[Ws2-jurisdiction] Notes, recordings and transcript for WS2 Jurisdiction Subgroup Meeting # 20 | 9 February 2017

Fri Feb 10 18:10:57 UTC 2017

Hello all,

The notes, recordings and transcripts for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #20 – 9 February 2017 will be available here:  https://community.icann.org/x/SpDRAw
 A copy of the notes and action items may be found below.

Thank you.

With kind regards,
Brenda Brewer
MSSI Projects & Operations Assistant
ICANN - Internet Corporation for Assigned Names and Numbers

Notes: (Including relevant portions of chat):
17 participants at start of call
1.   Welcome
Greg Shatan: No audio only, no changes to SOIs.
2.   Questionnaire
Greg Shatan: questionnaire has been translated into the ICANN languages and should be posted today. We will need to develop a methodology for analyzing responses.
3.   Hypothetical #1
a.   https://docs.google.com/document/d/1W3U9-NnmO2Kk3d_qd4ApMcDKf5VcBMf93An6zg2VJlg/edit?usp=sharing
Greg Shatan: hope everyone will participate in this exercise. Any comments.
Parminder: The critical part of this is the court that orders ICANN to change things - what happens then? this is different depending on where - jurisdiction of inc., presence or none. We should therefore split into three streams. We need not to go too much at positive results - we need to focus on issues.
Greg Shatan: seem to be prejudging the ICANN legal answer - uncertain I agree with this.
David McAuley: Hypothetical is about forecasting the future - the one thing we are more certain about is US jurisdiction given 19 years of experience. As such would focus on jurisdiction of disputes as per request of WS2.
Avri Doria: seems early to make the judgement of satisfactory. quite possibly true, but early to come to a conclusion.
Greg Shatan: revue of actual litigation may help with this. The notion that ICANN can only sued under specific circumstances seems counter intuitive to me.
matthew shears: the review of existing cases should act as the reality check on the hypothetical
Avri Doria: ah satisfactory for ICANN? or for the other litigants?
David McAuley: What I meant Avri was that it seems satisfactory for the ability to maintain litigation, not outcome oriented
Avri Doria: my comment applies to that
David McAuley: OK, thanks, i read it differently then
Avri Doria: people force litigation into courts that are advantageous to themselves if they can.
Paul McGrady: This hypothetical is based on notion that ICANN is an international governance body - there are no documents confirming this - it is a California corp. period. We need to clean this up significantly.
Greg Shatan: Note that this is Google doc and would invite everyone to participate - so over to you PM.
Paul McGrady: uncertain I want to edit this bullet which says ICANN is above the law.
Greg Shatan: Good point. but need consensus from the group on if it should be in or not.
Phil Corwin: Want to comment on same points as PM - most of of page1 and page 2 should struck as it overstates ICANN's role. ICANN can be sued in any number of countries - the final assertion makes no sense vs Human Rights.
matthew shears: I share Phil's concerns
David McAuley: Agree w/point Phil making that ICANN needs to be subject to Jx somewhere(s)
Parminder: My entire engagement in ICANN and in this group is because I think ICANN is an international governance body.  or a body with a global governance function and a lot of people are here because of that (governance function) and GAC members are not interested to advise a US non-profit. The fact that ICANN is a US non-profit is an anomaly and not its global governance status and is not of primary importance. I agree with PC that law is important - but only democratic law. US law is made by Americans and as such is an anomaly and is not a democratic law for an international governance body suchas ICANN – this, for me, is the core of the issue for the jurisdiction group.
Erich Schweighofer: ICANN has a global public function but based on California law. Can work very well - see the example of the International Red Cross Committee.
Erich Schweighofer: States have to accept this role, then everything will be fine.
Erich Schweighofer: If not - another solution is required.
Jorge Cancio (GAC Switzerland): Erich: the ICRC has a specific status... quite different...
Erich Schweighofer: I know - under Swiss law.
Jorge Cancio (GAC Switzerland): not only
Wale Bakare: Yes, @Paul. I don't think we can completely move away from that
Erich Schweighofer: Internationally - not so much; Geneva Convention and a lot of customary international law.
Jorge Cancio (GAC Switzerland): that's quite a lot...
Parminder: Yes, i will like to know if GAC members do not consider ICANN primarily as a global governance body
Erich Schweighofer: States must accept the special role of IcANN, that is decisive.
Avri Doria: i though he said they do, but he doesn't
Parminder: greg, you are mis representing my question
Erich Schweighofer: Subject to court's interference can be horrible.
avri doria: not what i heard
Jorge Cancio (GAC Switzerland): strange question to GAC members...
Avri Doria: not what i heard
Philip Corwin: The purpose of this subgroup is to determine relevant jurisdiction questions related to ICANN's status as a non-profit California corporation, not to debate changing its corporate locus to that of another jurisdiction or to becoming an IGO on the highly questionable assertion that its private status subject to judicial restraint is a violation of human rights.
