: the objective of the questions was to confirm the remit from WS1.
Kavous Arasteh: Why do we need to discuss this here (2nd question)
Finn Petersen, GAC - DK: Agree with Kavouss -ICANN's entire new structure and the empowered community is all based on California law. Our task is not to change the place of incorporation of ICANN. But if anybody can point to potential problems, we might look into means to address such problems without changing ICANN’s place of incorporation.
Avri Doria: it is not in our scope and shall not be discussed?
Milton Mueler: .Jurisdiction of incorporation is a bad idea but not out of scope. Long term we need to address this. My personal view is that it should be out of scope but not against discussing.
Greg Shatan: there are 3 answers to the question: invalid, make recommendations to CCWG.
Jeff Neuman: 2B is out of scope becasue of practicality. 2A however is in scope.
Milton Mueller: Agree, Jeff, but that is an argument against changing jurisdiction it is not an argument that it is out of scope
Greg  Shatan: When we discuss scope we are referring to tthe scope of this group.
Phil Corwin: My view is that we should enshrine ICANN incorporation in the US. We should not use scope to limit discussions of this.
Milton Mueller: right Philip, it's a question of rationality not scope
Pedro da Silva: I see the two questions as belonging to two different parts of our work. 2A is about scope and I believe it includes ICANN's jursidiction of incorporation as part of the layers. The second part of our work is about recommendations and there are many good arguments about not moving ICANN and these will be as valid in 9 months as they are now - but at that time we will have much more input.
jorge cancio (GAC Switzerland): for the gap analysis we should look at the second draft report  available here: https://community.icann.org/pages/viewpage.action?pageId=53783460. The relevant pages are 121-124.
Milton Mueller: Jeff, my understanding was that a lot of people wanted to discuss it in WS1 but it was too disruptive a change in the short term so we told them to  push it into WS2
Erich Schweighofer: The place of jurisdiction is flexible but it is unwise to change unless the present favourable situation exists. Other options have to be considered, maybe trying with certain activities.
Milton Mueller: Jeff, my understanding was that a lot of people wanted to discuss it in WS1 but it was too disruptive a change in the short term so we told them to  push it into WS2
Erich Schweighofer: The place of jurisdiction is flexible but it is unwise to change unless the present favourable situation exists. Other options have to be considered, maybe trying with certain activities.
David McAuley: the remit in 2A is good. 2B is about identifying alternatives. However I do not beleive we should look at moving ICANN. But we should have alternatives if there is ever a problem.
Kavous Arasteh: We should be practical, pragmatic and logical - everything is based on California law and there is a provision in the Bylaws to allow the Board to propose moving if necessary. There is no reason and no possibility that in the next few years that this would ever get approved. We do not need anything on changing jurisdiction of incorporation.
Christopher Wilkinson: in 2A my interest is that dispute resolution is available to participants worldwide and not limited to American legal system, mostly about the cost which would prevent many from using it.
Paul McGrady: We have been asked in the GNSO to approve a budget for WS2 and looking at alternative jurisdictions will require significantly more funds. As the WS1 recommendation leaves it open to us if we discuss jurisdiction or not - and if we want to do this optional topic we need a consensus call from this group to take work which will take more than a year and 10's of millions of dollars.
Tijani Ben Jemaa: If we do not reach consensus on anything we simply report it.
Greg Shatan: Given the time left on this call I would ask everyone to read Mathew Shears comment.
Kavous Arasteh: What is the status of 2B?
Greg Shatan: My impression is there is little support for taking place of incorporation off the table as looking at its effects.
Paul McGrady: So we are not talking about the choice of Jurisdiction but rather about the effects of the exisitng Jurisdiction. If there are issues with the effects the group could recommend modified accountability measures to the CCWG.
Greg Shatan: yes this is what I am asking. Examples looser pays. So if this cannot be discussed please give a red X. None. As such this should be in scope but will ask the list.
3. Gap Analysis: Annex 12 includes “confirming and assessing the gap analysis.”
       a. We need a common understanding of what this refers to.  Does the “gap analysis” refer to a determination in WS1 that there were no significant gaps in the
WS1 accountability proposal resulting from ICANN's current jurisdictional framework?
       b. How should we confirm and assess the gap analysis?

David McAuley: the current Byalws meets the requirements and as such the gap analysis has been done.
Kavous Arasteh: GAP analysis needs to be addressed.
Pedro da Silva: Disagree with DM and beleive we have not done a gap analysis. the difference betweeen our accountability requirements vs how they were implemented under California laws. One example of this is the models that were available such as Designator and the Empowered Community.
Greg Shatan: We need to write this up for disccussion.
Tijani Ben Jemaa: there are two interpretations - if there is a need to do one we should have a small group on this.
Philip Corwin: @David--Agree that ICANN is free to agree to using law/courts of a jurisdiction other than CA for contract disputes -- but also think it is most unlikely to do so for standard agreements with contracted parties. Why would it want to take on risks of different laws and adjudictaion systems, not to mention cost of hiring local counsel?
jorge cancio (GAC Switzerland): from the 2nd drafzt report: "1043 Initial gap assessment based on current CCWG-Accountability proposals: 1044 At this point of the work of the CCWG-Accountability, taking into account the comments received, the following issues have been identified for further investigation: • Requirement 4 (ability to sue and be sued to enforce Bylaws or accountability mechanisms): while some consider this requirement to be necessary, others would avoid as much as possible the use of any single country’s legal system. • Trade-off between CCWG-Accountability requirements and options under California law, particularly when discussing the community empowerment model. • Whether IRP decisions against ICANN would be binding despite local jurisdiction decisions. • Requirement 3 on governing law for contracts with registrars and registries may require further investigation. 1045 While these issues require further investigation, the CCWG-Accountability has not yet conducted a substantive examination of alternative jurisdict
jorge cancio (GAC Switzerland): ....jurisdictions that would better fit its requirements. While some commenters suggest that incorporation of ICANN under other legal systems, such as Swiss not-for-profit, would be beneficial (yet the basis for their assumption remains uncertain), further analysis and deliberation is needed on a fact-based approach to be entertained during Work Stream 2. "
jorge cancio (GAC Switzerland): at least now its on the record :-)
David McAuley (RySG): agree @ Phil
Greg Shatan: Strongly encourage particpation on the list. Also ask for people to work on the Google docs.
4. Continued Detailed Reading of the Google Docs.
       a. First Google Doc: https://docs.google.com/document/d/1UGRQqP5Bs923nmDYekZn5ZL7-DQc_QSa0GSnFoj4Pn8/edit?usp=sharing
       b. Second Google Doc: https://docs.google.com/document/d/1N2eCmjbA6bxJxCEluEHJIBzP_sGPN6krEqDshA0ARVM/edit?usp=sharing

5. Other Potential Inputs to our Work.
       a. More Detailed Review of Lightning Talks (summarized in Staff       Paper)

       b. Pertinent Literature (influenced by Scope)
       c. Experts/Legal Advice

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