[Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED

Mon Jan 9 09:17:38 UTC 2017

Dear Greg
Please kindly then delete the last of part of the C) :
any “choice of law” or venue provisions in agreements with ICANN.
or please add a qualifier before that as follows:
any “choice of law” or venue provisions in agreements with ICANN, if
applicable and as the case may be
Regards
Kavouss

2017-01-09 5:26 GMT+01:00 Greg Shatan <gregshatanipc at gmail.com>:

> 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!
>>>
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>>> * 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 <gregshatanipc at gmail.com>] Sent: Sunday,
>>> January 8, 2017 1:39 AMTo: John Laprise <jlaprise at gmail.com
>>> <jlaprise at gmail.com>>Cc: Kavouss Arasteh <kavouss.arasteh at gmail.com
>>> <kavouss.arasteh at gmail.com>>; Phil Corwin <psc at vlaw-dc.com
>>> <psc at vlaw-dc.com>>; ws2-jurisdiction <ws2-jurisdiction at icann.org
>>> <ws2-jurisdiction at icann.org>>; Mathieu.Weill at afnic.fr
>>> <Mathieu.Weill at afnic.fr>; Thomas Rickert <rickert at anwaelte.de
>>> <rickert at anwaelte.de>>; León Felipe Sánchez Ambía <leonfelipe at sanchez.mx
>>> <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 <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 <ws2-jurisdiction-bounces at icann.org>
>>> [mailto:ws2-jurisdiction-bounces at icann.org
>>> <ws2-jurisdiction-bounces at icann.org>] On Behalf Of Kavouss ArastehSent:
>>> Saturday, January 7, 2017 6:11 PMTo: Phil Corwin <psc at vlaw-dc.com
>>> <psc at vlaw-dc.com>>; ws2-jurisdiction <ws2-jurisdiction at icann.org
>>> <ws2-jurisdiction at icann.org>>; Greg Shatan <gregshatanipc at gmail.com
>>> <gregshatanipc at gmail.com>>; Mathieu.Weill at afnic.fr
>>> <Mathieu.Weill at afnic.fr>; Thomas Rickert <rickert at anwaelte.de
>>> <rickert at anwaelte.de>>; León Felipe Sánchez Ambía <leonfelipe at sanchez.mx
>>> <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 discussionLook at those commenting' who they are
>>> .Parminder,  occasionally Pedro Kavouss  and the rest are coming from
>>> opposition campThis 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>?RegardsKavouss
>>>   2017-01-08 0:52 GMT+01:00 Kavouss Arasteh <kavouss.arasteh at gmail.com
>>> <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
>>> questionI 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 treatmentRegardsKavouss
>>>      2017-01-08 0:44 GMT+01:00 Kavouss Arasteh <kavouss.arasteh at gmail.com
>>> <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
>>> questionI 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 <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?, or2.
>>> 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
>>> PrincipalVirtualaw LLC1155 F Street, NWSuite 1050Washington, DC
>>> 20004202-559-8597 <(202)%20559-8597>/Direct202-559-8750
>>> <(202)%20559-8750>/Fax202-255-6172 <(202)%20255-6172>/Cell Twitter:
>>> @VlawDC "Luck is the residue of design" -- Branch Rickey From:
>>> ws2-jurisdiction-bounces at icann.org <ws2-jurisdiction-bounces at icann.org>
>>> [mailto:ws2-jurisdiction-bounces at icann.org
>>> <ws2-jurisdiction-bounces at icann.org>] On Behalf Of Seun OjedejiSent:
>>> Saturday, January 07, 2017 4:28 PMTo: Greg ShatanCc:
>>> ws2-jurisdictionSubject: Re: [Ws2-jurisdiction] Jurisdiction Questionnaire:
>>> RESPONSE REQUESTED Edit: "...I note that *Phil*...." not Paul  Cheers!Sent
>>> from my LG G4Kindly excuse brevity and typos On 7 Jan 2017 9:59 p.m., "Seun
>>> Ojedeji" <seun.ojedeji at gmail.com <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). RegardsSent from my LG
>>> G4Kindly excuse brevity and typos On 7 Jan 2017 8:10 p.m., "Greg Shatan"
>>> <gregshatanipc at gmail.com <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 <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 RegardsSent from
>>> my LG G4Kindly excuse brevity and typos On 7 Jan 2017 7:23 p.m., "Greg
>>> Shatan" <gregshatanipc at gmail.com <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 PREAMBLEThe 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
>>> 1Has 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 2Has 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 3Do 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
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>>>
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>
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