[Ws2-jurisdiction] CCWG Plenary Topic: Gap Analysis

Tue Sep 20 10:39:01 UTC 2016

Dear Mathieu and all

Just to complement this info: attached is the second draft report, also available here: https://community.icann.org/pages/viewpage.action?pageId=53783460. The relevant pages are 121-124.

Specifically as to the “gap assessment” this is what is said in our 2nd draft report (page 124):

“1043 Initial gap assessment based on current CCWG-Accountability proposals:

1044 At this point of the work of the CCWG-Accountability, taking into account the comments received, the following issues have been identified for further investigation:

 Requirement 4 (ability to sue and be sued to enforce Bylaws or accountability mechanisms): while some consider this requirement to be necessary, others would avoid as much as possible the use of any single country’s legal system.

 Trade-off between CCWG-Accountability requirements and options under California law, particularly when discussing the community empowerment model.

 Whether IRP decisions against ICANN would be binding despite local jurisdiction decisions.

 Requirement 3 on governing law for contracts with registrars and registries may require further investigation.

1045 While these issues require further investigation, the CCWG-Accountability has not yet conducted a substantive examination of alternative jurisdictions that would better fit its requirements. While some commenters suggest that incorporation of ICANN under other legal systems, such as Swiss not-for-profit, would be beneficial (yet the basis for their assumption remains uncertain), further analysis and deliberation is needed on a fact-based approach to be entertained during Work Stream 2.

1046 Next steps

1047 Consideration of jurisdiction in Work Stream 2 will include:

 Confirming and assessing the gap analysis, clarifying all concerns regarding the multi-layer jurisdiction issue.

 Identifying potential alternatives and benchmarking their ability to match all CCWG-Accountability requirements them with the current framework.

 Consider potential Work Stream 2 recommendations based on the conclusions of this analysis.

1048 The timeline considered for this work is consistent with the overall approach for Work Stream 2. A specific subgroup of the CCWG-Accountability will be formed and, while reporting to the CCWG-Accountability as a whole, tasked to undertake the steps described above. Two periods of public comments are envisaged, around ICANN55 and ICANN56. Recommendations will be submitted by ICANN57.„

Best

Jorge

Von: Mathieu Weill [mailto:mathieu.weill at afnic.fr]
Gesendet: Dienstag, 20. September 2016 10:09
An: Cancio Jorge BAKOM <Jorge.Cancio at bakom.admin.ch>; gregshatanipc at gmail.com; ws2-jurisdiction at icann.org
Betreff: RE: [Ws2-jurisdiction] CCWG Plenary Topic: Gap Analysis

Your memory is excellent Jorge,

I have checked my records and found this working documents. Some parts of the document were later integrated into the 2nd report late July.

Thanks for digging this out ! Certainly the closest we got to a “gap analysis”

Best
Mathieu

De : Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch> [mailto:Jorge.Cancio at bakom.admin.ch]
Envoyé : mardi 20 septembre 2016 09:55
À : gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>; ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>
Cc : mathieu.weill at afnic.fr<mailto:mathieu.weill at afnic.fr>
Objet : AW: [Ws2-jurisdiction] CCWG Plenary Topic: Gap Analysis

Dear Greg

If I’m not mistaken some discussion on the „gap analysis“ took place in the CCWG under the leadership of Mathieu in July 2015 – perhaps he may point us to relevant documents where this was further elaborated…

Regards

Jorge

Von: ws2-jurisdiction-bounces at icann.org<mailto:ws2-jurisdiction-bounces at icann.org> [mailto:ws2-jurisdiction-bounces at icann.org] Im Auftrag von Greg Shatan
Gesendet: Dienstag, 20. September 2016 06:57
An: ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>
Betreff: [Ws2-jurisdiction] CCWG Plenary Topic: Gap Analysis

All,

As mentioned in my prior email, we discussed seeking clarification from the CCWG Plenary regarding the Annex 12 statement that the Jurisdiction work should include "confirming and assessing the gap analysis." The statement does not include any further identification of the gap analysis or its results.

To the best of our knowledge, there is no analysis done in WS1 that was called a "gap analysis" in so many words.  Our rough interpretation is that this refers to the (implicit?) determination that there were no significant gaps in the accountability proposals resulting from ICANN's current jurisdictional framework.  However, clarifying (or correcting) this would be helpful.  To bring this back to the CWG Plenary, I would propose the following question:

The scope of the Jurisdiction topic in Annex 12 includes "confirming and assessing the gap analysis."
1. Can the CCWG Plenary identify the "gap analysis" referred to?
2. If there was no formal gap analysis, is it correct to assume that this refers to a determination that there were no significant gaps in the WS1 accountability proposal resulting from ICANN's current jurisdictional framework?

Greg
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