[Ws2-jurisdiction] Issues 1-6 from ".swiss" and JCancio

Tue Aug 22 15:33:51 UTC 2017

Thank you, Jorge.

Greg

On Tue, Aug 22, 2017 at 9:37 AM, <Jorge.Cancio at bakom.admin.ch> wrote:

> Dear Greg,
> please find attached for your ease a compilation of the issues from the
> ".swiss" Registry and those which I had identified before.
> Hope this helps
> Regards
> Jorge
>
> -----Ursprüngliche Nachricht-----
> Von: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-
> bounces at icann.org] Im Auftrag von Jorge.Cancio at bakom.admin.ch
> Gesendet: Dienstag, 22. August 2017 06:25
> An: gregshatanipc at gmail.com
> Cc: acct-staff at icann.org; ws2-jurisdiction at icann.org
> Betreff: Re: [Ws2-jurisdiction] Jurisdiction Subgroup: The (Revised) Path
> Forward
>
> Dear Greg,
> Thanks for this info.
> I've tried myself to include it into the spreasheet but it turned out not
> to work properly for me.
> Nonetheless as I understand, a simple Email was also an accepted means to
> submit the issues which is what I did.
>
> Please rank the issues on the .swiss contribution first and the issues on
> the Email last.
>
> thanks and regards
>
> Jorge
>
>
>
> ________________________________
>
> Von: Greg Shatan <gregshatanipc at gmail.com>
> Datum: 21. August 2017 um 23:38:35 MESZ
> An: Cancio Jorge BAKOM <Jorge.Cancio at bakom.admin.ch>
> Cc: acct-staff at icann.org <acct-staff at icann.org>, ws2-jurisdiction <
> ws2-jurisdiction at icann.org>
> Betreff: Re: [Ws2-jurisdiction] Jurisdiction Subgroup: The (Revised) Path
> Forward
>
> Jorge,
>
> If you want them in the spreadsheet, our method has been to have the
> participants enter their own issues into the list.  Here's the link to the
> Google doc spreadsheet:  https://docs.google.com/spreadsheets/d/
> 1zAMj3Oz8TEqbjauOyqt09Ef-1ada9TrC7i60Mk-7al4/edit?usp=sharing.
> Unfortunately, I do not have the time to enter data for participants, nor
> does our staff support.
>
> If you prefer not to do so, tomorrow, Bernie and I will be collating the
> issues put forward by participants as requested in the Path Forward
> approach.  I assume you want these to be considered your issue
> submissions.  If that is the case, kindly rank the issues you present in
> order of priority as requested in the Path Forward Approach.
>
> Thank you,
>
> Greg
>
>
>
> On Mon, Aug 21, 2017 at 8:35 AM, <Jorge.Cancio at bakom.admin.ch<mailto:
> Jorge.Cancio at bakom.admin.ch>> wrote:
> Dear Greg,
> I just checked the Google Doc and I saw that the issues I have proposed
> are apparently not included, although you had mentioned that the Email
> where I had reiterated these prior issue proposal had "been noted". I would
> therefore respectfully request their inclusion (see my original Email
> attached).
> Thanks and regards
> >Jorge
>
> Von: ws2-jurisdiction-bounces at icann.org<mailto:nces at icann.org> [mailto:
> ws2-jurisdiction-bounces at icann.org<mailto:ws2-
> jurisdiction-bounces at icann.org>] Im Auftrag von Greg Shatan
> Gesendet: Montag, 21. August 2017 05:33
> An: ws2-jurisdiction <ws2-jurisdiction at icann.org<mailto:
> ws2-jurisdiction at icann.org>>
> Cc: acct-staff at icann.org<mailto:acct-staff at icann.org>
> Betreff: [Ws2-jurisdiction] Jurisdiction Subgroup: The (Revised) Path
> Forward
>
> At our 16 August meeting, we discussed the initial "Path Forward" proposal
> and various comments from participants.  We arrived at the following
> approach to produce Subgroup recommendations.
> 11 October Deadline:
>
> .         Based on the overall timeline for Work Stream 2, the Subgroup
> has until 11 October to submit a draft report and set of recommendations to
> the Plenary for first reading.
>
> .         In other words, we have about seven (7) weeks to develop a draft
> set of issues and recommendations and come to consensus on these.
> A Handful of Issues: We will need to select a handful of issues (likely, 2
> to 4) which:
>
> .         Are within our remit.
>
> .         Will result in recommendations that achieve consensus in the
> Subgroup.
> The Challenge: Everyone will have to compromise in order to finalize 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 particular
> issues.
> The Method: Participants should each present one or more issues (with
> proposed solutions) which they believe are in scope for the Subgroup
>
> .         If you present more than one issue, please prioritize them
> (e.g., 1, 2, 3)
>
> .         Post the issue statement(s) to the list by 23:59 on 21 August
> for discussion at our meeting of 23 August.
>
> .         Issues should be very specific -- avoid open-ended, abstract or
> omnibus issues.
>
> .         All proposed issue statements should include one or more
> proposed solutions.
>
> .         Issue and solution descriptions should be succinct -- 12
> standard lines maximum (each).
>
> .         Send your issue statement to the email list or put it on the
> Google sheet:
>
> o   Use a new email (not a reply), with the subject ISSUE: [name of issue].
>
> o   Google sheet is here: https://docs.google.com/spreadsheets/d/
> 1zAMj3Oz8TEqbjauOyqt09Ef-1ada9TrC7i60Mk-7al4/edit?usp=sharing
>
> .  If you put your issue on the Google sheet, notify the email list.
>
> .         If another participant proposes an issue you wanted to propose,
> simply post your support for that issue statement.
>
> Thank you.
>
> Greg
>
>
> ---------- Forwarded message ----------
> From: <Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch>>
> To: <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>>, <
> ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>>
> Cc: <thomas at rickert.net<mailto:thomas at rickert.net>>
> Bcc:
> Date: Wed, 16 Aug 2017 06:56:00 +0000
> Subject: Re: [Ws2-jurisdiction] Jurisdiction Subgroup: The Path Forward
> Dear Greg,
>
> May I kindly request confirmation that you have read this message and will
> take the "issues" I mention on the latest document? (a task where staff
> could certainly lend a hand)
>
> Best 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
> Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch>
> Gesendet: Montag, 14. August 2017 08:57
> An: gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>;
> ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>
> Cc: thomas at rickert.net<mailto:thomas at rickert.net>
> Betreff: Re: [Ws2-jurisdiction] Jurisdiction Subgroup: The Path Forward
>
> 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-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:
>
>      *   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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>
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