[Ws2-jurisdiction] FW: Questions based on Parminder's statements in the last meeting about GAC participation

Wed Mar 1 18:56:39 UTC 2017

On Wed, Mar 1, 2017 at 7:12 PM, Greg Shatan <gregshatanipc at gmail.com> wrote:

> Seun,
>
>
> However, we may decide that immunity is not a potential remedy that this
> group might recommend. If that's the case, then we would not be looking at "any
> possible issues/concerns that may warrant considerations for possible
> immunity/waiver for ICANN"  That doesn't mean those issues/concerns can't
> be looked at.  It only means that we would not recommend immunity as a
> possible remedy.
>

SO: I agree, especially if there are other ways to address whatever "valid
issues" are identified. Discussing the issue is the stage we are yet to get
to.

>
> In any event, looking at suggestions for issues to analyze is an ongoing
> task, whether those issues are suggested by the questionnaire or by
> participants in the group.  We then need to take those suggestions and
> decide whether they are, in fact, issues for the group's consideration.
> Not every suggestion is going to result in an issue, but we should hear all
> suggestions brought up by the group.
>

SO:  I agree hence (unless you have been logging the suggestions/issues
already made on various thread on this list), we should start collating the
issues/suggestions and tackle them one after the other for clear record
purposes.

> I hope this is clear.  I certainly don't intend to confuse things!
>

SO: Noted :-)

>
> Separately, I will put out a work plan based on today's call and the work
> we have done to date.  Maybe that will help, if this email hasn't helped....
>

SO: Thanks for that as it will help provide an idea of what has been done
and what is still outstanding.

Cheers!

