[Ws2-jurisdiction] [CCWG-ACCT] [Ws2-staff_acct] Notes, recordings, transcript for WS2 Jurisdiction Subgroup Meeting #6_ 05 October 2016
parminder
parminder at itforchange.net
Thu Oct 6 14:56:24 UTC 2016
Hi All,
Having volunteered to be a participant in this group, first of all I
must apologize for my absence over the last many weeks - I was on a long
vacation and only recently came back.
I did not attend yesterday's meeting because I hadnt read the exchanges
on this list and the transcripts of the previous meetings - thought it
inopportune to participate without doing so. Having done it now, allow
me to share some comments.
(1) Regarding multiple layers of the 'jurisdiction issue':
The main concern historically, and also to me, under the 'jurisdiction
issue' has been of application of 'public law' of one country (including
the authority of its various executive agencies) to the critical global
infrastructure that ICANN manages. It is not just about 'private law',
which has always been much less of a problem. Unlike 'private law',
there is no choice with respect to 'public law', it is compulsory and
backed by the full coercive force of the state.
I am not sure where it fits in the table of jurisdictional layers
circulated by Greg, but probably in the 'jurisdiction of incorporation'.
In the plenary elist discussion, I had illustratedvarious problems with
the application of US public law (including the authority of its various
executive agencies) to ICANN. I do not want to repeat them here. My
question to the group, and specifically its chairs, is; are we
considering this issue of application of US public law to ICANN, and the
problems that it may cause with respect to its policy processes, and
being able to appropriately carry out its global governance role?
(2) On the other much discussed issue of 'gap analysis':
I completely agree with those who have said here that with respect to
'whether Californian law has any significant gaps regarding appropriate
and satisfactory carrying out of new accountability processes' there
really is not much to discuss. These processes were specifically
constructed out of the possibilities contained in Californian law, by
experienced legal experts, and repeatedly analysed and tested by them,
and then by others.
Is there anyone here who seriously thinks that there could be gaps with
regard to Californian law in operationalising the new accountability
processes? I really want to know. Let us spend time only on such issues
where there is some real, stated concern. And if there is none, as I
suspect in this case (happy to be corrected, but with a precise
statement of concern), lets move on and not waste precious time.
The focus of 'gap analysis' should be elsewhere. Our early guiding
documents for this WG
<At+this+point+in+the+CCWG-Accountability%92s+work,+the+main+issues+that+need+to+be+investigated+within+Work+Stream+2+relate+to+the+influence+that+ICANN%92s+existing+jurisdiction+may+have+on+the+actual+operation+of+policies+and+accountability+mechanisms.>says
" 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."
IMHO it is not so much the influence of ICANN's existing jurisdiction on
"accountability mechanisms" that needs to be probed (though happy to
hear the contrary case with clear statement of concerns and issues).
What is needed is to examine the influence of ICANN's existing
jurisdiction as on "actual operation of policies".
Accordingly, let me give a very brief but illustrated outline of the
kind of gaps, issues and concerns that come up here.
A US court deciding that .xxx delegation violates US competition laws,
and is therefore nullified, directly impacts "actual operation of ICANN
policies", in the sense that though the current delegation of .xxx is as
per ICANN policies it cannot really be operationalised.
Similar interference with "actual operation of ICANN policies" could be
caused by some new action by the US Office of Foreign Assets Control.
Or, of the FCC having a rethink some time later (as it did in
reclassification of Internet as title 2) that it needs to reverse its
forbearance on Internet addressing issues. Or, US Customs forcing ICANN
to seize the gTLD of a Spanish sports streaming company or of an Indian
generic drug company for alleged being foul of US intellectual property
standards (even when the primary business of these companies is not in
the US), and so on..........
I think these are the gaps in the current jurisdictional structure
around the ICANN which (adversely) influences its "actual operation of
policies". These are the sort of things that are most salient vis a vis
the jurisdiction issue, which IMHO we should be discussing.
(The issue of jurisdiction as related to the application of private/
contract law to various ICANN activities may also be important. But the
likely remedies for possible concerns in this regard are easily agreed
to. I dont think there are any differences here about it. If there
indeed are, I would like to hear them. In fact, to first know the
statement(s) of problem in this regard. )
In short, what I am saying is, lets be clear about the key issues and
problems that this group actually faces, list the clear nature of the
problems, and then seek their possible resolution. And, if they cannot
be resolved, just conclude so.
