Dear All Thank you for this very constructive exchange. I fully concur with the views expressed by Pedro. It is pretty clear that we need a stable and predictable legal and jurisdictional environment, and those requirements could certainly be included in the Bylaws as a way to ensure the compliance with the accountability measures designed. But I see no point in setting in stone what exact jurisdiction must that be now or in the future, as we would be in practical terms precluding other jurisdictions that could perfectly fit and comply with these requirements (in and out the USA) to host the organization in the long run. To put it bluntly, we ought to set the legal needs and conditions in the Bylaws, but not rigidly set or determine only one of the several possible solutions in those Bylaws. The abovementioned is consistent with the GAC input into the process regarding this issue ("Likewise, the GAC is of the view that the CCWG elaborate on the implications for ICANN's mission and its accountability associated with jurisdictional differences among the actors involved and legal jurisdictional aspects applicable to ICANN"). In this regard, I would like as well to second as well the wording put forward by Pedro: "The CCWG will identify eventual gaps in the California State law with respect to the implementation of recommended accountability powers and, in a subsequent phase, examine alternative jurisdictions where those requirements could be implemented to a larger extent". Best regards Rafa GAC_SPAIN De: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] En nombre de Phil Corwin Enviado el: jueves, 26 de marzo de 2015 17:19 Para: Pedro Ivo Ferraz da Silva; Carlos Raúl Gutiérrez CC: Accountability Cross Community Asunto: Re: [CCWG-ACCT] RES: Cochairs Statement - Istanbul (23-24March 2015) Pedro and Carlos: Thanks very much for the complimentary statements regarding my comment. It's not for me to say what will ultimately be acceptable to NTIA and Congress. As this is an issue to be resolved I will continue to contribute to the CCWG's consideration of it. Very best, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: Pedro Ivo Ferraz da Silva [mailto:pedro.ivo@itamaraty.gov.br] Sent: Thursday, March 26, 2015 12:04 PM To: Carlos Raúl Gutiérrez; Phil Corwin Cc: Accountability Cross Community Subject: RES: [CCWG-ACCT] RES: Cochairs Statement - Istanbul (23-24 March 2015) Dear Phil, Also my gratitude for your comments. You said "A commitment to US/CA jurisdiction [...] simply provides a predictable and stable legal environment for the foreseeable future for an organization that operates in large part via contracts and their enforcement, and ensures that the legal jurisdiction is the one that the accountability measures were designed to operate effectively within". This is probably true, but instead of singling out a specific national jurisdiction and thereby "seal for all time" this aspect, why not define some requirements for the jurisdiction (e.g. stable legal environment, predicable regime, etc) and include those in the bylaws? Would that not be sufficient and a viable compromise between the multistakeholder community and the government of the United States? Roelof, With respect to what we tried to agree in the meeting, I would rephrase your suggestion to something like: "The CCWG will identify eventual gaps in the California State law with respect to the implementation of recommended accountability powers and, in a subsequent phase, examine alternative jurisdictions where those requirements could be implemented to a larger extent". Regards, Pedro ________________________________ De: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [accountability-cross-community-bounces@icann.org] em nome de Carlos Raúl Gutiérrez [crg@isoc-cr.org] Enviado: quinta-feira, 26 de março de 2015 12:15 Para: Phil Corwin Cc: Accountability Cross Community Assunto: Re: [CCWG-ACCT] RES: Cochairs Statement - Istanbul (23-24 March 2015) Dear Phil, thank you for the clarity of your comments from the point of view the non-legally-trained observers. It makes a lot of sense to me. Carlos Raúl Gutiérrez _____________________ email: crg@isoc-cr.org<mailto:crg@isoc-cr.org> Skype: carlos.raul +506 8335 2487 (cel) +506 4000 2000 (home) +506 2290 3678 (fax) _____________________ Apartado 1571-1000 San Jose, COSTA RICA On Mar 26, 2015, at 9:02 AM, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> wrote: Thanks to Jordan and Greg for their feedback on this issue of ICANN jurisdiction. Of course nothing in this world can ever be "sealed for all time". We are talking about something to be settled for the foreseeable future and, perhaps even more important, accepted by consensus within the multistakeholder community and thereby not constituting the new "irritation" replacing NTIA's counterparty role for disgruntled parties. A commitment to US/CA jurisdiction does not provide the US government with any special control over ICANN. It simply provides a predictable and stable legal environment for the foreseeable future for an organization that operates in large part via contracts and their enforcement, and ensures that the legal jurisdiction is the one that the accountability measures were designed to operate effectively within. I concur that "the California jurisdiction works just fine for everything we need to do now, and can foresee for the future". Cherry-picking the AOC in regard to which bits wind up in the Bylaws will certainly raise questions about the parts left behind, especially given the likelihood that the current bilateral AOC will be dissolved once the transition is completed. This issue is not yet a "breakdown point" but it is quite important as both as a matter of accountability measure effectiveness and, yes, as a political matter. