[Ws2-jurisdiction] Partial immunity

Mon Aug 21 12:23:27 UTC 2017

Greg,

the issues are:

  *   Acceptance of ICANN’s decisions in its core competences by international actors, mostly States and Supranational Organisations (e.g. blocking of some gTLDs by States or EU Commission statement not to  accept ICANN decisions in the New gTLD process if it considers such decisions against EU competition law)
  *   Non-interference of international actors in ICANN’s core activities (e.g. “closing” of registrars in some countries due to OFAC decisions; establishing a mostly national internet system)
  *   Securing the enforceability of the multi-stakeholder model and the accountability process (presently by California law and as such so far without alternatives).
  *   Securing the enforceability of ICANN’s registry contracts by choosing the appropriate law and forum
“Partial immunity” as a remedy means that ICANN and the ICANN Community are seeking for necessary exceptions from national jurisdiction, mostly in a case-by-case process (e.g. the OFAC issue). A full immunity arrangement is possible in some countries but difficult to achieve nowadays. For the U.S. jurisdiction, it is impossible because it would close down the enforceability of the multi-stakeholder model and we have to find a new one under international law that may be very challenging.

Best regards,
Erich

Von: parminder<mailto:parminder at itforchange.net>
Gesendet: Mittwoch, 16. August 2017 15:01
An: ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>
Betreff: Re: [Ws2-jurisdiction] Partial immunity

On Wednesday 16 August 2017 06:26 PM, Greg Shatan wrote:
Erich,

Partial Immunity is a remedy.

I described it, in the statement of the issue I raised, which is exemplified in terms of various kinds of ramifications in the docs that are linked (and submitted to the group) and also a longer description of the issue is contained in the 5 points that I recently cut pasted from the old "influence of jurisdiction" doc.. parminder

  Can you describe in somewhat more detail the specific issue you are trying to resolve? That way we can consider the various potential remedies for that issue.

Thanks!

Greg

On Wed, Aug 16, 2017 at 8:38 AM Kavouss Arasteh <kavouss.arasteh at gmail.com<mailto:kavouss.arasteh at gmail.com>> wrote:
Dear Nigel
Thank you very much for your comments. Pls kindly describe your concerns in a more comprehensive manner . What was the unfortunate approach?
Pls kindly recognize that some people residing in those countries under OFAC

sanctions are suffering a lot .we need to think of those people as well internet plays a crucial role in their daily life thus any burden should be shared.ICANN should avoid being politicized.

Regards

Kavouss

On Wed, Aug 16, 2017 at 2:07 PM, Nigel Roberts <nigel at channelisles.net<mailto:nigel at channelisles.net>> wrote:
I must take the opportunity to highlight that a number of ccTLDs may object to any form of immunity for ICANN and/or PTI.

Some of us still remember the early days of ICANN, and while we trust the current management and Board, we do not want there to be a possibility that a future set of incumbents could return that unfortunate approach.

On 16/08/17 12:47, Schweighofer Erich wrote:
Dear all,

I propose to work on the issue on partial immunity. The core functions of ICANN should not be only decided by the multi-stakeholder community, covering legislation, administration and dispute settlement.
States (and International Organisations) should refrain from exercising its concurrent jurisdiction, respecting ICANN's special role and governance model.
As quick and clear solutions are not easily at hand (e.g. unilateral acceptance of immunity by States or a treaty), problems of interference of States should be settled by negotations or judicial dicisions, depending on the relevant jurisdiction (e.g. OFAC). This solution is cumbersome but may result in sufficient immunity of ICANN, being in line of present international policy of restricting immunities for international entities.
Argumentation could be diverse, e.g. granting partial immunity for ICANN's special role or no interference in third party rights. Administrations and courts must accept that only the multi-stakeholder model is the appropriate forum for such questions.

  Best, Erich

________________________________________
Von: ws2-jurisdiction-bounces at icann.org<mailto:ws2-jurisdiction-bounces at icann.org> [ws2-jurisdiction-bounces at icann.org<mailto:ws2-jurisdiction-bounces at icann.org>] im Auftrag von Greg Shatan [gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>]
Gesendet: Samstag, 12. August 2017 01:13
An: ws2-jurisdiction
Cc: Thomas Rickert
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
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