[Ws2-jurisdiction] RES: Agenda for Jurisdiction Subgroup Meeting 20 June at 19:00 UTC

Thu Jun 22 16:01:50 UTC 2017

Dear Milton, I have noted that you have gradually recognized what we were
talking about since months even at the last f2f meeting I have argued that
we have been driven to that path as of 15 April 2015 when the external
klawyers pushed us to that direction.
It was mentioned s by some of us that we can not REDO WS1 thus must focus
on impact of the  prevailing situation.
OFAC is one issue, some carefully studied and tailored immunity is the
second issue
There may be others.
If people understand that we need to think of the problems that exist and
finding solution or remedy for that that is already not too bad,
Pls kindly do not refer to 3 or 4 .There is a silent society which supporta
these 3 or 4.
Regards
Kavouss

2017-06-22 17:43 GMT+02:00 Mueller, Milton L <milton at gatech.edu>:

>
>
> As I understand it, Director Filho (and 3 or 4 people who agreed with him)
> are saying three important things.
>
> 1)      They fundamentally agree with the determination that California
> law should be used as the baseline for solutions going forward;
>
> 2)      They do not think the group has sufficient basis to restrict any
> discussion of some form of immunity, especially when immunity need not be
> absolute;
>
> 3)      Related to #2, they think we need to clearly identify and agree
> on issues (i.e., problems to be solved) before coming up with remedies, and
> by ruling out a discussion of any form of immunity before we have agreed on
> what problems we need to solve, we are reversing that sequence.
>
>
>
> I think these are all reasonable points and point #1 shows that we are
> truly reaching consensus on a significant issue.
>
>
>
> On the topic of immunity/ies, it is clear that some form of broad immunity
> will never get traction and many if not most of us consider it to be
> anathema to the accountability reforms. I also believe that some
> application of the US Immunities Act to ICANN is also out of the question.
> But if some limited and carefully scoped form of immunity appears, down the
> road, to be a solution to a known problem that we all agree is a problem
> (e.g., OFAC) then we should certainly be able to discuss it.
>
>
>
> Hoping you have productive discussions in Johannesburg
>
>
>
> *From:* ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-
> bounces at icann.org] *On Behalf Of *Benedicto Fonseca Filho
> *Sent:* Tuesday, June 20, 2017 1:20 PM
> *To:* Greg Shatan <gregshatanipc at gmail.com>; ws2-jurisdiction <
> ws2-jurisdiction at icann.org>
> *Subject:* [Ws2-jurisdiction] RES: Agenda for Jurisdiction Subgroup
> Meeting 20 June at 19:00 UTC
>
>
>
> Dear all,
>
>
>
> I would like to refer to item 4.1 ("Decision") of the agenda for today´s
> meeting (#36).
>
> First of all, in regard to *procedural aspects*, may I request a
> clarification. Does the precedent used in WS1 in regard to "narrowing
> alternatives" refer to decisions emanating from discussions of the Group as
> a whole ("bottom-up") or made by the Co-Chairs ("top-down")?  On the other
> hand, considering the different characteristics of the work pursued in both
> Work streams (focus on one single topic in WS1 vs. different streams of
> work in dedicated Subgroups in WS2), it would be disturbing, in any case
> (and a bad precedent, I must say) that the CCWG co-chairs would seek to so
> heavily interfere with the work of any Subgroup. In other words, do the
> Co-chairs have the right to substitute their views for the views of the
> Subgroup in the absence of a clear consensus within the Subgroup itself and
> also in the absence of a decision by the CCWG-plenary in support of that
> interference?
>
> Secondly, in *substance*, I would not see a problem, for the sake of
> moving ahead discussions in the Subgroup, to accept the assumption that the
> Group should take California legislation as a baseline for its subsequent
> work (I think it might be too early to speak about actual recommendations
> at the present stage) and work on solutions founded on this. We can also
> concur that, in that light, the Subgroup should not pursue recommendations
> to change ICANN´s jurisdiction of incorporation or headquarters location.
>
> We do not concur, however, that the Group should be impeded to explore, on
> the other hand, possibilities regarding immunity of ICANN, on the basis of
> the presumption that "…. there is no possibility of consensus for an
> immunity-based concept…". We consider the link between the two notions is
