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

Thu Aug 25 04:53:29 UTC 2016

Dear Greg

As an answer to some questions from your side in the Google Doc on what my concerns are, I'd like to share on list my answer on my poin, which I feel has been made already several times, both with my initial emails and my comments on the Google Docs.

I feel that the point is clear: the basis for our discussions should be our ws1 agreements, i.e. the text we agreed in annex 12, without changing the order and/or privileging some parts over others.

I think that is a fair starting point and is a good practice.

With this, I intended to avoid what is apparently happening now, i.e. that is that we have already difficulties with agreeing a baseline doc, because the ws1 doc text has been altered therein (reordered and some parts privileged), and staff text (not labeled as their opinions) has been added privileging their views, that has not been discussed or agreed by ccwg, and therefore should be put at a different level.

Starting with agreed text/language is always helpful, especially in sensitive situations/debates.

Hence I feel that the best in order to have a good start would in my opinion to begin with the plane and simple ws1 text (ws1, annex 13, part on "jurisdiction", which I quoted in my first emails).

 On that basis all participants may add their views and opinions, including staff views if they agree with them.

Please consider this as a constructive contribution for helping such a good start and also consider this comments for and in the conference call this evening (European time), which most probably I will miss due to other commitments (for which I apologize in advance).

regards

Jorge

Von meinem iPhone gesendet

Anfang der weitergeleiteten E‑Mail:

Von: <Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch>>
Datum: 23. August 2016 um 18:22:15 MESZ
An: <karen.mulberry at icann.org<mailto:karen.mulberry at icann.org>>, <ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>>
Kopie: <acct-staff at icann.org<mailto:acct-staff at icann.org>>, <thomas at rickert.net<mailto:thomas at rickert.net>>
Betreff: Re: [Ws2-jurisdiction] 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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