Dear CCWG colleagues, Thank you for the valuable comments. Please find bellow the inputs of the Brazilian Government to the issue of jurisdiction: 'Jurisdiction' is one of the core issues to be dealt with in the CCWG-Accountability as it influences directly the way ICANN's accountability processes are structured and operationalized. The fact that ICANN today operates under the legislation of the state of California grants the corporation certain rights but also imposes some limits with respect to the accountability mechanisms it can adopt. Brazil is fully aware that at the present stage - when the CCWG is devoted to agreeing on recommendations that needs to be in place prior to the stewardship transition (WS1 recommendations) - this group should not make decisions on possible 'alternatives of jurisdictions'. We believe this concern deserves a more profound and better grounded debate and should therefore be considered a priority of the WS2 debate. However, there are some immediate concerns with respect to this topic that needs to be either decided or at least made evident in the context of WS1: 1) The present AoC between the government of the United States and ICANN makes direct references to the corporation's legal presence. As you are aware, paragraph 8 of the AoC requires ICANN to maintain its current legal presence in the United States. Since AoC provisions are of immediate concern for the stewardship transition, it is expected that this group makes recommendations also on paragraph 8 (as ST #15 shows). In the view of the Brazilian Government, provisions in paragraph 8 should be translated into a set of 'jurisdiction requirements' (stable environment, predictable regime, etc) and should not impose a specific national legislation. 2) A permanent Independent Review Panel is being considered as an enhanced mechanism for independent third-party review. One of the main aspects to be taken into account when the details of the IRP are being sorted out is its 'de facto' independence, which also raises concerns about 'jurisdiction'. The IRP should be a truly impartial body and no litigating party should potentially benefit from or be harmed by its specific legal presence in country A or Z. 3) The CCWG has agreed on a working methodology which makes a clear separation between requirements and implementation. For Brazil, 'requirements' are understood as those accountability objectives required by the community and 'implementation' are the specific mechanisms that needs to be in place in order to accomplish the requirements previously defined. While specifying those mechanisms, the CCWG should also clearly indicate those cases when requirements are partially met, either because the group wasn't able to conceive a better structured process to that date or because ICANN's current legal presence imposes certain restrictions. This kind of clarity is in line with principle of 'transparency' under which this group operates and will be essential for the following work of the CCWG. 4) For the reason above, the legal analysis to be provided by the external law firm and the expert's group should already include considerations on jurisdictional limitations and options. Again: in that way, the CCWG will be transparent by showing the eventual limitations of its recommendations and will be able to provide important input for WS2 or other future accountability recommendation work. 5) In line with the points indicated above, we consider the framework proposed by Carlos Gutierrez and summarized by Mathieu Weill to be adequate for our discussion on this specific topic. See you soon! Regards, Secretário Pedro Ivo Ferraz da Silva Divisão da Sociedade da Informação (DI) Ministério das Relações Exteriores - Brasil T: + 55 61 2030-6609 Secretary Pedro Ivo Ferraz da Silva Division of Information Society (DI) Ministry of External Relations - Brazil T: + 55 61 2030-6609 -----Mensagem original----- De: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] Em nome de Mathieu Weill Enviada em: quinta-feira, 19 de março de 2015 17:55 Para: Greg Shatan; Carlos Raúl Gutiérrez Cc: accountability-cross-community@icann.org Assunto: Re: [CCWG-ACCT] Call for requirement on the issue of jurisdiction Dear Carlos, Dear Greg, Dear Colleagues, I fully agree that we need to focus our work on work stream 1 issue, as was recalled during our last meeting. Still, it is important however that we can explain why a specific topic was considered relevant for a work stream. Carlos, from your message, I understand that you suggest to identify the various layers of the jurisdiction issue. My understanding is that the following layers are mentioned in your messages : - place and jurisdiction of incorporation - jurisdiction of places of physical presence - governing law for contracts - ability to sue and be sued in a specific jurisdiction - tax system I would recommend we use this framework to clarify the associated requirements. For instance, and I stress this is just personal brainstorming, for contracts, they need to be in a stable and predictable legal regime. The place of incorporation should certainly be in a jurisdiction with strong corporate governance legislation, providing efficient accountability, but at the same time, enabling flexibility so that the multistakeholder model can be translated into this legal framework. Places of physical presence need to provide stable labour legal frameworks(to hire staff), and some level of flexibility for visas (to accomodate international staff and travel by community members) Physical presence should also take into account security concerns, both for the sake of staff as well as for operations. This is the kind of requirement (the above list is non exhaustive and can be challenged) we should look at to determine our next steps on this question. I hope this helps clarify and I encourage the colleagues who brought up this issue on the list to provide their input. best, Mathieu Le 18/03/2015 19:24, Greg Shatan a écrit : I agree with Carlos that the issue(s) of "jurisdiction" are multi-layered. It's also important to realize that the term "jurisdiction" is used to mean several different things (place of incorporation, places of physical presence, governing law, ability to sue and be sued, etc.), and discussions about jurisdiction often get jumbled up for this reason. However, I think there is a simple and more fundamental issue with