> flawed for three main reasons: (i)  as it has been stated before by Brazil
> and others, it is not correct to assume that no form of immunity from
> domestic jurisdiction is possible for ICANN in case it remains an
> organisation incorporated in California, as immunity arrangements are
> possible under different forms (e.g the ICRC, which has domestic and
> international law immunities, even though it remains a private organisation
> governed by Swiss law). Therefore, even if we were to assume that ICANN
> will not change places, or that it will remain incorporated in California,
> this assumption does not rule out the immunity solution, which can be
> limited immunity rather than absolute immunity, and which can take the
> form, for example, of immunity from adjudication in domestic courts rather
> than immunity from the local laws; (ii)  within the Subgroup itself, there
> is certainly no consensus that this avenue is entirely out of question and
> should be further discussed, including with the resort to proper
> independent legal advice;  (iii) in our view, the degree of support of any
> such idea (which were never duly explored) could only be assessed at the
> end of the exercise and not lead to and early conclusion that "there is no
> possibility of consensus".
>
> I therefore call for removal of the restriction on the group exploring
> possibilities related to immunity. In our view – and without prejudice to
> concerns previously expressed in regard to procedural aspects -, retaining
> the rest of the proposed language by the Co-chairs can be acceptable in the
> present circumstances as providing a way forward but this should not impede
> the Group to explore a possibility deemed by some members (among which, may
> I say, the majority of government representantives) to be crucial. Needless
> to say that any recommendation in that sense should not undermine other
> representatives positions and interests. We are convinced this would be
> indeed possible but to get there we need to pursue substantive discussions,
> benefitting of the narrower focus proposed by the Co-Chairs in regard to
> ICANN´s jurisdiction of incorporation and headquarters.
>
> May I conclude by recalling that the Subgroup had previously agreed to (i)
> identify issues before it goes on to explore remedies; (ii) look at
> proposed remedies; (iii) not to discuss a remedy until an issue has been
> identified that requires discussion of that remedy. The co-Chair´s
> "Decision" inverts that logic by establishing an ex-ante position in
> abstract. We agree that in the present circumstances to continue
> discussion changes of ICANN´s jurisdiction of incorporation and
> headquarters might not be helpuful but a different thing would be to rule
> out discussion on alternatives that might lead to a satisfactory set of
> rules from the perspective of many governments while being acceptable to
> others. That approach would be detrimental to the whole process as it might
> alienate many participants from discussion, including, possibly, the
> Brazilian government.
>
> In my view, independently of the outcomes of this afternoon´s call, the
> whole subject should be discussed at the CCWG plenary F2F meeting next
> Sunday.
>
>
>
> Best regards,
>
>
>
> Benedicto
>
>
>
>
>
> *Benedicto Fonseca Filho*
>
> *Director, Department of Scientific and Technological Themes*
>
> *Ministry of External Relations*
>
> *BRAZIL*
>
> *Phone: (+5561) 2030-9164 <+55%2061%202030-9164>/9165*
>
>
> ------------------------------
>
> *De:* ws2-jurisdiction-bounces at icann.org [ws2-jurisdiction-bounces@
> icann.org] em nome de Greg Shatan [gregshatanipc at gmail.com]
> *Enviado:* terça-feira, 20 de junho de 2017 3:06
> *Para:* ws2-jurisdiction
> *Assunto:* [Ws2-jurisdiction] Agenda for Jurisdiction Subgroup Meeting 20
> June at 19:00 UTC
>
> All,
>
>
>
> The agenda for the upcoming meeting is attached.  Materials other than
> Google Drive documents are also attached.  Google drive documents will be
> downloaded and circulated nearer to the meeting.
>
>
>
> I particularly encourage members to contribute to the newly-created
> Proposed Issues List:
>
>
>
> https://docs.google.com/spreadsheets/d/1zAMj3Oz8TEqbjauOyqt09Ef-
> 1ada9TrC7i60Mk-7al4/edit?usp=sharing.
>
>
>
> It's important that we collect proposed issues that have already been
> brought up in various documents and put them in one place.
>
>
>
> I look forward to our upcoming meeting.
>
>
>
> Greg
>
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>
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