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: Jordan Carter [mailto:jordan@internetnz.net.nz] Sent: Thursday, March 26, 2015 10:38 AM To: Greg Shatan Cc: Phil Corwin; Accountability Cross Community Subject: Re: [CCWG-ACCT] RES: Cochairs Statement - Istanbul (23-24 March 2015) Thanks Greg, Phil. I am confident we are aware in the CCWG that we can't unilaterally amend the AOC. However, it is also clear that we can choose which bits we propose to incorporate in the ICANN Bylaws. Not incorporating some bits has no effect on the existing agreement between ICANN and the United States government. I would note that in respect of the jurisdiction conversation, we have a multistakeholder process at work in designing this transition. If the question of a "sealed for all time" jurisdiction question derails the transition - either by meaning the community can't accept ICANN being locked in California forever and thus declines to agree a transition, or the United States not accepting a transition that doesn't include that lock - then that will be the outcome of the multistakeholder process. The NTIA did not define perpetual U.S. presence as a requirement for the transition, after all. Certainly I hope that this dilemma does not prove to be a breakdown point. I say all the above as an individual who thinks the California jurisdiction works just fine for everything we need to do now, and can foresee for the future. best, Jordan On 26 March 2015 at 16:26, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: I second Phil's email and hope that some clarity can be brought to those unable to participate in the entire CCWG meeting. I also want to remind the CCWG that ICANN cannot unilaterally amend the Affirmation of Commitments. The AoC can only be amended by mutual consent of the parties. The U.S. jurisdictional requirement will be there until amended by the parties, or the AoC is terminated. If we want to get into discussing terminating the AoC, that is a whole other discussion, and an immense step to consider. Greg Shatan On Thu, Mar 26, 2015 at 10:08 AM, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> wrote: I see from the post below that this issue of ICANN's future jurisdiction has become "a most delicate matter" and remains unresolved and subject to further discussion within the CCWG. This is a pivotal and very important issue, as the accountability mechanisms are being designed (with the assistance of two outside law firms) to be consistent with California law and may not operate effectively within another legal jurisdiction context. Further, if there is not a commitment to remain within US jurisdiction for the foreseeable future (as CEO Chehade pledged in Congressional testimony last month) it will raise significant political barriers to NTIA approval of and Congressional acquiescence to a final transition and accountability package. For those of us unable to participate remotely in all the CCWG discussions earlier this week, it would be most appreciated if more specificity could be provided as soon as possible as to what the various perspectives are on this matter and how it is proposed to resolve them, since the final determination would seem to be a rather binary decision - either the AOC provision committing to US jurisdiction is incorporated within the Bylaws, or it is not. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Thomas Rickert Sent: Thursday, March 26, 2015 6:22 AM To: Pedro Ivo Ferraz da Silva Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] RES: Cochairs Statement - Istanbul (23-24 March 2015) Dear Pedro, you are correct. We should have mentioned that we discussed it. As this is a most delicate matter and since we agree we would suggest language to frame the next steps (you will remember we had not agreed on concrete language), I suggest we use the next upcoming opportunity to share the progress with the community when we have an agreed language on the matter. Thanks for your understanding and for your thoughtful contributions during the meeting. Best, Thomas Am 26.03.2015 um 11:17 schrieb Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br<mailto:pedro.ivo@itamaraty.gov.br>>: Dear Alice, CCWG-colleagues, Thanks for the links. I just regret the fact that the CoChairs have missed to refer to the important debate the CCWG has held with respect to the way moving forward on the issue of jurisdiction. As Mathieu Weill mentioned during the second day, this is one of the main issues of concern of individuals outside this group and I believe the community deserved at least to be briefly informed about this subject. Regards, Pedro ________________________________ De: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] em nome de Alice Jansen [alice.jansen@icann.org<mailto:alice.jansen@icann.org>] Enviado: quarta-feira, 25 de março de 2015 12:13 Para: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Assunto: [CCWG-ACCT] Cochairs Statement - Istanbul (23-24 March 2015) Dear all, This is to inform you that the CoChairs statement (pasted below) may be found at: https://www.icann.org/news/announcement-2015-03-25-en A video interview with CoChair Thomas Rickert is also available - see: https://www.youtube.com/watch?v=vVof6v0MguE These links will be added to your wiki pages. Thanks, Best regards Alice CCWG-Accountability Co-Chairs Statement Istanbul, 25 March 2015 | Thomas Rickert, León Sánchez & Mathieu Weill Members and participants of the Cross Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability)<https://community.icann.org/display/acctcrosscomm/CCWG+on+Enhancing+ICANN+Ac...> met in Istanbul, Turkey, on 23-24 March 2015. The meeting<https://community.icann.org/pages/viewpage.action?pageId=52890276> was attended in-person by 42 members and participants. A number of participants and observers joined the meeting remotely using the virtual meeting room. Three Advisors<https://community.icann.org/display/acctcrosscomm/Advisors> also participated. Guided by the four basic building blocks<https://community.icann.org/display/acctcrosscomm/Building+Blocks> identified at ICANN 52 in Singapore, the group further discussed and refined accountability mechanisms that need to be either implemented or, at least, committed to before the transition of the IANA stewardship can take place. The meeting made progress on three main areas: * Enhancing ICANN's Mission and Core Values; * Strengthening the existing independent review process; * Mechanisms for community empowerment. Specifically, the group discussed changes that should be made to the Mission and Core Values inICANN's Bylaws. For example, the group discussed how key provisions of the Affirmation of Commitments<https://www.icann.org/en/about/agreements/aoc/affirmation-of-commitments-30s...