[Ws2-jurisdiction] RES: mandate re ccTLD issues
Greg Shatan
gregshatanipc at gmail.com
Mon Sep 18 06:50:09 UTC 2017
All,
First, I would like to clarify that Jordan is a participant in this
Subgroup (see https://community.icann.org/display/WEIA/Jurisdiction).
Second, the "seizure" of a ccTLD (if that were allowed) would lead to a
request for redelegation of the ccTLD. Presumably, the current manager of
the ccTLD would dispute that redelegation demand. The PDP that Jordan
refers to would cover all disputes relating to redelegation of a ccTLD.
It seems we are being asked to recommend that the ccNSO PDP on ccTLD
disputes exclude disputes relating to attempted redelegations result from a
seizure. This would mean that any dispute mechanism for ccTLD
redelegations would be unavailable to the current ccTLD manager. This
raises a few issues:
- Can this Subgroup and the CCWG make a recommendation on the scope of a
ccTLD PDP (here, that the upcoming ccNSO PDP exclude disputes of ccTLD
redelegations arising from a seizure of the ccTLD)?
- Can this Subgroup and the CCWG make a recommendation that ccTLD
managers will be barred from using the ccNSO dispute resolution procedure
(DRP) to contest a redelegation because of the circumstances leading to
that redelegation?
- Who is this recommendation being made to?
- If it is ICANN, then a "recommendation" is in fact something that
the ICANN Board must adopt and put into action unless the Board rejects
it. (So, "recommendation" is probably an understatement of the
true effect
in that case.)
- Would the ICANN Board accept these recommendations, and could it
then impose these recommendations on the ccNSO PDP?
- Could it impose these recommendations on all ccTLD managers
(whether or not ccNSO members)?
- If it is the ccNSO, then that runs into the issue (faced several
times in WS1) of the capacity of the CCWG to make
recommendations directly
to SO/ACs and not to the ICANN BOard. My recollection of WS1 is that we
determined the CCWG could not not make recommendations to any
SO/AC. Even
if the CCWG could make such a recommendation, what would the force and
effect of such a recommendation be? What power in our charter
or the ICANN
Bylaws would force the SO/AC to comply with this recommendation? Unless
there is such power, then the SO/AC would be free to reject the
recommendation. (So, "recommendation" is probably an
overstatement of the
true effect in this case.).
- Putting all this aside, would there be broad support in this Subgroup
for either of these recommendations?
On the other hand, it may be that we are not being asked to limit the ccNSO
or ccTLD managers in any way. In other words, a dispute regarding an
attempt to redelegate a ccTLD as a result of a seizure could use the new
ccNSO DRP. If that's the case, what are we being asked to do?
- Make a recommendation that, if adopted, would compel ICANN to seek to
immunize ccTLDs from seizure in judicial actions anywhere in the world?
- Or just in the US, allowing seizure to be attempted in any other
court?
- Or everywhere but the home court of the country associated with ccTLD
(keeping mind that ccTLDs are managed in various ways, by various kinds of
entities)?
- (Assuming for the sake of argument that we have the power to make such
a recommendation in the first place,) would there be broad support in this
Subgroup for any of these recommendations?
I would be curious to know how members of the Subgroup would answer these
questions, and any other questions that come to mind.
Greg
On Mon, Sep 18, 2017 at 12:43 AM, Kavouss Arasteh <kavouss.arasteh at gmail.com
> wrote:
> Dear Jordan
>
> Dear All,
>
> Thank you very much for your prompt reply as a participant to the CCWG and
> indirectly to the subgroup.
>
> The example I gave was not and is not and will not be categorize as
> dispute.
>
> There was no dispute there was referring to ccTLD as being an ATTACHED
> PROPERTY.
>
> This ihas Nothing to do with the Policy that you referred to.
>
> We have full right to recommend who such case should be dealt with without
> recognizing any right for any Government or its Court to deal with that
> issue.
>
> You are diverging the view as we are not talking of delegation or
> redelegation or transfer or revocation .We are talking of seizure. Thjis is
> purely a jurisdictional issue and has no relevance to PDP.
>
> You are trying to associate that to PDP which is incorrect.
>
> Please allow us to do our work and kindly not be confused with the PDP.
>
> Perhaps there are people who wish to do so which is totally
> counterproductive.
>
> Regards
>
> Kavouss
>
> On Mon, Sep 18, 2017 at 4:54 AM, Jordan Carter <jordan at internetnz.net.nz>
> wrote:
>
>> Dear all, dear Kavouss
>>
>> Thank you for your email.
>>
>> The PDP I am referring to is that set out in the ICANN bylaws for the
>> ccNSO: <https://www.icann.org/resources/pages/governance/bylaws-en/
>> #annexB>
>>
>> I have tried to be as clear as I can be on the process question. The
>> policy regarding delegations of ccTLD managers is in RFCs and has most
>> recently been understood through the lens of Framework of Interpretation, a
>> joint effort between the ccNSO and the GAC (see https://features.icann.or
>> g/adoption-framework-interpretation-cctld-delegations-and-redelegations
>> for 2015 Board adoption of the report).