Hope this is useful.
parminder
On Thursday 06 October 2016 02:45 AM, Yvette Guigneaux wrote:
>
> Hello all,
>
>
>
> The notes, recordings and transcripts for CCWG Accountability WS2
> *Jurisdiction Subgroup, Meeting #6* –
>
> 05 October 2016 will be available here:
> https://community.icann.org/x/RQi4Aw
>
>
>
> A copy of the notes may be found below.
>
>
>
> Thank you.
>
>
>
>
>
> */Kindest Regards,/**//*
>
> */Yvette Guigneaux/*
>
> /Multi-Stakeholder & Strategic Initiative Assistant/
>
> */ICANN |/*/*Internet Corporation for Assigned Names & Numbers*/
>
> /12025 Waterfront Drive, Playa Vista, CA 90094/
>
> /yvette.guigneaux at icann.org <mailto:yvette.guigneaux at icann.org> |
> www.icann.org <http://www.icann.org>/
>
> / /
>
> /
> ------------------------------------------------------------------------
> /
>
> / /
>
> *WS2 - Jursidiction Subgroup Meeting #6 | Wednesday, 05 October 16|
> 13:00 UTC***
>
> * *
>
> *Notes (including relevant parts of chat):*
>
> * *
>
> *20 participants at the start of the meeting.*
>
> * *
>
> *1. Welcome*
>
> · Greg Shatan: No changes.
>
> *2. Scope of our Work*
>
> · Greg Shatan: I believe we have not yet settled the scope of
> our work. We can look at the EFFECTS of the place of incorporation.
>
> · Jorge Cancio (GAC Switzerland): Is there any new proposal on
> the scope of our work? We still have Annex 12 approved by the
> community in Marrakech - that should be our basis...
>
> · David McAuley: Annex 12, paragraph 30 seems pretty clear: At
> this point WS2’s focus should be on the settlement of dispute
> jurisdiction issues – in that effort we should include confirming and
> assessing not the “gap” but the “gap analysis” –meaning, IMO, the
> provisions we have put in place for dispute resolutions – will they/do
> they work?
>
> · Jean-Jacques Subrenat: For item 3 on our agenda, I will refer
> to a document of which I was a co-author, "Improving Institutional
> Confidence of ICANN", see
> archive.icann.org/en/psc/iic/improving-confidence-ne.pdf
>
> · Jorge Cancio (GAC Switzerland): I feel the discussion on
> scope gets us into a circle... until we do not tackle the issues
> potentially under the scope agreed in Marrakech we won't see whether
> they are or not off-limits
>
> · Tatiana Tropina: It feels quite good - you miss the couple of
> calls due to the tight travel schedule, and here we go - moving
> headquarters, not moving headquarters. My opinion stays the same -
> this is completely out of scope.
>
> · Tatiana Tropina: Jorge, a rare case when I agree with you :D
>
> · David McAuley: Our job is to look at alternatives vs dispute
> resolution period.
>
> · Jean-Jacques Subrenat: 1) In "Improving Institutional
> Confidence" 2008-09, I as one of the co-authors had proposed the
> notion of "additional jurisdiction", rather than "alternative
> jurisdiction". This was important: ICANN Headquarters would not
> change, but jurisdiction could be added for non-contract aspects.
>
> · Phil Corwin: vs arguing if it is in scope - does it make any
> sense discussing this possibility given there are no gaps, we have
> spent much money and time on making this under California law. Looking
> at alternates would be a significant undertaking which would long
> expensive and arduous. Agree with DM vs our scope. I agree with one
> of the previous speakers (David?) that we could agree to distinguish 2
> things, contract-related items (US/California jurisdiction) and other
> items (conflict resolution, etc).
>
> · Cheryl Langdon-Orr (CLO): I agree with David and Phil here
>
> · Greg Shatan: PC and DM seem like logical conclusions. Worth
> noting that the gNSO council has passed a condition on the CCWG budget
> that it could not support work in the CCWG wrt moving ICANN's location
> of incorporation.