regard to the discussion of "jurisdiction" (at least in the sense of "place of incorporation), before we even get to the substance of such a discussion.. It is very important for the CCWG to focus on Work Stream 1 items, since the IANA Transition is dependent on completion of these items. Discussion of ICANN's place of incorporation is a Work Stream 2 item and should not be dealt with in any depth until Work Stream 1 is complete. Put another way, the place of incorporation of ICANN will not be changing before the IANA Transition, and thus the possibility of such changes has no place in Work Stream 1. Furthermore, if the CCCWG were to advance any plan as part of Work Stream 1 to change the place of incorporation of ICANN after the IANA Transition, this would be rejected by the NTIA and thus would be an immense waste of time. This is not to say that discussions of "jurisdiction" (in all of its meanings and layers) should not take place. Quite the contrary. These are valid and important topics, and they should be given a full and complete airing. We just need to prioritize our work appropriately. Greg Shatan On Wed, Mar 18, 2015 at 1:38 PM, Carlos Raúl Gutiérrez <crg@isoc-cr.org<mailto:crg@isoc-cr.org>> wrote: Dear Mathieu, thank you for this invitation to comment. First of all I have to make a disclaimer that I`m not a lawyer and I feel that we a have a superb group of knowledgeable and expert lawyers around this issue and I have little to add to their discussions. Sometimes i’m even afraid to open my mouth and get hit back with a strong legal defence attitude, as recently happened to me trying to make sense of the freedom of expression the way I understand it. So let me talk of my personal perception on how this issue has been handled, which has not been satisfactory from my perspective. And my excuses to all readers if I’m off the mark again. * The DNS is more global than ever, in different languages and scripts, with many new contracts in the languages (and jurisdictions?) of the new players in new areas of the World. And I think this is very good for the globalisation of the Internet and in response of the search for competition, consumer trust and consumer choice, which for me are not only one of the 4 values of the AoC, but one of the most promising in terms of the future development of the Internet. * Every time the jurisdiction of the corporation itself is mentioned, I get the feeling that we get into a rather negative/defensive mode from different sides, particularly if people are sitting in front of lawmakers. When I started studying public finance and taxation long time ago all important global US corporations where based in Delaware (of all places). Today some of the most important users of the DNS are based in Luxembourg or Ireland to the chagrin of US Tax authorities. From my perspective until we don’t get an harmonised global tax system, private initiatives will be looking for the best balance between where do you business with whom, under or away from what jurisdiction. The recent case of a Hong Kong Bank subsidiary in Switzerland is a cautionary tele to keep in mind. * Then we have the scaremongers who worry not a bout watching soccer games, but about all the money its federation makes and does not get taxed and governed. i.e.FIFA. Obviously between those extreme points of view is difficult to have an effective discussion on the "issue of jurisdiction” as you call it, without explaining if we are talking about the narrow issues of the global DNS contracts the Board has to sign, or about the day to day operations of the Corporation, or the global accountability and transparency standards under which ALL (as per NetMundial Statement, section Roadmap) Internet entities should work, so that the systems remains as it is today (and ICANNs luck to draw the ticket and become the guinea pig). So my request is to please make clear on which layer are we talking about the jurisdiction issue and why is there a need for a change. For example * Is the jurisdiction hindering the globalisation of the DNS because of legal paperwork? * Is the jurisdiction hindering the operations of the corporation, from security and stability, COSTS (particularly for review and redress), tax, human resources, and other operational concerns? * Is the jurisdiction hindering the global public good in terms of access (including cost of access for users), human rights, freedom of expression, competition, etc.? And you don’t have the 3 layers I have proposed, you can choose 6 different ones, but make it clear from the outset for the benefit of the "legally challenged", so there is wider participation in this very interesting discussion. Best luck in Istambul Carlos Raúl Gutiérrez _____________________ email: crg@isoc-cr.org<mailto:crg@isoc-cr.org> Skype: carlos.raulg +506 8335 2487 <tel:%2B506%208335%202487> (cel) +506 4000 2000 <tel:%2B506%204000%202000> (home) +506 2290 3678 <tel:%2B506%202290%203678> (fax) _____________________ Apartado 1571-1000 San Jose, COSTA RICA On Mar 18, 2015, at 11:02 AM, Mathieu Weill <mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>> wrote: Dear Colleagues, During our call yesterday we decided to engage with you to gather input on a requirement based approach to the issue of jurisdiction which has been raised. So far this issue has been raised when discussing some of the stress tests, the incorporation of the AoC into the Bylaws, as well as in generic discussions. What we are looking for to ensure we keep our discussion at the level of accountability and root it into stakeholder expectations, are descriptions of accountability requirements that lead you (or some of you) to raise the question of jurisdiction. Topics such as applicable jurisdiction of Icann contracts have been raised so far for instance. Thank you in advance for contributing to shaping this important aspect of our work. responses are expected before March 20th so that we can organize work in Istanbul. Best -- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06 <tel:%2B33%201%2039%2030%2083%2006> mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr> Twitter : @mathieuweill ***************************** _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community -- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06 mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr> Twitter : @mathieuweill *****************************