>
> Best regards,
>
> Greg
>
>
> *Greg Shatan *C: 917-816-6428
> S: gsshatan
> Phone-to-Skype: 646-845-9428
> gregshatanipc at gmail.com
>
>
> On Wed, Mar 1, 2017 at 12:24 PM, Seun Ojedeji <seun.ojedeji at gmail.com>
> wrote:
>
>> Hello Greg,
>>
>> I am concerned at the various direction we are taking with this. You
>> posed a way forward today and you got responses to that, now you are coming
>> back to this one. Can we try to have a clear direction please and stop
>> going around in circles with confusing questions.
>>
>> This is quite straightforward, we should give opportunity to hear any
>> possible issues/concerns that may warrant considerations for possible
>> immunity/waiver for ICANN in other for her to better serve the community
>> without affecting existing accountability mechanisms. If ICANN is
>> incorporated in another country, we would still be exploring the same
>> question.
>>
>> I for one do not know what significant issue exist except the one
>> relating to OFAC and I think Parminder mentioned a few other but please can
>> you just allow the opportunity to hear those issues/concerns and let's
>> address them to the extent feasible.
>>
>> I am not a lawyer but if there is anything I know about lawyers is that
>> they can confuse a non-legal mind, because right now I have no idea of what
>> we are trying to achieve any longer and I don't want to believe that is the
>> goal ;-)
>>
>> Regards
>>
>> On 1 Mar 2017 11:55 PM, "Greg Shatan" <gregshatanipc at gmail.com> wrote:
>>
>>> All,
>>>
>>> Any other thoughts on these questions?  I may take off my rapporteur hat
>>> and offer a few of my own, but I prefer to wait until others have weighed
>>> in.
>>>
>>> Greg
>>>
>>>
>>> *Greg Shatan *C: 917-816-6428 <(917)%20816-6428>
>>> S: gsshatan
>>> Phone-to-Skype: 646-845-9428 <(646)%20845-9428>
>>> gregshatanipc at gmail.com
>>>
>>>
>>> On Wed, Mar 1, 2017 at 11:53 AM, Greg Shatan <gregshatanipc at gmail.com>
>>> wrote:
>>>
>>>> Paul & Jorge,
>>>>
>>>> In a sense, you are both right.
>>>>
>>>> The questions I posed were not directly about immunity.  Rather, they
>>>> inquired about (a) whether any GAC members agreed with Parminder's
>>>> characterization of the thinking of (at least some) GAC members and (b)
>>>> whether any other participants agreed with the other points made by
>>>> Parminder.
>>>>
>>>> However, the second and third questions, assuming the same answer would
>>>> be true for any particular jurisdiction, lead inexorably to consideration
>>>> of immunity (since the thinking is that it would be unfair to subject ICANN
>>>> to the law of any jurisdiction).
>>>>
>>>> The fourth question has no direct relationship to immunity.
>>>>
>>>> The fifth question implies the possible consideration of immunity, but
>>>> doesn't require it.
>>>>
>>>> Greg
>>>>
>>>>
>>>> *Greg Shatan *C: 917-816-6428 <(917)%20816-6428>
>>>> S: gsshatan
>>>> Phone-to-Skype: 646-845-9428 <(646)%20845-9428>
>>>> gregshatanipc at gmail.com
>>>>
>>>>
>>>> On Wed, Mar 1, 2017 at 9:29 AM, Paul Rosenzweig <
>>>> paul.rosenzweig at redbranchconsulting.com> wrote:
>>>>
>>>>> Well .. that’s interesting, as I understood it as completely about
>>>>> immunity.  J  The idea seemed to me, at least, to be about how ICANN
>>>>> should be immune from US law (or any law) that was not democratically
>>>>> agreed upon by all citizens of the world.  Certainly, in the context of
>>>>> what Paraminder was talking about on the call to which this referred, it
>>>>> seemed that was what the questions were about
>>>>>
>>>>>
>>>>>
>>>>> P
>>>>>
>>>>>
>>>>>
>>>>> Paul Rosenzweig
>>>>>
>>>>> paul.rosenzweig at redbranchconsulting.com
>>>>>
>>>>> O: +1 (202) 547-0660 <(202)%20547-0660>
>>>>>
>>>>> M: +1 (202) 329-9650 <(202)%20329-9650>
>>>>>
>>>>> VOIP: +1 (202) 738-1739 <(202)%20738-1739>
>>>>>
