[Ws2-jurisdiction] Updated "Applicable Law and Choice of Venue Provisions" Recommendation

[Greg Shatan]

Kavouss,

Thank you for your views on the role of the rapporteur.  I hope you will
consider mine.

Best regards,

Greg

On Wed, Sep 27, 2017 at 1:27 PM, Arasteh <kavouss.arasteh at gmail.com> wrote:

> Greg
> I fully support Jorge
> Your role is to collect the views , consolidate them but NOT add anything
> on that
> Kavouss
>
>
> Sent from my iPhone
>
> On 27 Sep 2017, at 21:19, Greg Shatan <gregshatanipc at gmail.com> wrote:
>
> Jorge,
>
> Once again, you puzzle me.  I believe that I am being both neutral and
> transparent (everything is happening on the list and in the documents, so I
> have no idea what is not "transparent").   Clearly, your draft changes were
> merely suggestions, and my discussion of it was in that context.  I'm sorry
> that was not apparent to you.
>
> Nonetheless, I'm sure it would help the Subgroup understand your
> suggestions if you would explain how your suggested text maintains the
> option of a fixed choice of California/US law.  The reasons that is not
> clear are in my prior email. I'm hoping that it is not difficult to answer,
> and will aid the group in considering your suggestions.
>
> Just to be clear, based on my understanding and experience with
> Chairs/rapporteurs, it is very much part of the role to ask follow-up
> questions to draw out details, eliminate ambiguity, and resolve potential
> areas of concern.  I'm sorry you believe that makes no sense.  Hopefully
> you will reconsider.
>
> In any event, I would appreciate your assisting the Subgroup by clarifying
> the ambiguities I have asked about.  Detailed discussions of process while
> not discussing substance will not get the Subgroup where it needs to go.
>
> Best regards,
>
> Greg
>
>
>
> On Wed, Sep 27, 2017 at 12:51 PM, <Jorge.Cancio at bakom.admin.ch> wrote:
>
>> Dear Greg,
>>
>> I feel that this questioning and interrogatory modus regarding my
>> suggestions in an open and ongoing doc makes no sense.
>>
>> You said I had "eliminated" something - that is not only absurd (I was
>> suggesting) but inaccurate (I suggested that a free standing option is a
>> possible outcome).
>>
>> Please just refrain to making such interventions in an open and ongoing
>> process. That is not the role of the Rapporteur. It is not neutral and
>> lacks transparency.
>>
>> best
>>
>> Jorge
>>
>>
>> ________________________________
>>
>> Von: Greg Shatan <gregshatanipc at gmail.com>
>> Datum: 27. September 2017 um 18:38:03 MESZ
>> An: Cancio Jorge BAKOM <Jorge.Cancio at bakom.admin.ch>
>> Cc: ws2-jurisdiction <ws2-jurisdiction at icann.org>
>> Betreff: Re: [Ws2-jurisdiction] Updated "Applicable Law and Choice of
>> Venue Provisions" Recommendation
>>
>> Jorge,
>>
>> Perhaps I did not understand one thing about your draft.  You say that
>> the "California" option is not foreclosed, and that it is a potential
>> outcome of the Menu approach.
>>
>> As I understand it, the Menu approach allows each registry to choose (or
>> perhaps, to negotiate for) one out of a defined list of jurisdictions
>> (e.g., one from each ICANN Geographic Region).
>>
>> The "California" approach fixes California/US law as the sole choice of
>> law for all registry agreements.
>>
>> I don't see how the California approach can be a possible outcome of the
>> Menu approach.  Do you mean that it is technically possible that every
>> registry will choose California law from the Menu as their individual
>> outcome?  Even if that is the outcome (and the chances of that are
>> vanishingly small), that is still an outcome and not the "California"
>> option, which is distinguished by a fixed choice of law.
>>
>> Please help me and the Subgroup understand better.
>>
>> Thank you,
>>
>> Greg
>>
>> On Wed, Sep 27, 2017 at 11:47 AM, <Jorge.Cancio at bakom.admin.ch<mailto:
>> Jorge.Cancio at bakom.admin.ch>> wrote:
>> Dear Greg,
>>
>> I feel we have different views of what the rapporteur role is. The facts
>> are that there was an open document, where all Subgroup members could
>> suggest edits. Raphaël and I did so. I saw Raphaëls text and he saw mine –
>> and did not object to the way I saw things. Nobody else did comment or
>> object to my suggested wording. Moreover, the “menu” approach had been
>> supported on list, with different nuances, on list by various other
>> subgroup participants.
>>
>> You made changes, taking a specific view not supported by anyone else in
>> the document comments, and after making those changes you immediately sent
>> out the text with your revised text – hence not giving any chance to react
>> to your “reverting” or “putting back”.
>>
>> I find that irregular and improper to the role of the Rapporteur. And it
>> is quite puzzling that you pretend that with my “suggestions” I was closing
>> any debate – I was just proposing wording, which as I said was not objected
>> nor commented by anyone during more than one week.
>>
>> Btw: I have never taken out the Californian option – I presented it as a
>> potential outcome of the overall Menu approach. See attached the word
>> document I saved in my PC after making my suggestions to the Google Doc on
>> September 19.
>>
>> Best
>>
>> Jorge
>>
>>
>>
>>
>>
>> Von: Greg Shatan [mailto:gregshatanipc at gmail.com<mailto:
>> gregshatanipc at gmail.com>]
>> Gesendet: Mittwoch, 27. September 2017 17:36
>>
>> An: Cancio Jorge BAKOM <Jorge.Cancio at bakom.admin.ch<mailto:
