[Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED

Mon Jan 9 05:51:23 UTC 2017

All,

Can we please refocus on discussing the various alternatives for Question
4?

We need to see if we can arrive at a version of Question 4 that will get
consensus (as defined in the Charter) support of the subgroup.  So far we
have not been able to do so, unlike Questions 1-3.

I am trying to allow every opportunity to arrive at a version of Question 4
that will get that level of support.  That is why the process has gone on
as long as it has.

We will be looking to complete this discussion on the call Tuesday at
13:00, in advance of the next Plenary call on January 11 at 19:00.  It
would be really good to make headway on the list before then.

I think that an underlying problem is that it is unclear what the purpose
of Question 4 is, or at least there is no common understanding of the
purpose of Question 4.  If we can come to consensus on the purpose, then
the wording of the question itself will be much easier.  If we don't have a
common understanding of what we're trying to accomplish with Question 4,
that will be a significant impediment to arriving at a version of the
question that will get consensus support.

So I suggest we also try to arrive at a common understanding of what the
purpose of Question 4 is.

Greg

On Sun, Jan 8, 2017 at 11:26 PM, Greg Shatan <gregshatanipc at gmail.com>
wrote:

> Kavouss,
>
> The scenario that you mention relates to section (a) of the footnote ("(a)
> ICANN being subject to U.S. and California law as a result of its
> incorporation and location in California") and not to (c) ("any “choice of
> law” or venue provisions in agreements with ICANN").
>
> As for the issue of Consensus, the definition of Consensus and of Full
> Consensus are both set forth in the CCWG Charter:
>
> a)     Full Consensus - a position where no minority disagrees; identified
> by an absence of objection
> b)     Consensus – a position where a small minority disagrees, but most
> agree
>
> This CCWG (like the CCWG-IANA) operates on the basis of Consensus, as
> defined above.  This definition of Consensus is also used in all of the
> GNSO Policy Development Working Groups and has been used by the GNSO for
> many years, regardless of the complexity or criticality of the issues.
>
> We should be consistent with the Charter and use the defined terms "Full
> Consensus" and "Consensus," rather than the term "rough consensus."
>
> Our decision-making method is dictated by the Charter, which states that
> we shall seek to act by consensus.  While it is always nice to achieve Full
> Consensus, it is not required under the Charter.
>
> Best regards,
>
> Greg
>
>
> On Sun, Jan 8, 2017 at 5:24 AM, Kavouss Arasteh <kavouss.arasteh at gmail.com
> > wrote:
>
>> Dear Greg,
>> Thank you very much for the time and efforts that you have demonstrated
>> so far .
>> The text in  c said
>> Quote
>> any “choice of law” or venue provisions in agreements with ICANN. "
>> This does not cover the scenario  is not limited to the agreement with
>> ICANN.
>> Please consult cases contained in the hyperlink provided by Mathieu . In
>> some  cases there is no direct link with ICANN Agreement.
>> If based on OFAC the case before the court is to act upon a ccTLD .
>> I therefore suggest to  add a qualifier to the last four words ibn c) by
>> ," as the case may be and to add  to ADD
>>  d)  “choice of law” or venue of jurisdiction "
>> Then it may go .
>> In reply to John I disagree with his suggestion as he said
>> Quote
>> "There seems to be rough consensus with a few vocal dissenters. No
>> problem. We issue a majority and a minority report expressing the broad
>> consensus of the ws2 jurisdiction wg while noting the objections"
>> Unquote
