[Ws2-jurisdiction] Partial immunity

Mon Aug 21 12:54:08 UTC 2017

Dear all,

I would suggest this group focus on the issues highlighted by Erich on this
thread. I think those are very important.

Regards,
Wale

On Mon, Aug 21, 2017 at 1:23 PM, Schweighofer Erich <
erich.schweighofer at univie.ac.at> wrote:

> 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 <parminder at itforchange.net>
> *Gesendet: *Mittwoch, 16. August 2017 15:01
> *An: *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>
> 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>
> 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 [ws2-jurisdiction-bounces@
> icann.org] im Auftrag von Greg Shatan [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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