[Ws2-jurisdiction] Jurisdiction Subgroup: The Path Forward

Wed Aug 16 03:30:38 UTC 2017

As promised, here is the email regarding Subgroup resources, with links now
added for your convenience.

On Mon, Aug 14, 2017 at 9:49 AM, Greg Shatan <gregshatanipc at gmail.com>
wrote:

> All,
>
> With apologies, I am traveling with family this weekend, through tomorrow,
> so I cannot reply individually or in detail until this evening.
>
> As a general matter;
>
> The Jurisdiction Subgroup has a wiki page
>  https://community.icann.org/display/WEIA/Jurisdiction
> All significant documents of the Subgroup should be stored or linked there.
> Each meeting has a wiki page on the Subgroup wiki.  Each page has a
> recording and captioning and/or transcripts for that meeting.
>
> All Subgroup members are expected to review the transcripts or recordings
> for meetings they do not attend.  If captioning/transcripts are unclear,
> they can be clarified by listening to the recording.
>
> All Google Docs have been shared in emails in this group.
> All Google Docs are stored in a Jurisdiction Subgroup folder.  This folder
> has been shared in emails in this group.
>  
> https://drive.google.com/drive/folders/0B90h5wcghspFVHkxWUN1TXJOQzQ?usp=sharing
>
> Most of the significant documents have been referred to and linked in our
> Work Plan, which is in the folder, on the wiki and in emails.
> 
> https://community.icann.org/download/attachments/59643282/RevisedWorkPlanandScheduleforJurisdictionSubgroup.docx?version=1&modificationDate=1491916503000&api=v2
> 
>
https://docs.google.com/document/d/1I0rHFcjW9kWU62lGMLZNbXkyWu4ROZaRT-qJnWzvb-A/edit?usp=sharing

