[Ws2-jurisdiction] RES: Staff paper on jurisdiction posted

Wed Aug 24 13:13:12 UTC 2016

Dear all,

I second my colleagues from Spain and Switzerland. 

The text introduced by ICANN staff will be certainly helpful for our debate, but I would too have concerns to consider it as a baseline for our discussion. 
Simply because it hasn't been agreed nor even discussed within the CCWG. I would rather stick to the WS1 report as our starting point and consider additional text prepared by staff as an "ICANN staff contribution" clearly classified as such.

Regards,

Secretário Pedro Ivo Ferraz da Silva
Divisão da Sociedade da Informação (DI)
Ministério das Relações Exteriores - Brasil
T: + 55 61 2030-6609

Secretary Pedro Ivo Ferraz da Silva
Division of Information Society (DI)
Ministry of External Relations - Brazil
T: + 55 61 2030-6609

-----Mensagem original-----
De: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounces at icann.org] Em nome de Perez Galindo, Rafael
Enviada em: quarta-feira, 24 de agosto de 2016 06:18
Para: Karen Mulberry; Jorge.Cancio at bakom.admin.ch; ws2-jurisdiction at icann.org
Cc: acct-staff at icann.org; thomas at rickert.net
Assunto: Re: [Ws2-jurisdiction] Staff paper on jurisdiction posted

Agree. Staff-written paragraphs about e.g. ICANN operational ability should not be the basis for discussions, but left as an annex, if needed. 

We should kick off discussions on the sole basis of the very text agreed by the CCWG by consensus in WS1.

Best

Rafael

De: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounces at icann.org] En nombre de Karen Mulberry Enviado el: martes, 23 de agosto de 2016 18:32
Para: Jorge.Cancio at bakom.admin.ch; ws2-jurisdiction at icann.org
CC: acct-staff at icann.org; thomas at rickert.net
Asunto: Re: [Ws2-jurisdiction] Staff paper on jurisdiction posted

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) 

"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] 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 