[Ws2-jurisdiction] Our work so far, and a way forward

[Greg Shatan]

All,

In order to move forward, and based on the discussions so far, I suggest
the following approach.

First, we should continue the current approach of defining and refining the
various layers of jurisdiction, and I encourage you all to go to the Google
doc and add your views.  https://docs.google.com/
document/d/1oE9xDIAJhr4Nx7vNO_mWotSXuUtTgJMRs6U92yTgOH4/edit?usp=sharing

Second, we won't investigate changing ICANN's headquarters or incorporation
jurisdiction at this time.  However, it's not off the table -- if we
identify an issue during our work and we can't find a less drastic way to
deal with that issue, we will revisit this point at that time.  We can then
revisit the concerns that people have raised regarding such a
recommendation in the context of a particular issue.

Third, we should put aside "confirming and assessing the gap analysis" for
the moment.  There is still a diversity of views on what this "gap
analysis" was and what we need to do to confirm and assess it.  As a
result, our time has been spent discussing the parameters of the
assignment, rather than working on the assignment itself.  I believe that
we will be better able to define the scope of this item and move to
substance, if we spend some time looking at the substance of an issue that
is clearly within our scope.

After we finish clarifying the multiple layers of jurisdiction, we should
move to an issue that is clearly within our scope -- something we have to
do.  That way we can move to the substance of the issue and not spend a lot
of time on "scope."

An issue that is clearly within our scope relates to ICANN's jurisdictions
for settlement of disputes (i.e., venue and choice of law).  There should
not be any question that this is within the scope of our group (Annex 12
refers to this as the "focus" for our group).  Based on Annex 12, this
involves looking at: "The influence that ICANN’s existing jurisdiction"
relating to resolution of disputes "may have on the actual operation of
policies and accountability mechanisms." I suggest that we examine this
"influence" and determine what this "influence" is.  Our work looking at
venue and choice of law in the "multiple layers of jurisdiction" will help
us in this task.

A note on process -- it is very important that we focus on creating written
material. In our calls, we should be working on and working from these
written materials. Ultimately, these writings will feed into our
deliverable.  Put another way, you should focus your contributions on
adding to the drafts (currently, the "layers of jurisdiction" document),
rather than on relying solely on oral interventions in our calls -- after
all we have 168 hours in a week, and only 1 hour for our call.

I look forward to our upcoming call.

Best regards,

Greg
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