[Ws2-jurisdiction] Items for CCWG-Plenary: (1) Place of Incorporation
Greg Shatan
gregshatanipc at gmail.com
Tue Sep 20 14:13:27 UTC 2016
Matthew,
Thanks for your thoughtful contribution.
Greg
On Tue, Sep 20, 2016 at 10:11 AM, matthew shears <mshears at cdt.org> wrote:
> Hi Greg - thanks for this. Much appreciated.
>
> Some quick comments inline.
>
> On 19/09/2016 15:59, Greg Shatan wrote:
>
> 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
>
> I think this needs to be further discussed, and if agreed, there need to
> be very clear parameters on what is and is not in scope
>
> (and perhaps, by extension, the location of ICANN's headquarters).
>
> Don't agree that we should be discussing this issue - as you note below
> WS1 has discussed this and agreed 2 things: 1) that ICANN will continue to
> be HQed in CA; and 2) that it would be possible, through the new bylaws,
> for that to change (at least that is my understanding). If and when this
> becomes an issue it should be discussed then.
>
>
> 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 think these are two "approaches" are not in scope given the above.
>
>
> 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.)
>
> For so long as it is clearly parametered and not a laundry list
>
>
> *(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)?*
>
> Disagree with the notion of "all" - it needs to be limited - and disagree
> with parentheses as noted above.
>
>
> 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.*
>
> Agree with above, subject to (a) being focussed on a limited set of
> "effects"
>
> 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.
>
> Agree, but for so long as surgically focused as noted above
>
>
> 1. 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.
>
> Agree
>
>
> 1. 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.
> 2. 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.
> 3. 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".
> 4. 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).
> 5. 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).
>
> Agree with all of the above.
>
>
> 1. 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.
>
> It is not and should not be part of our work as noted above.
>
>
> 1. Even if we find negative effects
>
> we have to be clear what we mean by "negative" and for whom
>
>
> 1. from ICANN's California incorporation or location, we should start
> with less disruptive and more contained remedial measures.
>
> These will need to be very carefully assessed, if we even propose such
> measures (which I don't think we have agreed to do yet)
>
>
> 1. 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.
>
> Not in scope
>
>
> 1. 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.
>
> Not in scope.
>
>
> 1. 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.
>
> Agree, for so long as we have a very clear and agreed limited set of
> issues that we address.
>
> Thanks Greg!
>
>
> I look forward to all your thoughts.
>
> Greg
>
>
>
>
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>
> --
> --------------
> Matthew Shears
> Global Internet Policy and Human Rights
> Center for Democracy & Technology (CDT)+ 44 771 2472987
>
>
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