[Ws2-jurisdiction] Jurisdiction mandate

[McAuley, David]

Thank you Avri, it is good to check the source documents periodically to recall context and direction.

I stated on the phone that I was not supportive of the questionnaire concept – but as Milton pointed out on the call it was more specific than I thought when first proposed.

Based on what Milton said, my take on this has changed and I think questions asking for first-hand experiences of positive, negative, or neutral experiences based on jurisdictional concerns are fine – I would limit them to experiences dealing with dispute-resolution based issues.

Questionnaire apart, however, I do think that we have a mandate for a narrow approach. I say that because the source documents and the larger context in which we are operating, IMO, direct us there (although the source documents may not be as clear as one would like).

The bylaw basically says look to the Final Report.

On jurisdiction, Annex 12 of the Final Report says much by way of background, and its language regarding “layers of jurisdiction” is really just an acknowledgement. The operative paragraph, in my opinion, is paragraph 30 which begins, “At this point in the CCWG-Accountability’s work, ...”  I think reference to “this point” is recognition that what came before, i.e., solidly grounding the accountability measures on California law, is an important precedent to our work, as it must be.

Paragraph 30 also goes on to say, “Consideration of jurisdiction in Work Stream 2 will focus on the settlement of dispute jurisdiction …”   The gap
analysis and identifying potential alternatives are to take place in that context.

And there is a larger context in which we operate, with two particular aspects that appear quite important.

First, we just spent years and millions of dollars basing ICANN accountability on California law principles. Why would we throw that away? (It’s worth noting as well that California law has demonstrated over 18 years that it actually has allowed ICANN to operate without undo disruption.)

And the second aspect is timing/capacity – we are WS2, not the UN. We can address gaps, if they are found, in dispute-resolution issues stemming from jurisdiction. We cannot grant ICANN immunity or enact a treaty, nor do we have the depth, experience, and time to come up with plausibly based recommendations in such regard.

There are fair questions being raised that are appropriate for other forums – I personally think we, however, should focus on WS2 as constituted in Annex 12.

Best regards,

David

David McAuley
International Policy Manager
Verisign Inc.
703-948-4154

-----Original Message-----
From: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of avri doria
Sent: Tuesday, November 29, 2016 4:06 PM
To: ws2-jurisdiction at icann.org
Subject: [Ws2-jurisdiction] Jurisdiction mandate

Hi,

Much has been said about our mandate.  I went and grabbed the appropriate text from the ByLaws and the Proposal.

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/Bylaws/

277.1.b

(vi) Addressing jurisdiction-related questions, including how choice of jurisdiction and applicable laws for dispute settlement impact ICANN's accountability;

/from Report/

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 eight(1) 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.

        (1) 8. ICANN affirms its commitments to: (a) maintain the
        capacity and ability to coordinate the Internet DNS at the
        overall level and to work for the maintenance of a single,
        interoperable Internet; (b) remain a not for profit corporation,
        headquartered in the United States of America with offices
        around the world to meet the needs of a global community; and
        (c) to operate as a multi stakeholder, private sector led
        organization with input from the public, for whose benefit ICANN
        shall in all events act.

rec 12 line 234

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.

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Language that speaks of choice, applicable laws, and enhancement hardly seems to rest on only understanding the past, a past that was experienced when the current condition of transition had not been achieved. They also do not seem to limit our questions and discussion to the status quo.  Even when speaking of 'existing jurisdiction' it speaks of effects that it "may have".  Not that it has been shown to have in the past. It speaks of "clarifying all concerns" and ïdentifying alternatives".

From my re-reading, neither a narrow based questionnaire nor a narrow approach seem consistent with our mandate or the job we need to get done.


avri



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