[Ws2-jurisdiction] Jurisdiction mandate

[avri doria]

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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