>>>>> www.redbranchconsulting.com
>>>>>
>>>>> My PGP Key: https://keys.mailvelope.com/pk
>>>>> s/lookup?op=get&search=0x9A830097CA066684
>>>>>
>>>>>
>>>>>
>>>>> *From:* Jorge.Cancio at bakom.admin.ch [mailto:Jorge.Cancio at bakom.adm
>>>>> in.ch]
>>>>> *Sent:* Wednesday, March 1, 2017 9:15 AM
>>>>> *To:* paul.rosenzweig at redbranchconsulting.com;
>>>>> ws2-jurisdiction at icann.org
>>>>> *Subject:* AW: [Ws2-jurisdiction] FW: Questions based on Parminder's
>>>>> statements in the last meeting about GAC participation
>>>>>
>>>>>
>>>>>
>>>>> Dear Paul
>>>>>
>>>>>
>>>>>
>>>>> Thanks for this info. I did not remember it in the context of the
>>>>> issue of immunities as it seems to me only weakly related to it, at most,
>>>>> but, again, perhaps I’m missing something… “immunities” is not even
>>>>> mentioned in the questions…
>>>>>
>>>>>
>>>>>
>>>>> Regards
>>>>>
>>>>>
>>>>>
>>>>> Jorge
>>>>>
>>>>>
>>>>>
>>>>>
>>>>>
>>>>> *Von:* ws2-jurisdiction-bounces at icann.org [
>>>>> mailto:ws2-jurisdiction-bounces at icann.org
>>>>> <ws2-jurisdiction-bounces at icann.org>] *Im Auftrag von *Paul Rosenzweig
>>>>> *Gesendet:* Mittwoch, 1. März 2017 15:04
>>>>> *An:* ws2-jurisdiction at icann.org
>>>>> *Betreff:* [Ws2-jurisdiction] FW: Questions based on Parminder's
>>>>> statements in the last meeting about GAC participation
>>>>>
>>>>>
>>>>>
>>>>> Seun/All
>>>>>
>>>>>
>>>>>
>>>>> This is the questionnaire, my response, and David’s supplement.  It is
>>>>> the first one I found in my files, but there were other answers as well
>>>>>
>>>>>
>>>>>
>>>>> Paul
>>>>>
>>>>>
>>>>>
>>>>> Paul Rosenzweig
>>>>>
>>>>> paul.rosenzweig at redbranchconsulting.com
>>>>>
>>>>> O: +1 (202) 547-0660 <(202)%20547-0660>
>>>>>
>>>>> M: +1 (202) 329-9650 <(202)%20329-9650>
>>>>>
>>>>> VOIP: +1 (202) 738-1739 <(202)%20738-1739>
>>>>>
>>>>> www.redbranchconsulting.com
>>>>>
>>>>> My PGP Key: https://keys.mailvelope.com/pk
>>>>> s/lookup?op=get&search=0x9A830097CA066684
>>>>>
>>>>>
>>>>>
>>>>> *From:* ws2-jurisdiction-bounces at icann.org [
>>>>> mailto:ws2-jurisdiction-bounces at icann.org
>>>>> <ws2-jurisdiction-bounces at icann.org>] *On Behalf Of *McAuley, David
>>>>> *Sent:* Wednesday, February 22, 2017 12:41 PM
>>>>> *To:* ws2-jurisdiction at icann.org
>>>>> *Subject:* Re: [Ws2-jurisdiction] Questions based on Parminder's
>>>>> statements in the last meeting about GAC participation
>>>>>
>>>>>
>>>>>
>>>>> I agree with Paul.
>>>>>
>>>>>
>>>>>
>>>>> The only thing to add concerns the fourth point.
>>>>>
>>>>>
>>>>>
>>>>> I think Paul is correct on the fourth point, including where he say
>>>>> that so long as ICANN has any interests/assets/effects in a country, it
>>>>> cannot effectively avoid that jurisdiction.
>>>>>
>>>>>
>>>>>
>>>>> In addition, many countries have treaties/arrangements to enforce
>>>>> final judgments from other countries – these may be bilateral, regional, or
>>>>> even globally multilateral treaties. So it may turn out that ICANN cannot
>>>>> avoid a judgment even if it fled the realm, taking all of its interests,
>>>>> assets, and effects with it.
>>>>>
>>>>>
>>>>>
>>>>> David
>>>>>
>>>>>
>>>>>
>>>>> David McAuley
>>>>>
>>>>> International Policy Manager
>>>>>
>>>>> Verisign Inc.
>>>>>
>>>>> 703-948-4154 <(703)%20948-4154>
>>>>>
>>>>>
>>>>>
>>>>> *From:* ws2-jurisdiction-bounces at icann.org [
>>>>> mailto:ws2-jurisdiction-bounces at icann.org
>>>>> <ws2-jurisdiction-bounces at icann.org>] *On Behalf Of *Paul Rosenzweig
>>>>> *Sent:* Wednesday, February 22, 2017 11:57 AM
>>>>> *To:* 'Greg Shatan' <gregshatanipc at gmail.com>; 'ws2-jurisdiction' <
>>>>> ws2-jurisdiction at icann.org>
>>>>> *Subject:* [EXTERNAL] Re: [Ws2-jurisdiction] Questions based on
>>>>> Parminder's statements in the last meeting about GAC participation
>>>>>
>>>>>
>>>>>
>>>>> Greg/All
>>>>>
>>>>>
>>>>>
