[Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
parminder
parminder at itforchange.net
Mon Jan 9 06:16:20 UTC 2017
On Monday 09 January 2017 11:21 AM, Greg Shatan wrote:
> All,
>
> snip
>
> 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.
1. This sub group is dealing with the issue of ICANN's jurisdiction,
with “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.
2. Dealing with an issue would normally mean dealing with the problems,
if any, in relation to that issue. We indeed seemed to agree here that
'problems' is a better word than 'issues', because it is "problem", if
any, that need attention, and not just "issues".
3. In light of the above, to ask the public/ community about
"information/ facts about the nature of problems about current ICANN's
jurisdiction", to me appears to be the most logical and clear thing to
do. That is precisely what Q4 seeks to do.
What is so unclear about the purpose of Q4?
Greg, I am surprised that even you say that "it is unclear what the
purpose of the Q 4 is".
We seem to have entered into some kind of Wonderland, of Alice's fame,
where clear things are not clear things...
parminder
>
> Greg
>
> On Sun, Jan 8, 2017 at 11:26 PM, Greg Shatan <gregshatanipc at gmail.com
> <mailto: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 <mailto: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
> <mailto:jlaprise at gmail.com>>:
>
> Oops…my mistake. Thanks Greg!
>
>
>
> Best regards,
>
>
>
> John Laprise, Ph.D.
>
> Consulting Scholar
>
>
>
> http://www.linkedin.com/in/jplaprise/<http://www.linkedin.com/in/jplaprise/>
>
>
>
>
>
>
>
> *From:*Greg Shatan [mailto:gregshatanipc at gmail.com
> <mailto:gregshatanipc at gmail.com>]
> *Sent:* Sunday, January 8, 2017 1:39 AM
> *To:* John Laprise <jlaprise at gmail.com
> <mailto:jlaprise at gmail.com>>
> *Cc:* Kavouss Arasteh <kavouss.arasteh at gmail.com
> <mailto:kavouss.arasteh at gmail.com>>; Phil Corwin
> <psc at vlaw-dc.com <mailto:psc at vlaw-dc.com>>;
> ws2-jurisdiction <ws2-jurisdiction at icann.org
> <mailto:ws2-jurisdiction at icann.org>>;
> Mathieu.Weill at afnic.fr <mailto:Mathieu.Weill at afnic.fr>;
> Thomas Rickert <rickert at anwaelte.de
> <mailto:rickert at anwaelte.de>>; León Felipe Sánchez Ambía
> <leonfelipe at sanchez.mx <mailto: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 <mailto: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/
> <http://www.linkedin.com/in/jplaprise/>
>
>
>
>
>
>
>
> *From:*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>] *On
> Behalf Of *Kavouss Arasteh
> *Sent:* Saturday, January 7, 2017 6:11 PM
> *To:* Phil Corwin <psc at vlaw-dc.com
> <mailto:psc at vlaw-dc.com>>; ws2-jurisdiction
> <ws2-jurisdiction at icann.org
> <mailto:ws2-jurisdiction at icann.org>>; Greg Shatan
> <gregshatanipc at gmail.com
> <mailto:gregshatanipc at gmail.com>>;
> Mathieu.Weill at afnic.fr
> <mailto:Mathieu.Weill at afnic.fr>; Thomas Rickert
> <rickert at anwaelte.de <mailto:rickert at anwaelte.de>>;
> León Felipe Sánchez Ambía <leonfelipe at sanchez.mx
> <mailto: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
> <mailto: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
> <mailto: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 <mailto: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
> <tel:%28202%29%20559-8597>/Direct*
>
> *202-559-8750 <tel:%28202%29%20559-8750>/Fax*
>
> *202-255-6172 <tel:%28202%29%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>
> [mailto: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
> <mailto: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
> <mailto: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
> <mailto: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
> <mailto: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.
>
>
>
> _______________________________________________
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>
>
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