>>
>> Arising from that work the ccNSO has commenced a PDP dealing with the
>> first of two issues, that being how to deal with the retirement of a ccTLD.
>>
>> There is another PDP to come, on how to resolve disputes regarding the
>> delegation, revocation and retirement of ccTLDs.
>>
>> It seems to me that the example you raise below is one that would give
>> rise to a dispute, and it is the mechanism to resolve such disputes that is
>> not clear today. That's why the ccNSO will conduct a PDP to make it clear.
>>
>> My interventions have aimed only to remind everyone in this group that
>> the CCWG can't make policy on this subject. It has no authority or scope to
>> do so, because policy on these ccTLD subjects is the responsibility of the
>> ccNSO.
>>
>> My purpose in offering that reminder is so that all of the participants
>> in the group can choose where to focus their discussion. There might be
>> other matters where the group can make recommendations with more impact.
>> The group might think that offering views on those is more important. Or,
>> it might think that offering views for the ccNSO to consider is more
>> important. I haven't got a view either way - the ccNSO's sole
>> responsibility for making policy on ccTLD matters isn't in doubt.
>>
>> I just want to make sure that everyone is clear about what this group can
>> do, and on the specific point of ccTLD policy, what it cannot do. I have no
>> view about the GNSO. I am not suggesting this group or the CCWG "consult"
>> the ccNSO per se. Even if the ccNSO could respond with an opinion about
>> jurisdiction matters, that would still be of no use to the CCWG in making
>> recommendations. Any recommendations that dealt with ccTLD policy would
>> lead to the CCWG's recommendations on the subject being unable to be
>> adopted by the ICANN Board.
>>
>> Since this is only one very narrow matter in the wide range of
>> jurisdiction-related topics, I am sure there is no need to close this group
>> or deny Greg the right to keep doing the hard work he is doing to be the
>> rapporteur in this interesting and vital area.
>>
>> All best regards,
>>
>> Jordan
>>
>>
>> On 18 September 2017 at 02:47, Arasteh <kavouss.arasteh at gmail.com> wrote:
>>
>>> Dear Jordan
>>> I am not sure what type of PDP you suggest for unilateral decision of
>>> American court for delegation or transfer of .ir to third party .
>>> We wish to limit such type of order as well as the potential influence
>>> of US government or any other government to interfere with the ccTLD of any
>>> other country based on founded or non founded claims
>>> If neither ICANN not any other entity is authorised to intervene or
>>> interfere with ccTLD of any country or any geographic territory that
>>> equally applies to US government, US court and say other government and its
>>> court
>>> Fortunately New Zealand or U.K. ccTLD were not yet subject to such
>>> interference
>>> Pls kindly clarify your position . In other word are you supporting such
>>> interference or opposing to that
>>> Reply to Milton
>>> If you believe that the sub group should consult GNSO and Jordan and
>>> Nigel believe that the subgroup should consult ccNSO to address such
>>> disturbing unilateral influence of US government and its court and any
>>> other government and its court then we need to close the shop of Grec and
>>> stop all discussions
>>> Regards
>>> Kavouss
>>>
>>> Sent from my iPhone
>>>
>>> On 15 Sep 2017, at 22:25, Mueller, Milton L <milton at gatech.edu> wrote:
>>>
>>> The most that the CCWG would have the scope and competence to do with
>>> any such recommendation would be to make it as a suggestion to the ccNSO to
>>> consider. Neither the Board nor any other party can require the ccNSO to
>>> conduct a PDP, and without such a PDP, no policy affecting ccTLD matters
>>> can be made.
>>>
>>>
>>>
>>> That’s fine. The same is true of the GNSO and the ASO for that matter.
>>> This subgroup identifies problems and recommends solutions.
>>> It’s up to others to develop policies to implement the solutions.
>>>
>>>
>>>
>>> Dr. Milton Mueller
>>>
>>> Professor, School of Public Policy
>>>
>>> Georgia Institute of Technology
>>>
>>>
>>>
>>> <image002.jpg> <http://www.internetgovernance.org/>
>>>
>>> _______________________________________________
>>> Ws2-jurisdiction mailing list
>>> Ws2-jurisdiction at icann.org
>>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>>>
>>>
>>
>>
>> --
>>
>> *Jordan Carter*
>>
>> Chief Executive
>>
>> InternetNZ
>>
>> Office: +64 4 495 2118 <04-495%202118> | Mobile: +64 21 442 649
>> <021%20442%20649> | Skype: jordancarter
>>
>> Email: jordan at internetnz.net.nz
>>
>>
>> <https://2017.nethui.nz/>
>>
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>>
>
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