[CCWG-ACCT] Notes, recordings and transcript for WS2 Jurisdiction Subgroup Meeting # 19 | 30 January

[MSSI Secretariat]

Hello all,

The notes, recordings and transcripts for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #19 – 30 January 2017 will be available here:  https://community.icann.org/x/14PRAw

 A copy of the notes and action items may be found below.

Thank you.

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

Action Items:
·

·         Greg Shatan to redraft Summary Form per comments on the list

·         Volunteers to analyze cases using forms should pick their cases (sign up sheet) and complete their analysis per the Form for 14 February.

·         MW has completed his 2 cases.

·         Re draft question from DM on possibility of ICANN being sued in other jurisdictions – sub-group should review and post comment if any this week.

Notes (including relevant portions of chat):
1.  Welcome
Greg Shatan: (15 participants at start of call). No changes to SOIs.
2.  Questionnaire
          a.   Time Period for Responses to the Questionnaire
        Greg Shatan: Great deal of discussion. Some requesting 30 days after the ICANN58 meeting. Would suggest closing 7 April with no extensions possible - as a middle ground. Any comments?
Bernard Turcotte: Reminder that KA has requested 30 days after ICANN 58.
Greg Shatan: yes 7 April would be a compromise.
Avri Doria: sure, give all the time people need.
David McAuley (RySG): I ilke the idea of not extending and looking at replies as they come in
John Laprise: the longer the better to allow participation and knowledge of the issue.
Greg Shatan: Good points, we have a lot of work to do in the meantime so no reason not to extend. Also, we can ask people to respond early and the group can consider these as they come in. As such would suggest closing 17 April which is 30 days after ICANN 58 closes.
Mathieu Weill: A quick work plan note: Mid Apr is 2 months away from Johannesburg. Might be difficult to be in a position to have a 1st reading by then
David McAuley (RySG): Good point Mathieu
Mathieu Weill: Not that it is a deadline, but it's important to manage expectations on timeline
Greg Shatan:(decision) No objections. So, the questionnaire will be taking responses until 17 April which is 30 days after ICANN58 and there will be no extensions.
Avri Doria: if we work with the replies coming in, then finishing up after the 17th might be quick.  and we can make a plea for early responses because of the schedule.
3.    Hypothetical #1 (taken from “Influence of ICANN’s Existing Jurisdiction” document, Section C )
Greg Shatan: This is what I think is the heart of our work. (going through the document).
David McAuley: A difficulties I am having is understanding WHAT WENT WRONG. Otherwise
Avri Doria: does the nationality of the plaintiff feed in any complexity?
Philip Corwin: On point 4, if the ruling is against ICANN and ICANN belives the ruling to be erroneous, it has a right of appeal.
Mathieu Weill: Who is judging on correctly or wrongly decided?
Avri Doria: it is a possible good thing to mark all the points in the hypotheticals where some action by ICANN and its Board & EC
Philip Corwin: IMH< the key consideration is that ICANN is HQ'd in a jurisdiction with a clear commitment to the rule of law, and that any party with standing can initiate litigation regardless of their home jurisdiction.
Avri Doria: Philip sometimes easier said than done
Mathieu Weill: We should check how many litigations in court were initiated by parties outside the US (to check how Phil's requirement translates into practice)
Avri Doria: As long as someone from the 7 countries does not need to appear in court, it might be ok.
Philip Corwin: @Avri--challenges of bringing litigation, especially costs, are hardly unique to US
Wale Bakare: Would the decision different in either case?
Avri Doria: i don't know, but i understand some view a physical presence as sometimes preferable in terms of making an appeal.
Wale Bakare: In physical's emotions can get involved and perhaps could impact on the decision
Avri Doria: often a good thing
Philip Corwin: regardless of the governing law, the court's ruling might be pro-ICANN from one judge and anti-ICANN from another. There is no way to guarantee 100% consistency in any judicial forum. That's why there are rights of appeal.
Avri Doria: they are part of the equation
Mathieu Weill: Having ICANN accountable to other governing laws might actually bring additional accountability, for instance related to privacy
Mathieu Weill: This is a great list of factors to compare jurisdiction if need be
David McAuley: It might help if we segment questions in 2 ways - Corporate Governance questions and Everything else.
Greg Shatan: This could be a template for looking at things.
4.  Small Group Review of ICANN’s Past and Current Litigation
          a.  Litigations: https://www.icann.org/resources/pages/governance/litigation-en
          b.  Draft Summary Form: https://docs.google.com/document/d/1efkQOvSwW-2m1T_u6anFMVUeiHoO6P4PR3-0mWlU_Cs/edit?usp=sharing
               Greg Shatan: Kudos to MW for being the first to complete his.
       David McAuley (RySG): Thanks for that Mathieu - I need to get active on my reviews
       Philip Corwin: Facts are often in dispute in litigation, with the court being the ultimate finder of facts. It finds the facts, and then it applies the relevant law.
       Mathieu Weill: GS will wait for your update to the forms.
       Greg Shatan: Will do.
          c.  Sign-Up Sheet: https://docs.google.com/document/d/1oo9oDJuuxFz1UUNaBfHeor7HPhJ5XcRHFTq3hjRltOM/edit?usp=sharing
5   “Influence of ICANN’s Existing Jurisdiction” document, Section C          a.https://docs.google.com/document/d/1_uxN8A5J3iaofnGlr5gYoFVKudgg_DuwDgIuyICPzbk/edit?usp=sharing
          Greg Shatan: We need to look to other hypotheticals that go to this question. KA has suggested a list of questions earlier in the year.
6.  AOB
Greg Shatan: DM has drafted question for ICANN Legal. Will consider this week.
7.  Adjourn
Decisions:
·
·         Time period for responding to questionnaire will be until 17 April with no extensions.


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