[Ws2-jurisdiction] RES: More on gap analysis

[Pedro Ivo Ferraz da Silva]

Dear David and colleagues,



Please find below the reasons why I believe that a gap analysis should be done within WS2:



·         The idea of a gap analysis emerged during jurisdiction related discussions prior to the CCWG-Accountability meeting in Istambul (March/2015). In an email a week before the meeting (March 201th), I wrote:



"[...] 3) The CCWG has agreed on a working methodology which makes a clear separation between requirements and implementation. For Brazil, 'requirements' are understood as those accountability objectives required by the community and 'implementation' are the specific mechanisms that needs to be in place in order to accomplish the requirements previously defined. While specifying those mechanisms, the CCWG should also clearly indicate those cases when requirements are partially met, either because the group wasn't able to conceive a better structured process to that date or because ICANN's current legal presence imposes certain restrictions. This kind of clarity is in line with principle of 'transparency' under which this group operates and will be essential for the following work of the CCWG.



4) For the reason above, the legal analysis to be provided by the external law firm and the expert's group should already include considerations on jurisdictional limitations and options. Again: in that way, the CCWG will be transparent by showing the eventual limitations of its recommendations and will be able to provide important input for WS2 or other future accountability recommendation work."



·         Following this initial debate, a formal discussion (well remembered by Jorge Cancio) was led by Mathieu Weill during July 2015 and concluded, inter alia, in what was called a "initial gap assessment" (document attached):



"CCWG-Accountability found the association of all its requirement under California Law possible, but challenging, and requiring some forms of trade-offs, especially with regards to the Community empowerment model"



"Some concerns were raised with regards to the possibility that IRP decisions might prevail over local jurisdiction decisions. [TO BE REFINED ONCE WE FINALISE IRP PROPOSAL]"



·         The conclusions above were made based on requirements agreed by that time and clearly indicate that the work should be resumed at a later stage. Although the work of the CCWG evolved and requirements were further enhanced, there is no material evidence that this exercise was resumed before or right after the CCWG concluded its WS1 work.



·         So far, what we have seen were statements made merely on personal capacity indicating that there are no gaps between accountability requirements and implementation. A formal CCWG process, involving the whole group or even a subgroup of members/participant, was never conducted.



·         Further to that, I couldn't find any evidence that even the contracted law firms have formally made such a gap assessment.



·         I understand that with the variety of information we have at our disposal (CCWG WS1 report, CCWG mailing archive, law firm memos, etc) some colleagues are tempted to jump into conclusions about the ability of California non-profit law to conform to the CCWG requirements. However, given that this is not a straightforward exercise and stakeholders from distinct geographies and stakeholder groups have diverse viewpoints about it, it is important that a formal and impartial effort  is made so it can be considered legitimate. An informal gap analysis solely based on individual assessments is not likely to be  recognized as a relevant input to the community.


Kind regards,

Secretário Pedro Ivo Ferraz da Silva
Divisão da Sociedade da Informação (DI)
Ministério das Relações Exteriores - Brasil
T: + 55 61 2030-6609

Secretary Pedro Ivo Ferraz da Silva
Division of Information Society (DI)
Ministry of External Relations - Brazil
T: + 55 61 2030-6609


De: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounces at icann.org] Em nome de McAuley, David
Enviada em: sábado, 24 de setembro de 2016 11:00
Para: ws2-jurisdiction at icann.org
Assunto: [Ws2-jurisdiction] More on gap analysis

I would like to respond to Greg's suggestion in the call earlier this week. On the call we discussed the meaning of gap analysis and its possible implications. Greg asked if Pedro and I would separately note on list the points we each had been attempting to make on the call. What follows are my personal views.

The sub-team was addressing the phrase in paragraph 30 of Annex 12 of the CCWG Final Report asking that we give consideration to, "Confirming and assessing the gap analysis, clarifying all concerns regarding the multi-layer jurisdiction issue."

