[Ws2-jurisdiction] Jurisdiction Subgroup: The Path Forward
parminder
parminder at itforchange.net
Wed Aug 16 10:27:50 UTC 2017
On Wednesday 16 August 2017 10:22 AM, Greg Shatan wrote:
> snip
>
> As for an "original document" that served as a central repository for
> the proposed issues, I'm honestly uncertain what document you are
> referring to. Can you please provide the specific "original issues
> doc" you refer to? That would be helpful.
https://community.icann.org/download/attachments/59643282/InfluenceofExistingJurisdictionsforDisputesonPolicyandAccountability.docx?version=2&modificationDate=1487972465000&api=v2
parminder
>
> Greg
>
> On Wed, Aug 16, 2017 at 12:28 AM, parminder <parminder at itforchange.net
> <mailto:parminder at itforchange.net>> wrote:
>
> Greg
>
> Yes, everyone shd look up the transcripts, and one tries to do as
> much as one can. But one may miss things, and answers to ones
> questions may not even be there.
>
> So, am I to take that you refuse to answer the question about this
> new process where you have disconnected from the earlier process
> of issues framing and begun an entirely new one, with a doc
> containing, as far as I know, completely arbitrarily chosen few
> issues, and not others from the original document?
>
> parminder
>
>
> On Monday 14 August 2017 07:19 PM, Greg Shatan 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
>> 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.
>>
>> 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.
>>
>> 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 <mailto: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
>> <mailto: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
>> <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-bounces at icann.org>
>> [mailto:ws2-jurisdiction-bounces at icann.org
>> <mailto:ws2-jurisdiction-bounces at icann.org>] *Im Auftrag
>> von *Greg Shatan
>> *Gesendet:* Samstag, 12. August 2017 01:13
>> *An:* ws2-jurisdiction <ws2-jurisdiction at icann.org
>> <mailto:ws2-jurisdiction at icann.org>>
>> *Cc:* Thomas Rickert <thomas at rickert.net
>> <mailto: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:*
>>
>> o *Issues should be very specific -- avoid
>> open-ended, abstract or omnibus issues*
>> o *Issue description should be succinct -- 12
>> standard lines maximum*
>> o *Proposed solutions – if you have a possible
>> solution or recommendation which should be
>> considered, please include it (again, being
>> succinct).*
>> o *Put your issue in a new email (not a reply),
>> with the subject ISSUE: [name of issue]*
>> o *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
>>
>>
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>>
>>
>>
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