>> As this is the most critical and delicate issue we need to have full
>> consensus and NOT SO-CALLED rough consensus .
>> Rough consensus mainly introduced by IETF many years ago for other more
>> technical and more simple cases.
>> Moreover, there is no universal agreement on the définition of .SO-CALLED
>> rough consensus
>>
>>
>> 2017-01-08 8:41 GMT+01:00 John Laprise <jlaprise at gmail.com>:
>>
>>> Oops…my mistake. Thanks Greg!
>>>
>>>
>>>
>>> Best regards,
>>>
>>>
>>>
>>> John Laprise, Ph.D.
>>>
>>> Consulting Scholar
>>>
>>>
>>>
>>> http://www.linkedin.com/in/jplaprise/
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> *From:* Greg Shatan [mailto:gregshatanipc at gmail.com]
>>> *Sent:* Sunday, January 8, 2017 1:39 AM
>>> *To:* John Laprise <jlaprise at gmail.com>
>>> *Cc:* Kavouss Arasteh <kavouss.arasteh at gmail.com>; Phil Corwin <
>>> psc at vlaw-dc.com>; ws2-jurisdiction <ws2-jurisdiction at icann.org>;
>>> Mathieu.Weill at afnic.fr; Thomas Rickert <rickert at anwaelte.de>; León
>>> Felipe Sánchez Ambía <leonfelipe at sanchez.mx>
>>>
>>> *Subject:* Re: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE
>>> REQUESTED
>>>
>>>
>>>
>>> We are only discussing a questionnaire here, not the conclusions of the
>>> subgroup.  Let us not jump to conclusions.
>>>
>>>
>>>
>>> Greg
>>>
>>>
>>>
>>> On Sun, Jan 8, 2017 at 2:37 AM, John Laprise <jlaprise at gmail.com> wrote:
>>>
>>> There *is* mutual understanding; just not mutual agreement. There’s a
>>> difference.
>>>
>>>
>>>
>>> There seems to be rough consensus with a few vocal dissenters. No
>>> problem. We issue a majority and a minority report expressing the broad
>>> consensus of the ws2 jurisdiction wg while noting the objections.
>>>
>>>
>>>
>>> Best regards,
>>>
>>>
>>>
>>> John Laprise, Ph.D.
>>>
>>> Consulting Scholar
>>>
>>>
>>>
>>> http://www.linkedin.com/in/jplaprise/
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> *From:* ws2-jurisdiction-bounces at icann.org [mailto:
>>> ws2-jurisdiction-bounces at icann.org] *On Behalf Of *Kavouss Arasteh
>>> *Sent:* Saturday, January 7, 2017 6:11 PM
>>> *To:* Phil Corwin <psc at vlaw-dc.com>; ws2-jurisdiction <
>>> ws2-jurisdiction at icann.org>; Greg Shatan <gregshatanipc at gmail.com>;
>>> Mathieu.Weill at afnic.fr; Thomas Rickert <rickert at anwaelte.de>; León
>>> Felipe Sánchez Ambía <leonfelipe at sanchez.mx>
>>>
>>>
>>> *Subject:* Re: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE
>>> REQUESTED
>>>
>>>
>>>
>>> Dear All,
>>>
>>> It is midnight here. This discussion will lead to nowhere .There is no
>>> mutual understanding.
>>>
>>> Every one pushes for its own views.
>>>
>>> There is no common points to discuss.
>>>
>>> We should drop the entire agenda.
>>>
>>> Refer the matter back to CCWG.
>>>
>>> A STRONG OPPOSITION to discuss a choice of juridiction then we discuss
>>> this matter.
>>>
>>> There is no fair basis for discussion
>>>
>>> Look at those commenting' who they are .
>>>
>>> Parminder,  occasionally Pedro Kavouss  and the rest are coming from
>>> opposition camp
>>>
>>> This is not  .It is not dividing .
>>>
>>> THIS DISCUSSION WILL GET NOQWHERE  untill and unless there is a mutual
>>> understanding.
>>>
>>> But one camp does not wish to consider the problem of other camp.
>>>
>>> People going from right to left from up to down but confusing others.
>>>
>>> The issue is clear.
>>>
>>> Why we are obliged to accept the CA OR FERDERAL JURISDICTION>?
>>>
>>> Regards
>>>
>>> Kavouss
>>>
>>>
>>>
>>> 2017-01-08 0:52 GMT+01:00 Kavouss Arasteh <kavouss.arasteh at gmail.com>:
>>>
>>> Dear Phil,
>>>
>>> Yes I agree with you on that but the way the statement is formulated
>>> push the people to reach the same conclusions as you reached. Since ICANN
>>> IS IN CA then there is not any possibility to agree on a choice of another
