[Ws2-jurisdiction] Staff paper on jurisdiction posted

Tue Aug 23 16:32:09 UTC 2016

Jorge,

The Subgroup is free to use the information as it wishes, the intention was
to provide some background from WS1 discussions and references to the
subgroup as it starts its work.

Karen Mulberry
Multistakeholder Strategy and Strategic Initiatives
ICANN

From:  "Jorge.Cancio at bakom.admin.ch" <Jorge.Cancio at bakom.admin.ch>
Date:  Tuesday, August 23, 2016 at 10:22 AM
To:  Karen Mulberry <karen.mulberry at icann.org>, "ws2-jurisdiction at icann.org"
<ws2-jurisdiction at icann.org>
Cc:  ACCT-Staff <acct-staff at icann.org>, "Thomas Rickert
(thomas at rickert.net)" <thomas at rickert.net>
Subject:  AW: Staff paper on jurisdiction posted

Thanks for this information.

I wonder whether we are allowed to make comments to the staff document. A
change/edit modus would probably be helpful.

As a general remark, I feel that staff comments/opinions should be clearly
labeled as such and distinguished from what was agreed in the ws1 paper
(i.e. Annex 12), where we said basically the following:

In the summary (points 2 and 5)

³Addressing jurisdiction-related questions, namely: ³Can ICANN¹s
accountability be
enhanced depending on the laws applicable to its actions?² The
CCWG-Accountability
anticipates focusing on the question of applicable law for contracts and
dispute
settlements.³

And in the ³topic development² (starting at point 25):

³25 Jurisdiction
26 Jurisdiction directly influences the way ICANN¹s accountability processes
are structured and
operationalized. The fact that ICANN is incorporated under the laws of the
U.S. State of
California grants the corporation certain rights and implies the existence
of certain accountability
mechanisms. It also imposes some limits with respect to the accountability
mechanisms it can
adopt.
27 The topic of jurisdiction is, as a consequence, very relevant for the
CCWG-Accountability.
ICANN is a nonprofit public benefit corporation incorporated in California
and subject to
applicable California state laws, applicable U.S. federal laws and both
state and federal court
jurisdiction. ICANN is subject to a provision in paragraph eight1 of the
Affirmation of
Commitments, signed in 2009 between ICANN and the U.S. Government.
28 ICANN¹s Bylaws (Article XVIII) also state that its principal offices
shall be in California.
29 The CCWG-Accountability has acknowledged that jurisdiction is a
multi-layered issue and has
identified the following "layers²:
· Place and jurisdiction of incorporation and operations, including
governance of internal
affairs, tax system, human resources, etc.
· Jurisdiction of places of physical presence.
· Governing law for contracts with registrars and registries and the ability
to sue and be
sued in a specific jurisdiction about contractual relationships.
· Ability to sue and be sued in a specific jurisdiction for action or
inaction of staff and for
redress and review of Board action or inaction, including as relates to IRP
outcomes and
other accountability and transparency issues, including the Affirmation of
Commitments.
· Relationships with the national jurisdictions for particular domestic
issues (ccTLDs
managers, protected names either for international institutions or country
and other
geographic names, national security, etc.), privacy, freedom of expression.
· Meeting NTIA requirements.
30 At this point in the CCWG-Accountability¹s work, the main issues that
need to be investigated
within Work Stream 2 relate to the influence that ICANN´s existing
jurisdiction may have on the
actual operation of policies and accountability mechanisms. This refers
primarily to the process
for the settlement of disputes within ICANN, involving the choice of
jurisdiction and of the
applicable laws, but not necessarily the location where ICANN is
incorporated:
· Consideration of jurisdiction in Work Stream 2 will focus on the
settlement of dispute
jurisdiction issues and include:
o Confirming and assessing the gap analysis, clarifying all concerns
regarding the
multi-layer jurisdiction issue.
o Identifying potential alternatives and benchmarking their ability to match
all
CCWG-Accountability requirements using the current framework.
o Consider potential Work Stream 2 recommendations based on the conclusions
of
this analysis.
31 A specific Subgroup of the CCWG-Accountability will be formed to
undertake this work.²

As I commented also in another subgroup, I feel that we should start exactly
where we left the different issues in ws1 (i.e. the final report), and not
try to reword, selectively quote and/or reorder what was decided then.

Hope this is helpful

Regards

Jorge 

Von: ws2-jurisdiction-bounces at icann.org
[mailto:ws2-jurisdiction-bounces at icann.org] Im Auftrag von Karen Mulberry
Gesendet: Dienstag, 23. August 2016 17:56
An: ws2-jurisdiction at icann.org
Cc: ACCT-Staff <acct-staff at icann.org>; Thomas Rickert (thomas at rickert.net)
<thomas at rickert.net>
Betreff: [Ws2-jurisdiction] Staff paper on jurisdiction posted

I wanted to let you know that the staff paper on Jurisdiction has been
posted at   https://community.icann.org/x/khWOAw

Karen Mulberry

Multistakeholder Strategy and Strategic Initiatives

ICANN

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