>>>>> My responses are as follows (questions repeated for clarity):
>>>>>
>>>>>
>>>>>
>>>>> *First, for any GAC members, is it your position that you agree with
>>>>> Parminder's statements regarding GAC members?*
>>>>>
>>>>>
>>>>>
>>>>> Not applicable.
>>>>>
>>>>>
>>>>>
>>>>> *Second, for all participants, do you agree that only a law that has
>>>>> been democratically arrived at by all the citizens of the world can be
>>>>> applied to ICANN?  Are you aware of any such body of law?*
>>>>>
>>>>>
>>>>>
>>>>> I do not agree.  To begin with there is no realistic possibility of
>>>>> any law being created that has been democratically arrived at  by all
>>>>> citizens of the world.  To say that only this law can apply to ICANN is to
>>>>> say that no law at all can apply to ICANN.  I am not aware of any body of
>>>>> law that would satisfy this criteria, as almost all international law is
>>>>> adopted by nations, not by the citizens of the world, and it is not the
>>>>> case that all of the nations participating in the creation of an
>>>>> international body of law are themselves democratically representative.
>>>>>
>>>>>
>>>>>
>>>>> *Third, for all participants, do you agree that US law cannot be
>>>>> applied to ICANN because it has only been democratically arrived at by US
>>>>> citizens?*
>>>>>
>>>>>
>>>>>
>>>>> I do not agree.  US law can and will apply to any institution that is
>>>>> subject to it.  That include people who are US citizens; companies that do
>>>>> business in the US and anyone who is present in the US.  The same of course
>>>>> is true of every nation in the world – the all assert jurisdiction over
>>>>> citizens, residents, and companies/individuals with substantial interests
>>>>> that effect their country.  If instead of “cannot” (a descriptive) you mean
>>>>> “should not” (a normative) I disagree as well.  First, of course, there is
>>>>> no real use in establishing a norm that cannot practically be realized.
>>>>> Second, and more importantly, subjecting ICANN to US law (and also to the
>>>>> laws of other States) is precisely how we achieve accountability.  In the
>>>>> absence of applicable law, ICANN becomes unaccountable.
>>>>>
>>>>>
>>>>>
>>>>> *Fourth, for all participants, do you agree that if ICANN is sued in a
>>>>> jurisdiction where it has an office, other than its jurisdiction of
>>>>> incorporation and loses, that ICANN can avoid complying with the judgment
>>>>> by closing its office in that jurisdiction?*
>>>>>
>>>>>
>>>>>
>>>>> I do not agree.  This is simply wrong as a matter of law in the US, in
>>>>> Germany, and in Britain, which are the three countries whose law I am
>>>>> familiar with. I imagine it is also wrong for many (most?) other nations.
>>>>> So long as ICANN has any interests/assets/effects in a country, it cannot
>>>>> effectively avoid that jurisdication.  I would also note that the
>>>>> underlying suggestion (that ICANN seek to avoid valid judgements rendered
>>>>> by courts in a jurisdiction) is fundamentally lawless and that ICANN should
>>>>> not be in a position of suggesting that it can avoid the rule of law by
>>>>> artificial means of closing its operations.
>>>>>
>>>>>
>>>>>
>>>>> *Fifth, assuming for the sake of discussion that "ICANN primarily is a
>>>>> body with a global government function and only secondarily, an US
>>>>> nonprofit," what is the relevance, if any, to our primary tasks of
>>>>> enhancing ICANN's accountability and determining whether ICANN's
>>>>> accountability is negatively affected by its current jurisdictional set-up?*
>>>>>
>>>>>
>>>>>
>>>>> As far as I can tell, this is irrelevant.  [It is also wrong, but you
>>>>> insisted on assuming the premise.]   More to the point, the status of ICANN
>>>>> as a US non profit is an essential part of the accountability mechanisms
