[Ws2-jurisdiction] Staff paper on jurisdiction posted

Tue Aug 23 18:42:27 UTC 2016

Jurisdiction Subgroup Members:

I've copied the staff paper into a new Google Doc.  Here is a link that
will allow anyone with the link to make suggested changes and add
comments.  Please try to sign in to Google so that your name will be
attached to your suggestions/comments.  If you can't (or have an objection
to such things), please annotate your comments with your name so we'll know
who you are.

https://docs.google.com/document/d/1UGRQqP5Bs923nmDYekZn5ZL7-DQc_QSa0GSnFoj4Pn8/edit?usp=sharing

NOTE:  OBSERVERS MAY OBSERVE THE DOCUMENT BUT MUST NOT WORK IN THE
DOCUMENT. IF YOU WANT TO WORK IN THE DOCUMENT, PLEASE CONVERT YOUR STATUS
TO MEMBER.  We'll do this on the "honor system" for now, but if it doesn't
work, we'll have to cancel the link above and send out individual
invitations to each member (and then provide a "view only" link to
Observers).

Best regards,

Greg Shatan
Co-Rapporteur

On Tue, Aug 23, 2016 at 2:20 PM, Greg Shatan <gregshatanipc at gmail.com>
wrote:

> 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
>>
>>
>> _______________________________________________
>> Ws2-jurisdiction mailing list
>> Ws2-jurisdiction at icann.org
>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>>
>
>
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