[Ws2-jurisdiction] Fwd: [CCWG-ACCT] Fwd: FW: Adopted motion

Sun Oct 9 22:36:54 UTC 2016

Milton;

With all respect there was no confusion within Council when it unanimously adopted this Resolution, though there does seem to be some confusion in other quarters about what it actually says.

A prior version of the Resolution could have been interpreted as stating a position that budgetary reasons foreclosed the possibility of the Jurisdiction subgroup even considering ICANN organizational jurisdiction. The adopted version instead states the Council's consensus opinion that such exploration could bust the budget, is untimely, and could be destabilizing. But the Resolved clause immediately prior to the one you quote makes clear that budget increases can be contemplated if the Legal Committee deems them "essential to completion of the CCWG's work and objectives". In short, Council has stated an opinion, but that opinion does not bind the subgroup or the legal Committee.

While I agree with your observation that most WS2 subgroups "do not need to hire high-priced lawyers to explore" their issues, Jurisdiction is a conspicuous exception in that any decision to look at alternatives to US incorporation for ICANN would require extensive review of relevant law and regulation in other potential jurisdictions, and any decision to implement a change would likely require significant Bylaws revision.

The Jurisdiction subgroup remains free to do as it wishes, although based upon my participation in recent meetings it seems to have its own growing consensus that ICANN's own jurisdiction is not a priority issue.

Best, Philip

Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/Cell

Twitter: @VlawDC

"Luck is the residue of design" -- Branch Rickey

From: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of Mueller, Milton L
Sent: Wednesday, October 05, 2016 12:49 PM
To: ws2-jurisdiction at icann.org
Subject: Re: [Ws2-jurisdiction] Fwd: [CCWG-ACCT] Fwd: FW: Adopted motion

Colleagues:
I respectfully suggest that the Council was confused when it passed this resolution. Indeed, I think this is devolving into one of those arguments where people talk past each other. As so often happens in ICANN, people are confusing procedural and budgetary determinations with substantive conclusions, or perhaps using the former to foreclose decisions about the latter.

Let me take up this aspect of the GNSO resolution:
5.      It is the position of the GNSO Council that revisiting the jurisdiction or organization of the ICANN legal entity, as established by CCWG-Accountability Work Stream 1,  would not likely be supported by this projected budget and, further, that such inquiry should not be undertaken at this time because the new accountability measures are all premised and dependent on California jurisdiction for their effective operation, and any near-term changes in organizational jurisdiction could be extremely destabilizing for ICANN and its community.
First, the issue of whether we can afford it is circular. If you don't think it needs to be done, then you don't think it is worth spending the money. But the simple fact is that we do not need to hire high-priced lawyers to explore this issue in some depth, a lot of volunteer work takes place in ICANN WGs. Only when we are re-drafting bylaws or actually moving to another jurisdiction do you need the lawyers. And we are unlikely to decide that. There are many ways to economize on the exploratory process.

Second, no one is talking about "near term changes in organizational jurisdiction." This is a complete red herring. The whole point of the WS1 and WS2 distinction was to separate those things that needed immediate implementation at the time of the transition and those things that don't. Jurisdiction was deemed to be one that could be put in WS 2; i.e., not immediate. Now that the transition is complete we have time to explore the implications of Calif jurisdiction at our leisure. I don't see the rush.

Third, if people think it makes no sense to alter California jurisdiction then they can argue that point in this working groups' deliberations, and if it really does command a consensus, as people are asserting, then that consensus will be quickly realized and that will be that. I myself think that position will easily win the day. However, deciding this in a pre-emptive manner that does not allow the other side to be aired is bad for ICANN's long-term legitimacy and stability. If we have a full and fair discussion of the issue and decide to remain in California, the issue is settled, forever. If we sweep the issue under the rug and do not allow that consensus to form, then the issue continues to fester.

--MM

From: ws2-jurisdiction-bounces at icann.org<mailto:ws2-jurisdiction-bounces at icann.org> [mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of Phil Corwin
Sent: Tuesday, October 4, 2016 7:11 PM
To: parminder <parminder at itforchange.net<mailto:parminder at itforchange.net>>; ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>
Subject: Re: [Ws2-jurisdiction] Fwd: [CCWG-ACCT] Fwd: FW: Adopted motion

The GNSO Council position is responsible, not reprehensible.

And what you label "the incumbent system" is a very large swath of the ICANN community - with this Resolution representing the consensus position of the contracted parties, commercial stakeholder group, and non-commercial stakeholder group. Accountability at any given moment means accountability to the community as it exists at that point in time.

The GNSO position is advisory and not controlling. Under the adopted budget control processes for WS2 CCWG-ACCT matters, it is the Legal Committee, subject to subsequent approval by the Board (which has fiduciary duties to the corporation), that passes judgment on requests for expenditures on outside counsel advice, as well as any request to increase the overall budget beyond the $1.4 million allocated at present.

The Jurisdiction subgroup is presently exploring whether there are any 'gaps' between the accountability enforcement powers and California law, with  a developing consensus that if there are not then exploring alternate organizational legal jurisdictions for ICANN would not be a prudent use of time or money. (And there are unlikely to be any gaps of significance, given the extreme vetting on this question by outside counsel at the time the measures were developed.)

Anyone is free to participate in the Jurisdiction subgroup and make their best case on any issue being considered by it. But no one is guaranteed a consensus that supports their favored outcome. That's democracy, not hegemony.

Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/Cell

Twitter: @VlawDC

"Luck is the residue of design" -- Branch Rickey

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