[Ws2-jurisdiction] More on gap analysis

[Phil Corwin]

It's unfortunate that we even have to consider this: if the community had insisted on the member model in fall 2015 there would be no possible gap between CCWG requirements and California law. But that is water under a bridge that we have burned behind us.

However, the notion that we can pick and choose from various jurisdictions to address supposed gaps between some part of the CCWG requirements and CA law is simplistic. ICANN can only be incorporated in one jurisdiction - there can be no "Chinese menu" approach to selecting this jurisdiction for one function and that jurisdiction for another.

If a purported gap between a particular  CCWG requirement and CA law is identified one cannot simply say that the law of Country X would better suit that function - an analysis must be done of the fit between the entirety of Country X's laws and all the CCWG requirements to see if the totality of the fit is better than California (which is doubtful, as our outside counsel have already advised during WS1 that the designator model accountability framework works within the context of CA law, as it was designed to do). One must also consider the reputation of Country X's judicial system for efficiency and fair judgments under law, as well as whether its legislature might be inclined to alter some aspect of its law if ICANN moves to incorporate there.

One also has to consider that the two new elements of the ICANN structure - the Empowered Community and the PTI - are required to be incorporated in California law by new fundamental Bylaws. So one would also need to analyze what gaps might result from having them interact with an ICANN that is no longer incorporated in CA.

Let's be realistic about what is really required to be analyzed in even contemplating moving ICANN out of California.



Philip S. Corwin, Founding Principal
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From: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of Mueller, Milton L
Sent: Monday, September 26, 2016 12:18 PM
To: Pedro Ivo Ferraz da Silva; 'McAuley, David'; ws2-jurisdiction at icann.org
Subject: Re: [Ws2-jurisdiction] More on gap analysis

I think Pedro makes important points. In particular, I see a compatibility between his conclusion:


*         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.



...and the conclusion of Steve De Bianco that



*         "This WS2 team should look at that gap analysis and confirm the conclusion.  If there are enforceability gaps noted by our lawyers, we should analyze whether those gaps could be closed using ANY form of incorporation in ANY jurisdiction."



In other words, even though WS 1 suggests that there are no major or glaring gaps, this WS 2 needs to review and confirm (or find holes in) that initial (hasty) gap analysis. I think that is a procedure we can all agree on. Although for efficiency's sake I would not want to evaluate "any/every" jurisdiction but only those put forward by informed people as possible alternatives.



--MM

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