>
> Please use these tools to find documents, meeting information and emails.
> That would be very helpful to our progress.
>
> I will provide links this evening.  I encourage others, unless time does
> not permit, to provide links to documents to which they refer, and I thank
> those who have done so in their correspondence.
>
> Greg
>
> On Mon, Aug 14, 2017 at 3:41 AM, Kavouss Arasteh <
> kavouss.arasteh at gmail.com> wrote:
>
>> dEAR gREG,
>> I have already raised in two communications few questions which are still
>> valid, even though some people  ,in a recent peer communication has
>> surprisingly told me believe that I have not raised any question at all
>> during the entire period, which is unfair to say so as I have been  very
>> active and raised several questions .However, that is their views for which
>> I do not care.  .
>> I may send some explanations in regard with some of them if the time
>> permits.
>> Regards
>> Kavouss
>>
>> On Mon, Aug 14, 2017 at 8:57 AM, <Jorge.Cancio at bakom.admin.ch> wrote:
>>
>>> Dear Greg and all,
>>>
>>>
>>>
>>> Here is my feedback:
>>>
>>>
>>>
>>> -          The “.swiss” input into the questionnaire still stands,
>>> which identifies issues and also some possible solutions. (see attached)
>>>
>>>
>>>
>>> -          In addition, I would like to recall the following inputs I
>>> made to the “influence document” (which I found here:
>>> https://community.icann.org/display/WEIA/Jurisdiction):
>>>
>>>
>>>
>>> “ICANNs main agreements (with registries and registrars) are generally
>>> silent on applicable law. This silence may be construed differently by
>>> different courts in different jurisdictions, although I feel there is a
>>> natural tendency in courts to apply its own laws if the agreement is silent
>>> and there are internal/national rules that tilt into a certain direction.
>>> This means that the choice of applicable law may be limited nowadays in
>>> practice, which in principle may disadvantage stakeholders not familiar
>>> with the implicit choice of law.
>>>
>>>
>>>
>>> At the same time, registry agreements for IGO/Governmental entities have
>>> some flexibilities built in as to applicable law or, to be more precise, as
>>> to conflicts arising from diverging obligations coming from the agreement
>>> with ICANN and the international law obligations. This is reflected for
>>> instance in section 7.16 of the model registry agreement.
>>>
>>> This flexibility could be extended to other registries confronted with
>>> similar conflicts, not only with international law, but also when
>>> confronted with conflicts stemming from national law.
>>>
>>>
>>>
>>> The flexibility could also take the form of a more wider recognition of
>>> freedom to choose the applicable law for the parties in the main agreements
>>> ICANN has.
>>>
>>>
>>>
>>> The material you mention has, at least at first glance, some relevant
>>> rules of choice of law that in a foreigners eye seem to clearly tilt for
>>> the "forum" jurisdiction (for instance the "government interest analysis
>>> test").
>>>
>>>
>>>
>>> But, what are the rules followed by California?
>>>
>>>
>>>
>>> I see that for “contracts” (most relevant to contracting parties) the
>>> second restatement is followed apparently which provides the following:
>>>
>>>
>>>
>>> "d.Contract: In the first instance, the courts must give effect to the
>>> law chosen by the parties. In the absence of any such agreement, the courts
>>> are directed to the “significant relationship” test of Section 6.
>>> Restatement (Second) of Conflict of Laws § 188. The contacts to take into
>>> account in determining those principles are:
>>>
>>> i.the place of contracting,
>>>
>>> ii.the place of negotiation of the contract,
>>>
>>> iii.the place of performance,
>>>
>>> iv.the location of the subject matter of the contract, and
>>>
>>> v.the domicile, residence, nationality, place of incorporation and place
>>> of business of the parties."
>>>
>>>
>>>
>>> It would be interesting to know how these contact points are construed
>>> in the relation between ICANN and its contracted parties, i.e. what the
>>> place of contracting is, the place of negotiation, place of performance,
>>> etc. - how they are intended to be construed by the contracting parties and
>>> what have been the actual analysis (if any) in the cases had up to today in
>>> disputes.
>>>
>>>
>>>
>>> For "torts" (I guess including cases brought for damages by materially
>>> harmed parties that are not contractually bound to ICANN) the mentioned
>>> "governmental interest analysis" seems to apply ("California uses this test
>>> in determining the law applicable to tort claims.").
>>>
>>>
>>>
>>> This test means that "the law of the forum is presumed to apply unless a
>>> party demonstrates otherwise."
>>>
>>>
>>>
>>> I feel this could be seen as a significant tilt.
>>>
>>>
>>>
>>> *Experiences on how these rules (both on contracts and torts) apply in
>>> practice could be of interest and could be contrasted with ICANN, and
>>> registries and registrars (and other parties) based in other jurisdictions.
>>> That fact-finding exercise would also allow us to see whether and in what
>>> instances that "tilting" occurs.*
>>>
>>>
>>>
>>> *A similar fact-finding should be done for what “applicable law” applies
>>> in internal mechanisms (such as the IRP).*
>>>
>>>
>>>
>>> 2)      Making sure that the hearings of the IRP are location-neutral
>>>
>>>
>>>
>>> 3)      In the “multiple layers” doc, under “venue”, I had identified
>>> the following issues and solutions:
>>>
>>>
>>>
>>> “Under venue or venues: multiplicity of venues and of providers of
>>> dispute resolution mechanisms (be it judicial or arbitration).
>>> Flexibilities as to standards, election of providers, language of
>>> proceedings, freedom to choose for the parties.]“ and “I guess that under
>>> “venue” we would need to consider the IRP and other internal redress
>>> mechanisms and how well they  address the needs of a global stakeholder
>>> community, in terms of their composition, the language of proceedings, the
>>> venue(s), the providers, etc.].”
>>>
>>>
>>>
>>> I may have missed other important points made before, but I’m sure
>>> Secretariat could help in collating all our essential inputs.
>>>
>>>
>>>
>>> Kind regards
>>>
>>>
>>>
>>> Jorge
>>>
>>>
>>>
>>>
>>>
>>> *Von:* ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounc
>>> es at icann.org] *Im Auftrag von *Greg Shatan
>>> *Gesendet:* Samstag, 12. August 2017 01:13
>>> *An:* ws2-jurisdiction <ws2-jurisdiction at icann.org>
>>> *Cc:* Thomas Rickert <thomas at rickert.net>
>>> *Betreff:* [Ws2-jurisdiction] Jurisdiction Subgroup: The Path Forward
>>>
>>>
>>>
>>> Jurisdiction Subgroup Members,
>>>
>>>
>>>
>>> As explained by Staff at our last meeting on 9 August, we have until *11
>>> October* to submit a draft set of recommendations to the Plenary for
>>> consideration as a first reading if any such recommendations are to be
>>> accepted by the Plenary, published for Public Consultation and included in
>>> the Final WS2 Report.
>>>
>>>
>>>
>>> In other words, we have about *8 weeks* to develop a draft set of
>>> recommendations and come to consensus on these.
>>>
>>>
>>>
>>> Obviously, given this time-frame, we have to accept that we will not be
>>> able to address all issues. In fact, the only realistic approach, if we
>>> want to deliver any recommendations, is to pick a handful of issues (2 to
>>> 4) on which we can all agree and for which we believe we can propose
>>> recommendations that will achieve consensus.
>>>
>>>
>>>
>>> I remain optimistic that we can do this if we can agree, meaning
>>> everyone will have to compromise, to select this limited number of issues
>>> over the next very few weeks and work diligently at meetings and on the
>>> list to develop recommendations for these.
>>>
>>>
>>>
>>> To reach this objective I would propose the following approach:
>>>
>>>
>>>
>>>    - *Each participant should pick one issue which they believe is in
>>>    scope for us and post that issue to the list prior to our meeting of 23
>>>    August. More specifically:*
>>>
>>>
>>>    - *Issues should be very specific -- avoid open-ended, abstract or
>>>       omnibus issues*
>>>       - *Issue description should be succinct -- 12 standard lines
>>>       maximum*
>>>       - *Proposed solutions – if you have a possible solution or
>>>       recommendation which should be considered, please include it (again, being
>>>       succinct).*
>>>       - *Put your issue in a new email (not a reply), with the subject
>>>       ISSUE: [name of issue]*
>>>       - *The sooner, the better*
>>>
>>> I look forward to discussing this proposal at our next meeting of *16
>>> August* and I would encourage participants to comment on this proposal
>>> in response to this email prior to that meeting.
>>>
>>>
>>>
>>> Greg
>>>
>>> _______________________________________________
>>> Ws2-jurisdiction mailing list
>>> Ws2-jurisdiction at icann.org
>>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>>>
>>>
>>
>
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