>>> jurisdiction.
>>>
>>> This is the question
>>>
>>> I believe that the parties must be given a choice to opt for another
>>> jurisdiction if mutually agreed.
>>>
>>> Your views is fully respected as it express your association,
>>> affiliation and patriotisme but others have different views.
>>>
>>> Tell me if in a case of dispute why two parties can not opt 7 choice for
>>> a diffèrent jurisdiction than that of US.
>>>
>>> Please kindly understand the concerns of others .
>>>
>>> Pls kindly do not push for status quo.
>>>
>>>  WHY one should be obliged to accept the CA OR FEDERAL LAW. WHY THEY
>>> SHOULD BE DEPROVED from agreeing on diffèrent juridiction say Swiss law .
>>>
>>> I am not looking for any confrontation with you or people in your camp
>>> but I wish to establish a balance situation and fair treatment
>>>
>>> Regards
>>>
>>> Kavouss
>>>
>>>
>>>
>>>
>>>
>>> 2017-01-08 0:44 GMT+01:00 Kavouss Arasteh <kavouss.arasteh at gmail.com>:
>>>
>>> Dear Phil,
>>>
>>> Yes I agree with you on that but the way the statement is formulated
>>> push the people to reach the same conclusions as you reached. Since ICANN
>>> IS IN CA then there is not any possibility to agree on a choice of another
>>> jurisdiction.
>>>
>>> This is the question
>>>
>>> I believe that the parties must be given a choice to opt for another
>>> jurisdiction if mutually agreed.
>>>
>>> a
>>>
>>>
>>>
>>> 2017-01-08 0:32 GMT+01:00 Phil Corwin <psc at vlaw-dc.com>:
>>>
>>> Which question do you believe would give more the more useful data:
>>>
>>> 1.       Describe (name of individual)’s most endearing and most
>>> irritating qualities?, or
>>>
>>> 2.       Describe (name of individual)’s most irritating qualities?
>>>
>>>
>>>
>>> The first yields a far more comprehensive and balanced response. So does
>>> asking about both advantages and disadvantages of jurisdiction.
>>>
>>>
>>>
>>> *Philip S. Corwin, Founding Principal*
>>>
>>> *Virtualaw LLC*
>>>
>>> *1155 F Street, NW*
>>>
>>> *Suite 1050*
>>>
>>> *Washington, DC 20004*
>>>
>>> *202-559-8597 <(202)%20559-8597>/Direct*
>>>
>>> *202-559-8750 <(202)%20559-8750>/Fax*
>>>
>>> *202-255-6172 <(202)%20255-6172>/Cell*
>>>
>>>
>>>
>>> *Twitter: @VlawDC*
>>>
>>>
>>>
>>> *"Luck is the residue of design" -- Branch Rickey*
>>>
>>>
>>>
>>> *From:* ws2-jurisdiction-bounces at icann.org [mailto:
>>> ws2-jurisdiction-bounces at icann.org] *On Behalf Of *Seun Ojedeji
>>> *Sent:* Saturday, January 07, 2017 4:28 PM
>>> *To:* Greg Shatan
>>> *Cc:* ws2-jurisdiction
>>> *Subject:* Re: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE
>>> REQUESTED
>>>
>>>
>>>
>>> Edit: "...I note that *Phil*...." not Paul
>>>
>>>
>>>
>>> Cheers!
>>>
>>> Sent from my LG G4
>>> Kindly excuse brevity and typos
>>>
>>>
>>>
>>> On 7 Jan 2017 9:59 p.m., "Seun Ojedeji" <seun.ojedeji at gmail.com> wrote:
>>>
>>> Hello Greg,
>>>
>>>
>>>
>>> Thanks for the follow-up, my reasons are quite simple:
>>>
>>>
>>>
>>> 1. The goal is to find out if there are indeed valid problems. Hence the
>>> question should be framed as such
>>>
>>>
>>>
>>> 2. Since this is not an exercise of "advantages vs disadvantages",
>>> asking for advantages now will not be as useful as knowing the
>>> disadvantages, confirming they are indeed valid problems and then we
>>> criticise those problems (including stating possible advantages we will
>>> loose if we needed to solve the problem identifed).
>>>
>>>
>>>
>>> 3. We just cannot exhaust the advantages via this question and if the
>>> responses we get is what we will be basing our discussions on then we
>>> should not start this process on a competitive grounds.
>>>
>>>
>>>
>>> 4. It is not clear what exactly we intend to use the advantages for at
>>> this initial stage but it's clear why we are asking for disadvantages.
