Dear All
I am not sure to be able to participate in the plenary meeting tomorrow, that places place post midnight for me.
I would like the plenary to consider the dissenting opinion by Brazil and by me and provide a response on them.
I want to specifically make the following points, and seek response from CCWG and its Chair.
(1) My main concern is that the issue of "customised
immunity" was never given an "official" chance and space in the
jurisdiction sub-group's working, despite this being perhaps the
strongest issue being repeatedly raised by many members. There
was a deliberate dismissive attitude to it from the very start,
till the very end, by those who were conducting the process. In
fact, there remained a deliberate effort to not allow the
proposal of "customised immunity" to even be allowed to be made
clear, which is very different from the group accepting it.
Whether at the June 2017 meeting when CCWG chair lumped change
of location and/or place of incorporation of ICANN and the
customised immunity as one issue, and dismissed it, or in the
latest sub group's report which says the group discussed ICANN
change of location/ place of incorporation (which it never did,
nor anyone proposed it with any seriousness) but fails to
mention that many members kept raising the "customised immunity"
issue (which term does not even get a mention in the report), it
is most distressing how it was constantly attempted to be shown
that these two were the same issue, when in fact they are very
very different. And many members constantly went to great
lengths to explain the difference. As late as yesterday, Milton
Mueller in commenting on two dissent note,s again tries to make
it sound that the immunity proposal is really about setting up a
new inter-gov organisation or something !!
Now, if the process leaders were simply not ready to give even cognitive space to the main proposal of a big number of members - of customised immunity -- and accept its "very existence" as distinct from change of ICANN's location proposal -- incontrovertible evidence of which exists in the records -- where is the question of it being given due consideration in the process of consensus building, which by definition requires full consideration of all views? This is the main reason that, in my view, there did not exist a consensus building process, and thus the report and recommendations cannot be considered as consensus report/ recs. (Further explained in my dissent note.)
(2) With regard to the two sets of recs
actually made: I am most concerned by the observation in the
report that the sub-group, and by extension the CCWG, cannot ask
ICANN to amend its contract templates (of course only for future
contracts). Is this an appropriate observation in the
view of the CCWG and CCWG's chair? Did CWG-Stewardship and
CCWG- Accountability 1 not give many recommendation for ICANN to
make changes practically at every level, right up to its mission
statement, and bylaws, and setting up new subsidiary bodies? So,
if we can recommends changed to ICANN's bylaws, why cant we
recommend changes to its contract templates? I request the
CCWG plenary to make a clear determination on this question.
And if, as I expect CCWG to conclude, it is not a fact that we
cannot recommend ICANN to change its contract templates, then
one of the main recs by the sub-group is basically vitiated on
account of a wrong assumption, and the report should be returned
to it for re-development.
(3) The sub-group's report provides ICANN with a series of option on how the "choice of law" question could be handled. I would like like clarification on the status of these options. They look like all of them are presented as agreed by consensus, and thereby it is left to ICANN to adopt one or the other as it deems fit. Is this so? One of the options is to keep the status quo (no mention of choice of law) and another is to enforce a single choice of law on all contracts, that is the laws of the US and the state of California. My understanding then is that if now ICANN declares that henceforth no choice of law will be available in its Registry contracts and that all of them will necessarily be governed solely by laws of the US and that of the state of California, it can legitimately claim that it has done so in pursuance of a recommendation of CCWG (assuming that CCWG adopts the recs developed by the sub group). Again, request CCWG and CCWG to make a clear, yes/ no, determination on this issue.
parminder