>> Jorge.Cancio at bakom.admin.ch>>
>> Cc: ws2-jurisdiction <ws2-jurisdiction at icann.org<mailto:
>> ws2-jurisdiction at icann.org>>
>> Betreff: Re: [Ws2-jurisdiction] Updated "Applicable Law and Choice of
>> Venue Provisions" Recommendation
>>
>> Jorge,
>>
>> These changes were made in my role as rapporteur.  A key aspect of the
>> rapporteur role is helping the group find outcomes the group broadly
>> supports.  Part of this is avoiding a push to define "common ground"
>> prematurely.  In my view as rapporteur, the group is not yet at the point
>> where a "common ground" can be declared, and other options eliminated.  You
>> will see that today's agenda includes a discussion of the various options.
>>
>> I am as eager as you are to find common ground, and I thank you for
>> offering your assistance in identifying what you believe to be common
>> ground.  However, I believe that it's premature to identify a result at
>> this time.  Thus, I edited the text to keep our options open.  (I don't
>> believe it's accurate to say I "reverted" the text, since all your
>> suggestions are still in the document, and only a few changes were made by
>> me, to reflect where we stand in our process.)  This in no way prevents the
>> group from considering whether the "Menu" option is one where the Subgroup
>> can find common ground.  It merely reflects that we have not already done
>> so.
>>
>> I'm a little puzzled also by your statement that I am "intervening in an
>> open discussion within the group taking very specific positions, instead of
>> letting the debate go forward and helping it reaching consensus when
>> needed." The changes I made were to back the document away from the very
>> specific positions you inserted, in order to keep the debate and discussion
>> open.  I'm sorry that was not clear to you.
>>
>> In the end, this text needs to be revised to identify a result and a
>> recommendation, unless there is a divergence of opinion (and thus no common
>> ground, although this itself would be a "result").  We can also discuss
>> whether to identify the options we did not adopt and the reasons for doing
>> so, or to take your approach and eliminate them from the document (as you
>> did with the "California" option).  I hope we can move through this
>> rapidly, while avoiding hasty conclusions, and arrive at a document that
>> reflects a finding of common ground in the group.
>>
>> I hope this clarifies matters.
>>
>> Best regards,
>>
>> Greg
>>
>> On Wed, Sep 27, 2017 at 1:49 AM, <Jorge.Cancio at bakom.admin.ch<mailto:
>> Jorge.Cancio at bakom.admin.ch>> wrote:
>> Dear Greg,
>>
>> In the pdf this is not clear.
>>
>> Are these changes made in your capacity as rapporteur? or are they
>> personal contributions?
>>
>> I guess they are the latter. In such case this should be made clear in
>> order to avoid any misunderstandings.
>>
>> I note for the record that I find troublesome that (without making that
>> clear) you are once again intervening in an open discussion within the
>> group taking very specific positions, instead of letting the debate go
>> forward and helping it reaching consensus when needed.
>>
>> I cannot speak for Raphaêl of course, bit I wonder why you "revert" to
>> his initial text, which I had suggested to amend aiming at a "common
>> ground" I saw emerging, when Raphaël himself had not done so or had not
>> objected to my suggestions.
>>
>> Hence, I would like to see the document distributed without your changes
>> or if you insist to circulate the version you have changed that you clearly
>> identify your edits as your personal opinion.
>>
>> best
>>
>> Jorge
>>
>>
>> ________________________________
>>
>> Von: Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com
>> >>
>> Datum: 27. September 2017 um 07:40:41 MESZ
>> An: Cancio Jorge BAKOM <Jorge.Cancio at bakom.admin.ch<mailto:
>> Jorge.Cancio at bakom.admin.ch>>
>> Cc: ws2-jurisdiction <ws2-jurisdiction at icann.org<mailto:
>> ws2-jurisdiction at icann.org>>
>> Betreff: Re: [Ws2-jurisdiction] Updated "Applicable Law and Choice of
>> Venue Provisions" Recommendation
>>
>> Jorge,
>>
>> Yes.  This is reflected in the Google Doc, and if you mouse over the
>> changes in Word.
>>
>> Greg
>>
>> On Wed, Sep 27, 2017 at 1:39 AM, <Jorge.Cancio at bakom.admin.ch<mailto:
>> Jorge.Cancio at bakom.admin.ch><mailto:Jorge.Cancio at bakom.admin.ch<mailto:
>> Jorge.Cancio at bakom.admin.ch>>> wrote:
>> Dear Greg,
>>
>> The changes in "red ink" are from you?
>>
>> Thanks for clarifying.
>>
>> regards
>>
>> Jorge
>>
>>
>> ________________________________
>>
>> Von: Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com
>> ><mailto:gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>>>
>> Datum: 27. September 2017 um 07:33:38 MESZ
>> An: ws2-jurisdiction <ws2-jurisdiction at icann.org<mailto:
>> ws2-jurisdiction at icann.org><mailto:ws2-jurisdiction at icann.org<mailto:
>> ws2-jurisdiction at icann.org>>>
>> Betreff: [Ws2-jurisdiction] Updated "Applicable Law and Choice of Venue
>> Provisions" Recommendation
>>
>> All,
>>
>> Attached is an updated version of this recommendation in Word and PDF
>> formats, found at https://docs.google.com/docume
>> nt/d/1xAyla8FTaL7jZ0D2rYtAzQUr3gEnirTKiAG-kqD0ZSs/edit?usp=sharing
>> (please make all changes in SUGGEST mode).
>>
>> Please review and be prepared to discuss.
>>
>> Thank you.
>>
>> Greg
>>
>>
>>
>>
>>
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