>>>
>>>
>>>
>>> For clarity this is not a redline for me and I will be fine if the group
>>> does not accept the suggestion  so long as adequate reason is provided (I
>>> note Paul opposes, will be good to read reasons). Irrespective of the
>>> group's decision, it should be clear that the volume of advantages vis
>>> disadvantages would not matter but the substance of the responses will be
>>> most important. Hence I hope we will address each of the problems
>>> identified adequately (including addressing them with points that may
>>> exceed those in the responses).
>>>
>>>
>>>
>>> Regards
>>>
>>> Sent from my LG G4
>>> Kindly excuse brevity and typos
>>>
>>>
>>>
>>> On 7 Jan 2017 8:10 p.m., "Greg Shatan" <gregshatanipc at gmail.com> wrote:
>>>
>>> Seun,
>>>
>>>
>>>
>>> Why do you suggest removing "advantages"?
>>>
>>>
>>>
>>> Greg
>>>
>>>
>>>
>>> On Sat, Jan 7, 2017 at 1:41 PM, Seun Ojedeji <seun.ojedeji at gmail.com>
>>> wrote:
>>>
>>> Hello Greg,
>>>
>>>
>>>
>>> Thanks for sending in this summary. I think the suggestion about
>>> removing "advantages" will be applicable to any of the question 4
>>> alternatives.
>>>
>>>
>>>
>>> For instance I prefer "alternative 1" without including advantages. So I
>>> suggest modifying text of "alternative 6" to the following:
>>>
>>>
>>>
>>> "Remove advantages from any alternative that gains more traction"
>>>
>>>
>>>
>>> In that case, I will choose alternative 1+6
>>>
>>>
>>>
>>> Regards
>>>
>>> Sent from my LG G4
>>> Kindly excuse brevity and typos
>>>
>>>
>>>
>>> On 7 Jan 2017 7:23 p.m., "Greg Shatan" <gregshatanipc at gmail.com> wrote:
>>>
>>> All,
>>>
>>>
>>>
>>> We made some good progress on our call on Friday, January 6.  Following
>>> a wide-ranging discussion, we were able to make some headway on refining
>>> the draft questionnaire.  I encourage those who missed the call to review
>>> the recording and notes.
>>>
>>>
>>>
>>> Specifically, we came to a preliminary conclusion on revising the
>>> Preamble and Question 1, subject to comment on this list and a final
>>> discussion on our next call (Tuesday, January 10 at 13:00).  Question 2 had
>>> no revisions suggested, and Question 3 had only one revision suggested.
>>>
>>>
>>>
>>> The Preamble and Questions 1, 2 and 3 (with the proposed revision in
>>> "track changes") are in the first document below (Word and PDF documents)
>>> and also in text below.  *Please review this version of the Preamble
>>> and Questions 1-3 and provide support (or lack of support) and/or comments
>>> for this portion.*
>>>
>>>
>>>
>>> We also discussed several aspects of Question 4, including the purpose
>>> of the question; whether the question is different in nature from Questions
>>> 1-3; whether or not the question should be included in this questionnaire,
>>> a subsequent questionnaire or not at all; the types of responses desired
>>> (and the types expected); and the drafting of the question itself.  With
>>> these topics and seven drafting alternatives (and the ability to pick and
>>> choose elements of those alternatives), this required more time than we had
>>> left on the call.  Therefore, we did not come to any preliminary
>>> conclusions on Question 4.
>>>
>>>
>>>
>>> The drafting alternatives for Question 4 (including the current version)
>>> are in the second draft document (Word and PDF).  Please look at the
>>> alternatives carefully, particularly if you have not supported sending
>>> question 4 in its current form. * Please review the options for
>>> Question 4 and respond, indicating (a) Which version(s) of Question 4 you
>>> could support and which you would object to, and (b) If the answer to (a)
>>> is "none," how you would change or combine one or more alternatives in
>>> order to support it.*