>>>>> that we just spend many thousands of hours creating.
>>>>>
>>>>>
>>>>>
>>>>>
>>>>>
>>>>> Paul
>>>>>
>>>>>
>>>>>
>>>>>
>>>>>
>>>>> Paul Rosenzweig
>>>>>
>>>>> paul.rosenzweig at redbranchconsulting.com
>>>>>
>>>>> O: +1 (202) 547-0660 <(202)%20547-0660>
>>>>>
>>>>> M: +1 (202) 329-9650 <(202)%20329-9650>
>>>>>
>>>>> VOIP: +1 (202) 738-1739 <(202)%20738-1739>
>>>>>
>>>>> www.redbranchconsulting.com
>>>>>
>>>>> My PGP Key: https://keys.mailvelope.com/pk
>>>>> s/lookup?op=get&search=0x9A830097CA066684
>>>>>
>>>>>
>>>>>
>>>>> *From:* ws2-jurisdiction-bounces at icann.org [
>>>>> mailto:ws2-jurisdiction-bounces at icann.org
>>>>> <ws2-jurisdiction-bounces at icann.org>] *On Behalf Of *Greg Shatan
>>>>> *Sent:* Monday, February 20, 2017 10:12 PM
>>>>> *To:* ws2-jurisdiction <ws2-jurisdiction at icann.org>
>>>>> *Subject:* [Ws2-jurisdiction] Questions based on Parminder's
>>>>> statements in the last meeting about GAC participation
>>>>>
>>>>>
>>>>>
>>>>> All,
>>>>>
>>>>>
>>>>>
>>>>> On our last call there were some remarks by Parminder about the
>>>>> position of GAC members regarding ICANN.  It was not clear to me that GAC
>>>>> members actually held the beliefs ascribed to them.  We were not able to
>>>>> determine this on the call, one way or the other.  I've now excerpted the
>>>>> relevant sections of the transcript and confirmed them against the audio.
>>>>> These sections are attached.  In addition to the question about the GAC,
>>>>> these statements raise a few other questions:
>>>>>
>>>>>
>>>>>
>>>>> *First, for any GAC members, is it your position that you agree with
>>>>> Parminder's statements regarding GAC members?*
>>>>>
>>>>>
>>>>>
>>>>> *Second, for all participants, do you agree that only a law that has
>>>>> been democratically arrived at by all the citizens of the world can be
>>>>> applied to ICANN?  Are you aware of any such body of law?*
>>>>>
>>>>>
>>>>>
>>>>> *Third, for all participants, do you agree that US law cannot be
>>>>> applied to ICANN because it has only been democratically arrived at by US
>>>>> citizens?*
>>>>>
>>>>>
>>>>>
>>>>> *Fourth, for all participants, do you agree that if ICANN is sued in a
>>>>> jurisdiction where it has an office, other than its jurisdiction of
>>>>> incorporation and loses, that ICANN can avoid complying with the judgment
>>>>> by closing its office in that jurisdiction?*
>>>>>
>>>>>
>>>>>
>>>>> *Fifth, assuming for the sake of discussion that "ICANN primarily is a
>>>>> body with a global government function and only secondarily, an US
>>>>> nonprofit," what is the relevance, if any, to our primary tasks of
>>>>> enhancing ICANN's accountability and determining whether ICANN's
>>>>> accountability is negatively affected by its current jurisdictional set-up?*
>>>>>
>>>>>
>>>>>
>>>>> Thank you.
>>>>>
>>>>>
>>>>>
>>>>> Greg
>>>>>
>>>>>
>>>>>
>>>>>
>>>>>
>>>>> *Greg Shatan*
>>>>>
>>>>> C: 917-816-6428 <(917)%20816-6428>
>>>>> S: gsshatan
>>>>> Phone-to-Skype: 646-845-9428 <(646)%20845-9428>
>>>>> gregshatanipc at gmail.com
>>>>>
>>>>> _______________________________________________
>>>>> Ws2-jurisdiction mailing list
>>>>> Ws2-jurisdiction at icann.org
>>>>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>>>>>
>>>>>
>>>>
>>>
>>> _______________________________________________
>>> Ws2-jurisdiction mailing list
>>> Ws2-jurisdiction at icann.org
>>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>>>
>>>
>

-- 
------------------------------------------------------------------------

*Seun Ojedeji,Federal University Oye-Ekitiweb:      http://www.fuoye.edu.ng
<http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email:
<http://goog_1872880453>seun.ojedeji at fuoye.edu.ng
<seun.ojedeji at fuoye.edu.ng>*

Bringing another down does not take you up - think about your action!
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