[Ws2-jurisdiction] RES: ISSUE: US Jurisdiction over ICANN's activities that comply with GAC advice or that are otherwise based on powers or prerogatives recognised onto Governments under ICANN's multistakeholder governance model

[Thiago Braz Jardim Oliveira]

Dear Milton,

Thank you very much for your reply and comments, which I take as constructive.

The idea behind the proposal for recommending the creation of a dispute settlement mechanism, in the ways I suggested, was to ensure that there are accountability mechanisms applicable to ICANN's activities that are to become immune from local courts, according to the other part of the proposal, which I hope you do not object to.

My main concern, precisely, was to propose a solution that meets ICANN's accountability goals, namely by coupling, on the one hand, the necessary immunity from US jurisdiction of ICANN's activities that are subject of GAC advice with, on the other hand, the provision of a compulsory and independent substitute for US courts.

But to the extent that ICANN's existing dispute settlement mechanisms are satisfactory, and I trust you are right, there will indeed be no need to recommend that ICANN establishes new such mechanisms, whose creation, in any case, I agree should result from a bottom-up multi-stakeholder policy development process.

Please be assured of my willingness to come to solutions that enhance ICANN's accountability to the global community, whereby no single individual stakeholder, group or country has the power to unilaterally impact on the operation of ICANN's public global activities.

It is indeed with this spirit that the proposal I submitted, and willingly amend and clarify in view of your remarks, is aimed primarily at recommending that ICANN seeks jurisdictional immunity in respect of the public policy activities it performs in pursuance of GAC advice, so that the courts of no single country, individually, sit in judgment over ICANN's activities that actively involve (all) other countries. The settlement of disputes relating to these activities, in turn, would be left to ICANN's own dispute settlement mechanisms, whose outcome should not be interfered with by domestic courts.

Best regards,

Thiago



________________________________
De: Mueller, Milton L [milton at gatech.edu]
Enviado: terça-feira, 22 de agosto de 2017 18:47
Para: Thiago Braz Jardim Oliveira; ws2-jurisdiction
Assunto: RE: [Ws2-jurisdiction] ISSUE: US Jurisdiction over ICANN's activities that comply with GAC advice or that are otherwise based on powers or prerogatives recognised onto Governments under ICANN's multistakeholder governance model

Thiago
If I understand what you are saying here, I have to totally reject it, and I suspect most others in this group will.
What you seem to be saying here:

Proposed solution: ICANN shall establish a compulsory dispute settlement mechanism, or commit to have recourse to international arbitration, for disputes relating to ICANN's activities that have been the subject of GAC advice or are otherwise subject to Governmental authority as recognized under ICANN's laws.

…is that GAC advice should supersede the normal ICANN bottom up multistakeholder policy development process (BUMP) and be subject to a special dispute resolution procedure that applies to ICANN and GAC alone.

This is a brazen power play to redesign ICANN in a way that transforms it into an intergovernmental institution. It ain’t ever going to happen, Thiago, except perhaps in your dreams.

Let me add that “independent accountability mechanisms” such as the IRP and the empowered community process already exist and no changes need to me made based on jurisdictional issues. Those mechanisms are not subject to arbitrary interference from the USG based on ICANN’s jurisdiction.

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