>
> · Jorge Cancio: I wish to reiterate relative to scope - we have
> a scope from WS1 recommendation 12 - we should live with the AMBIGUITY
> for the moment. It would be more efficient to go to specific
> discussions and then we will see if there are issues that are out of
> scope. To have this scope beforehand is putting the cart before the horse.
>
> · Greg Shatan: PC's remarks have moved us past scope to the
> realism of moving ICANN. What are your thoughts on this JC.
>
> · Jorge Cancio: This is scope. (car analogy).
>
> · Greg Shatan: since the remit of this group is 9 months it
> would seem unrealistic to think we would change the engine on the car
> in that time. (reads JJS comments from chat because of audio issues).
>
> · Pedro da Silva: My comment is in line with JC - at this point
> of time this does not make sense and it is probable that when we
> complete our analysis of issues we will have the same conclusion but
> it will be stronger -so we should not deal with this at this point.
>
> · Finn Petersen, GAC - DK: Denmark is of the view that it is
> not within our scope to recommend moving ICANN’s Place of
> Incorporation or Headquarters Location from California. But if anybody
> can point to potential problems, we might look into means to address
> such problems without changing ICANN’s place of incorporation.
>
> · David McAuley: As a member of IRP there are issues that are
> related to IRP and touch on Jurisdiction.
>
> · Jorge Cancio (GAC Switzerland): @David: thanks, hope that we
> keep efforts in parallel well coordinated...
>
> · Greg Shatan: straw vote for this or not.
>
> · Tijani Ben Jemaa: uncomfortable with this.
>
> · Jorge Cancio (GAC Switzerland): For the reasons given I step
> away from such a straw poll
>
> · Greg Shatan: many of our participants are arguing for this
> which is why I am bringing this up. Many green ticks no objections.
>
> · Jean-Jacques Subrenat 2: @Greg: I agree that "moving the
> headquarters out of California" is not an urgent matter. We should
> examine what ADDITIONAL jurisdictions could achieve, for specific
> purposes.
>
> · Greg Shatan: We have now covered points 2 and 3 in the
> agenda. Let us move to item 5.
>
> *3. Is the Possibility of Moving ICANN’s Place of
> Incorporation or Headquarters Location from California in Scope?*
>
> · (see previous point)
>
> *4. Confirming and Assessing the Gap *
>
> * Analysis*
>
> *a. “Gap” analyzed in Work Stream 1*
>
> *b. Result of Gap Analysis in Work Stream 1*
>
> *c. How should we confirm the WorkStream 1 *
>
> * Gap Analysis?*
>
> · *(Skipped)*
>
> *5. Multiple Layers of Jurisdiction *
>
> · Greg Shatan: Presentation of the slide on Multiple Layers.
>
> · Jean-Jacques Subrenat: (continuing issues) Multiple layers is
> interesting but what are the purposes of having additional
> jurisdictions (additional vs alternate). Second remark (dropped audio),
>
> · Greg Shatan: Why are we not using Adobe audio JJS - most use
> it for visual but audio is on phone because of quality issues. Any
> comments on the slide?
>
> · Pedro da Silva: This is a good start. and how we should start
> our work. Would like a week to comment on this to see if we need to
> add to this. After that we could look at each of these as to how they
> affect the work of ICANN.
>
> · Phil Corwin: There is a difference between types of contracts
> - registries and registrars should probably be under US law just for
> uniformity. Other parties such as real estate in other countries is
> another issue.
>
> · Jean-Jacques Subrenat 2: @Greg: I suggest we use "additional
> jurisdictions" to avoid confusion about wanting to change headquarters
> or not. I was also saying it would be useful to examine several tasks
> where an additional jurisdiction would be useful, e.g. hiring people
> outside the US (employment, insurance, taxes).
>
> · Greg Shatan: A third category could be for the choice of law
> for enforcing the decisions of the Empowered Community. Encourage
> everyone to read JC's email. Contracts with contracted parties are
> silent on choice of law or venue - we should confirm this. Let us look
> and comment on the slide in Google doc for comments. Next meeting
> 1900UTC Monday. Adjourned.
>
>
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