[Ws2-jurisdiction] Staff paper on jurisdiction posted

[Greg Shatan]

Jorge,

We will copy the staff paper and use that second instance as an editable
document for our work.

Best regards,

Greg

On Tue, Aug 23, 2016 at 12:41 PM, <Jorge.Cancio at bakom.admin.ch> wrote:

> Thanks for this info, Karen.
>
> Perhaps if the doc is put to edit/comment modus, we may benefit from it as
> a basis.
>
> best
>
> Jorge
>
> Von meinem iPhone gesendet
>
> Am 23.08.2016 um 18:32 schrieb Karen Mulberry <karen.mulberry at icann.org<
> mailto:karen.mulberry at icann.org>>:
>
> 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<mailto:Jorge.Cancio at bakom.admin.ch>" <
> Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch>>
> Date: Tuesday, August 23, 2016 at 10:22 AM
> To: Karen Mulberry <karen.mulberry at icann.org<mailto:karen.mulberry at icann.
> org>>, "ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>" <
> ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>>
> Cc: ACCT-Staff <acct-staff at icann.org<mailto:acct-staff at icann.org>>,
> "Thomas Rickert (thomas at rickert.net<mailto:thomas at rickert.net>)" <
> thomas at rickert.net<mailto: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)
>
> “Addressing jurisdiction-related questions, namely: “Can ICANN’s
> accountability be
> enhanced depending on the laws applicable to its actions?” The
> CCWG-Accountability
> anticipates focusing on the question of applicable law for contracts and
> dispute
> settlements.“
>
> And in the “topic development” (starting at point 25):
>
> “25 Jurisdiction
> 26 Jurisdiction directly influences the way ICANN’s 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 ICANN’s 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 "layers”:
> · 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-Accountability’s 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.”
>
> 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> [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<mailto:ws2-jurisdiction at icann.org>
> Cc: ACCT-Staff <acct-staff at icann.org<mailto:acct-staff at icann.org>>;
> Thomas Rickert (thomas at rickert.net<mailto:thomas at rickert.net>) <
> thomas at rickert.net<mailto: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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> Ws2-jurisdiction at icann.org
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