matthew shears: + 1 Phil
Jorge Cancio (GAC Switzerland): key is whether accountability works, and works equally for all
Paul McGrady: +1 Phil.
Greg Shatan: who supports Parminders position vs his participation in this.
Parminder: i restated it just as i said - but greg insisted that it is not what i said
avri doria: i know my particpation as an individual is becasue it is a global governance and not just becasue it is a us non profit.
Parminder: greg, you are creating a controversy from where one does not exist or need not exist - but pl go ahead
David McAuley: While I continue to believe the hypothetical will prove unhelpful, I agree w/Phil's point that the language he noted should be stricken if we do use the hypothetical
avri doria: how many of us are here because ICANN is a cool Us non profit.
Parminder: pl do then do this polling on the email - now I insist that you do it,
Jorge Cancio (GAC Switzerland): repeat: key is whether accountability works, and works equally for all; and jurisdictional aspects should not tip the scale unequally for the global community
Parminder: there is a human right of self determination
Parminder: in UN decl of human rights, and the protocol on civil and pol rights
Wale Bakare: Greg, i would suggest put the question to the subgroup mailing list for responses
4.   Question for ICANN Legal
Greg Shatan: Have edited for form and not substance - comments or concerns vs this version.
Jorge Cancio (GAC Switzerland): Does "ICANN" in the question cover the PTI?
David McAuley: Thanks for editing Greg, seems fine
Parminder: There are 3 types of litigation vs where a company is incorporated, has an office or neither. Also if there is an adverse judgement in a country against ICANN what are ICANN's options would seem a necessary question.
Kavouss Arasteh: I do not understand the purpose of this question?
Greg Shatan: question is to establish where ICANN can be sued and we essentially have 4, incorporation, hub offices, Engagement offices and none of these.
Parminder: i think ICANN can be sued anywhere if the plaintiff can show impact of ICANN's action - or a particualr action, which could be almost everywhere
Kavouss Arasteh: If ICANN rejects a contract with a registry in a country non-US - Should the registry take it to a court in Califronia or in another country?
Greg Shatan: not the subject of this question. where ICANN and a third party have agreed to a choice of venue then this would be enforceable.
Parminder: i think Kavouss case is covered in the question - i see nowhere that the question only refers to law where "choice" is avaiable
David McAuley: Agree w/Parminder - isn't the example covered in the question?
Parminder: but also the kind of case Kavouss mentions - where is it maintainable, and what would be impact of judgement of a court
Kavouss Arasteh: Still valid post-transition? please advise.
Greg Shatan: Re JC question - we can address this - as an Affiliate = piercing the corporate veil which would probably fail - but we could ask where PTI can be sued separately - but we should ask ICANN Legal first.
Kavouss Arasteh: Parminder, I do not think so. My question is a practical one that some registrar facing with now
David McAuley: don't see it as a major point however
David McAuley: agree w/Greg, better to ask ICANN Legal
Jorge Cancio (GAC Switzerland): @Greg: thx! I guess that would be relevant, as parties may try to challenge delegations by directly suing PTI
Paul McGrady: Specifications regarding specific jurisdiction (India for ICANN 55 and things related directly to this) vs general jurisdiction. So need to make these questions more precise.
Kavouss Arasteh: Grec, pls kindly retain my question in your future work
Greg Shatan: PM good points.
Parminder: KA specific example not limited to choice of law or not. Its about wherever ICANN can be  sued and as such KA's question is covered. Also agree with PM.
Kavouss Arasteh: Parminder, where my case is covered? I do not see that
Parminder: ok, i can see greg's point now
Parminder: for cases only where parties are bound by prior choice of law
David McAuley: Agree with Parminder but disagree with PM on getting more specific. Question as is is a good question.
Greg Shatan: I agree that there is a distinction between lack of personal jurisdiction and lack of venue.
Kavouss Arasteh: My question is valid and I do not think it is included in this question - but we will need an answer to.
Parminder: i would say that a court could still apply personal jurisdiction on a registrant aggrievement case
5.   Small Group Review of ICANN’s Past and Current Litigation
(not discussed)
6.   “Influence of ICANN’s Existing Jurisdiction” document, Section C
a.   https://docs.google.com/document/d/1_uxN8A5J3iaofnGlr5gYoFVKudgg_DuwDgIuyICPzbk/edit?usp=sharing
(not discussed)
7.   Timeline
(not discussed)
8.   AOB
(not discussed)
9.   Adjourned

Documents Presented

·         Jurisdiction Question to ICANN Legal.pdf<https://community.icann.org/download/attachments/64065610/Jurisdiction%20Question%20to%20ICANN%20Legal.pdf?version=1&modificationDate=1486646271000&api=v2>

·         JurisdictionHypothetical1.pdf<https://community.icann.org/download/attachments/64065610/JurisdictionHypothetical1.pdf?version=1&modificationDate=1486659693000&api=v2>

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