[Ws2-jurisdiction] Items for CCWG-Plenary: (1) Place of Incorporation

[Schweighofer Erich]

Dear Greg,

well done. I agree that the present legal framework on ICANN is best placed in California. The main argument should be the favourable jurisdiction to ICANN’s work, in particular respecting its special status and the autonomy. As long as (“solange” in German) this situation is as it is, no change is necessary. There may be areas of ICANN work that can better located in other jurisdictions, more appropriate to the needs of ICANN. Switzerland – and also Austria – are more flexible concerning privileges and immunities, e.g. offering higher autonomy. This aspect should be also discussed in ws2 jurisdiction.

Best regards,
Erich Schweighofer, Professor, University of Vienna

Von: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounces at icann.org] Im Auftrag von Greg Shatan
Gesendet: Montag, 19. September 2016 21:59
An: ws2-jurisdiction at icann.org
Betreff: [Ws2-jurisdiction] Items for CCWG-Plenary: (1) Place of Incorporation

All,

Based on our discussions, there were two topics identified as ones to be brought back to the CCWG Plenary, which is meeting tomorrow.

These topics relate (i) examining ICANN's place of incorporation and (ii) the Gap Analysis that we have been tasked to "confirm and assess."  I'll deal with the gap analysis issue in a separate email.

This email deals with how (and whether) to approach the effects of ICANN's place of incorporation.

Both in this group and in the CCWG generally, we have heard a range of views on how (and whether) to examine the effects of ICANN's place of incorporation (and perhaps, by extension, the location of ICANN's headquarters).

On the one hand, there have been calls for a declaration that ICANN will forever be incorporated and located in California, putting issues relating to ICANN's place of incorporation/location out of scope.

On the other hand, there have been calls to have any effects arising from ICANN's place of incorporation/location and all outcomes/recommendations relating to those effects be open to this group.

I don't see sufficient support for either of these positions in the subgroup in their current form, so we need a way forward capable of broad support in this subgroup and the CCWG.  Since we have not been able to resolve this matter in our group, this seems like an appropriate topic to bring back to the CCWG Plenary for clarification and guidance.

In looking for a way forward, I suggest we seek answers to two questions, based on the two positions above:

(a) Should the subgroup (and thus the CCWG) be free to examine the effects of all "layers" of ICANN "jurisdiction," including ICANN's place of incorporation and location? (Based on other aspects of Annex 12, this probably should focus in particular on the effect on "actual operation of policies and accountability mechanisms" and on settlement of disputes, but we don't need to make that scope decision quite yet.)

(b) Should the subgroup (and thus the CCWG) keep open all options for  outcomes/recommendations arising from this examination (including changing ICANN's place of incorporation and/or location)?

We need an outcome that is likely to get broad support in the subgroup and the CCWG and allow us to move forward with our work.  At the same time, we need to recognize that not everyone will be pleased, but pleasing everyone is impossible.

After reviewing the various points and positions raised in the subgroup and CCWG, I would like to put forward the following answers as a "strawman":

(a) The subgroup should be free to examine the effects of ICANN's current place of incorporation/location.
(b) The subgroup should eliminate the possibility that we will recommend to CCWG that ICANN be moved from California, either as a place of incorporation or as a physical location.

I've based this suggestion on an examination of issues raised by various participants during our work, listed below.  You should all respond with your thoughts on the appropriate response to these questions, and feel free to provide any additional inputs for consideration.

  1.  Our remit is to look at all the "multi-layers" of jurisdiction, not only at selected layers.  All jurisdictional issues relate back to rules of law and choices of law, and the influence of California law and location is relevant to all of those discussions.  As a result, failure to even look at any aspect of the effects (positive or negative) of ICANN's place of incorporation and location would be seen an incomplete exercise of the remit of this group.
  2.  A declaration in perpetuity is inappropriate. ICANN, as a private corporation, should be free to consider changes to any aspect of its Bylaws and Articles, according to the methods chosen for its governance.  We have revised and reformed these methods, and we should be able to use them in the future for all topics, even this one.
  3.  The CWG-Stewardship and CCWG-Accountability proposals (and their implementation) depend on California as the place of incorporation. For example, ICANN's Bylaws are based in California law and the Bylaw revisions (now accepted by ICANN but waiting to be made effective) are similarly based on California law.
  4.  More particularly, the Empowered Community is based on the "designator" concept in California non-profit law and on the treatment of "unincorporated associations" (particularly, the personhood of unincorporated associations) as set forth in California law.
  5.  It has been suggested that changing ICANN's place of incorporation would disrupt the proposed changes just as they are  being put in place and essentially "re-open" Work Stream 1.  This would undo a great deal of work, throw the Accountability mechanisms and other changes into uncertainty, and open the door to massive attempts at "re-trading".
  6.  We should allow the new accountability mechanisms an appropriate amount of time to function "as is" before even considering a jurisdictional change that would have across-the-board effects on these mechanisms and other recommended reforms (and require another CCWG, or at least WS3).
  7.  The revised (and current) Articles of Incorporation state that ICANN "is organized [i.e., incorporated] under the California Nonprofit Public Benefit Corporation Law for charitable and public purposes."  Changes to the Articles should be approached with the same level of gravity as changes to the Fundamental Bylaws, which are not to be taken lightly.  Any change will require the same process as changes to the fundamental Bylaws (i.e., 75% vote of Board and convening Empowered Community and getting EC approval).
  8.  Arriving at a choice of another jurisdiction for these purposes would likely require a multi-year effort to accomplish, which by itself is outside the scope of Work Stream 2, which essentially has a one-year lifespan.  We need to consider whether this is a practical outcome.
  9.  Even if we find negative effects from ICANN's California incorporation or location, we should start with less disruptive and more contained remedial measures.  It would be premature to move past more straightforward options and recommend the drastic outcome of moving ICANN.  If more modest options are tried and they fail to resolve a fundamental problem, then it would be appropriate for some future WG (or the EC) to suggest bigger changes.
  10. Aside from the governance issues, moving ICANN completely out of California (and possibly the US) would require an immense amount of work for the corporation, staffing problems, etc.
  11. Examining and resolving issues such as venue and providers of dispute resolution mechanisms, language of proceedings, applicable law(s) for disputes: addressing the laws of jurisdiction where contracting parties are established (including potential conflicts between commitments derived from ICANN policies and such national legal frameworks), and internal redress mechanisms does not require the ability to change ICANN's place of incorporation or location.

I look forward to all your thoughts.

Greg


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