I was/am of the view that the concept of "confirming" recognized that WS1 had in effect performed a gap analysis - the potential gap being whether the accountability measures that were proposed could or could not be applied to, and ultimately enforced against, ICANN.

For example, when we decided in WS1 that we wanted the ability to remove board members we asked Sidley/Adler if that was possible within the California form we were analyzing - designator, not membership. If the answer had been that we could not then a gap would have existed. If it was that we could then we asked counsel to put the provision into appropriate legal language.

We did the same for all accountability measures we wished to put in place, specifically revising the ICANN Mission, enhancing the IRP, and giving the community power/right to:



·         Reject ICANN budgets, IANA budgets, or strategic/operating plans;

·         Reject changes to ICANN's standard bylaws;

·         Approve changes to new fundamental bylaws, Articles, and ICANN's sale or disposition;

·         Remove a director;

·         Recall the entire board;

·         Initiate binding IRP;

·         Reject ICANN Board decisions relating to reviews of the IANA functions, including the triggering of Post-Transition IANA separation; and

·         Right of inspection, investigation.
That, to me, was a gap analysis.

In fact, Annex 12, paragraph 26, noted that WS1 might well have encountered gaps along the way - it recognized the fact that California law does have limits with respect to accountability mechanisms that might be imposed on ICANN. It is that recognition in paragraph 26 that admits a possible gap that we in the sub-team are meant to assess, as I see it.

It is also important to note that our remit to confirm/assess the gap analysis is given to us with two qualifiers in paragraph 30:


·         First, that the main issues that we need to investigate in WS2 "...relate to the influence that ICANN´s existing jurisdiction may have on the actual operation of policies and accountability mechanisms. This refers primarily to the process for the settlement of disputes within ICANN, involving the choice of jurisdiction and of the applicable laws, but not necessarily the location where ICANN is incorporated:" (emphasis added)  and



·         Second, our consideration in WS2 "will focus on the settlement of dispute jurisdiction issues and include..." the act of confirming/assessing the gap analysis that we are engaged in, along with identifying potential alternatives.
I underscored the word "necessarily" in the first qualifier above because it appears consistent with the notion of being contingent - on us closing any potential gap. Our sub-team job is relatively straightforward: have we (WS1) managed to avoid or close such gaps; in other words, are the accountability mechanisms we chose applicable and enforceable? If we have succeeded then I submit that our work is limited to analyzing jurisdiction only insofar as it relates to settlement of disputes.

And that is why our remit to "identify" potential alternatives, also bounded by the two qualifiers, is to examine potential alternatives with our focus being on settlement of dispute jurisdiction.

During the call, Jorge listed in the chat certain portions from the CCWG Second Report mentioning gap analysis (addressing such things as ability to sue/be sued to enforce bylaws and other accountability mechanisms; binding-ness of IRP decisions, and more) and which called for more analysis. I believe that further analysis was done and reflected in the Final Report, which gave us the language we are now addressing.

It is important to look at the sub-team work in context. In my view, incorporation in California has one distinct advantage over other locations as concerns ICANN - for over 18 years it has worked. It would be imprudent to consider a location change absent a material problem stemming from jurisdiction that is incapable of resolution.

Moreover, consideration of an alternative for ICANN's location would entail, per jurisdiction considered, roughly the same investment in time and lawyers' attention that WS1 expended on legal fees. If this sub-team intends to go down that path, something I recommend against, then we need to make sure that we have budget to support such efforts.

So in my view it makes practical sense as well as analytical sense (as performed by the CCWG) for the location issue to be out of scope in WS2 other than as it relates, if at all, to settlement of disputes. As Göran Marby said in last week's hearing , ICANN is committed to remaining domiciled in the US, where it has operated successfully and, among other things, put in place thousands of contracts.

David

David McAuley
International Policy Manager
Verisign Inc.
703-948-4154

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