>>>
>>>
>>>
>>> We will conclude this discussion on our call of January 10, so please
>>> provide your thoughts and responses before then.  Thank you.
>>>
>>>
>>>
>>> Greg
>>>
>>>
>>>
>>> *VERSION OF PREAMBLE AND QUESTIONS 1-3 FOR REVIEW*
>>>
>>>
>>>
>>> *PREAMBLE*
>>>
>>> The newly-adopted ICANN bylaws created several Work Stream 2
>>> accountability subgroups. One of them, the subgroup on Jurisdiction, is
>>> posing the questions below for community input into the subgroup’s
>>> deliberations.
>>>
>>> As directed by Bylaw Article 27, Section 27.1(b)(vi)
>>> <https://www.icann.org/resources/pages/governance/bylaws-en/#article27>
>>> and to the extent set forth in the CCWG-Accountability Final Report
>>> <https://community.icann.org/pages/viewpage.action?pageId=58723827&preview=/58723827/58726532/Main%20Report%20-%20FINAL-Revised.pdf>
>>> ,[1] the Jurisdiction subgroup is addressing jurisdiction*-related
>>> questions, including how choice of jurisdiction and applicable laws for
>>> dispute settlement impact ICANN's accountability and the actual operation
>>> of policies.
>>>
>>> To help the subgroup in these endeavors we are asking you to consider
>>> and respond to the following specific questions. In this regard, the
>>> subgroup is asking for concrete, factual submissions (positive, negative,
>>> or neutral) that will help ensure that the subgroup’s deliberations are
>>> informed, fact-based, and address real issues. The subgroup is interested
>>> in all types of jurisdiction-related factual experiences, not just those
>>> involving actual disputes/court cases.
>>>
>>> *QUESTION 1*
>>>
>>> Has your business, your privacy or your ability to use or purchase
>>> domain name-related services been affected by ICANN's jurisdiction* in any
>>> way?
>>>
>>> If the answer is Yes, please describe specific cases, situations or
>>> incidents, including the date, the parties involved, and links to any
>>> relevant documents.  Please note that “affected” may refer to positive
>>> and/or negative effects.
>>>
>>> *QUESTION 2*
>>>
>>> Has ICANN's jurisdiction* affected any dispute resolution process or
>>> litigation related to domain names you have been involved in?
>>>
>>> If the answer is Yes, please describe specific cases, situations or
>>> incidents, including the date, the parties involved, and links to any
>>> relevant documents.  Please note that “affected” may refer to positive
>>> and/or negative effects.
>>>
>>> *QUESTION 3*
>>>
>>> Do you have copies of and/or links to any verifiable reports of
>>> experiences of other parties that would be responsive to the questions
>>> above?
>>>
>>> If the answer is yes, please provide these copies and/or links.  Please
>>> provide either first-person accounts or reliable third-party accounts such
>>> as news reports; please do not provide your own version of events.
>>>
>>>
>>> ------------------------------
>>>
>>> [1] *See* CCWG-Accountability Main Report, paragraphs 6 and 234, and
>>> Annex 12, paragraphs 25-31.
>>>
>>> *  For this Questionnaire, “ICANN’s jurisdiction” refers to (a) ICANN
>>> being subject to U.S. and California law as a result of its incorporation
>>> and location in California, (b) ICANN being subject to the laws of any
>>> other country as a result of its location within or contacts with that
>>> country, or (c) any “choice of law” or venue provisions in agreements with
>>> ICANN.
>>>
>>>
>>>
>>> _______________________________________________
>>> Ws2-jurisdiction mailing list
>>> Ws2-jurisdiction at icann.org
>>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>>>
>>>
>>>
>>>
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>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>
>
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