> (AoC) could be reflected into the Bylaws. Additionally, the group worked on strengthening the existing independent review process suggesting improvements to its accessibility and affordability, and discussed process design including establishment of a standing panel with binding outcomes and panel composition (diversity etc.). The IRP panel decisions would be guided by ICANN's Mission and Core Values. With regards to mechanisms for community empowerment, the group identified powers and associated mechanisms including the ability to: * recall the ICANN Board of Directors; * approve or prevent changes to the ICANN Bylaws, Mission and Core Values; * reject Board decisions on Strategic Plan and budget, where the Board has failed to appropriately consider community input. The CCWG-Accountability supported the concept of a Fundamental Bylaw that would provide additional robustness to key provisions. The Fundamental Bylaw would apply to: * the mission; * the independent review process; * the power to veto Bylaw changes; * new community powers such as recall of the Board and the right of the community to veto certain Board actions. Changes to the Fundamental Bylaws would require high standards for approval by the community. The notion of an empowered community involved discussion of community representation, i.e. who constitutes the community. The CCWG-Accountability is also aware that to wield these new powers, the community, however it is constituted, must itself meet high standards of accountability. ICANN's accountability would also be enhanced by ensuring its operations and processes are more globally inclusive. The group has engaged two law firms to provide independent legal advice and confirm feasibility of the suggested frameworks. The firms are Adler & Colvin and Sidley & Austin. As work progresses, all recommendations will be subject to the stress tests against contingencies already identified. The stress test methodology has been successfully tested against the draft accountability mechanisms. The CCWG-Accountability is confident that their proposed mechanisms will satisfy the needs of the CWG-Stewardship1<https://www.icann.org/news/announcement-2015-03-25-en#_ftn1> as they look to stronger accountability protections. The CCWG-Accountability and CWG-Stewardship Co-Chairs met to update and fully brief each other on the progress made so far. They outlined key areas of accountability that the CCWG-Accountability Co-Chairs considered are most relevant for the current and ongoing work of the CWG-Stewardship. The CCWG-Accountability Co-Chairs will brief the CWG-Stewardship in the opening part of their face-to-face meeting on Thursday, 26 March. Next Steps: The CCWG-Accountability will continue refining its recommendations. The community is expected to provide feedback during a public comment period to be held before ICANN 53, Buenos Aires meeting. The results of the public comment period will inform further deliberations during that meeting. The group is developing an engagement plan to ensure its proposals are widely known and understood, and to encourage comprehensive response to proposals during the public comment period. The CCWG-Accountability Co-Chairs recognize the outstanding volunteer work that has produced these substantive proposals in a very short period of time. The community's effort has been exceptional. About the CCWG-Accountability The CCWG-Accountability was established to ensure that ICANN's accountability and transparency commitments to the global Internet community are maintained and enhanced in the absence of the historical relationship with the U.S. Government. The group has divided its work into two work streams (WS): * WS1 is focused on identifying mechanisms enhancing ICANN accountability that must be in place or committed to within the timeframe of the IANA Stewardship Transition; * WS2 is focused on addressing accountability topics for which a timeline for developing solutions and full implementation may extend beyond the IANA Stewardship Transition. The CCWG-Accountability consists of 177 people<https://community.icann.org/pages/viewpage.action?pageId=50823970>, organized as 26 members<https://community.icann.org/pages/viewpage.action?pageId=50823968>, appointed by and accountable to chartering organizations, 151 participants<https://community.icann.org/pages/viewpage.action?pageId=50823968>, who participate as individuals, and 46 mailing list observers<https://community.icann.org/display/acctcrosscomm/Mailing+List+Observers>. The group also includes one ICANN Board liaison, one ICANN staff representative, and one former ATRT member who serves as a liaison. In addition, there are 4 ICG members who participate in the CCWG-Accountability, including two who serve as liaisons between the two groups. Seven Advisors<https://www.icann.org/news/announcement-2014-12-17-en> have also been appointed to contribute research and advice, and to bring perspectives on global best practices to enrich the CCWG-Accountability discussion. The CCWG-Accountability is an open group: anyone interested in the work of the CCWG-Accountability, can join as a participant or observers. Participants or observers may be from a chartering organization, from a stakeholder group or organization not represented in the CCWG-Accountability or currently active within ICANN, or self-appointed. For more information on the CCWG-Accountability or to view meeting archives and draft documents, please refer to their dedicated wiki<https://community.icann.org/display/acctcrosscomm/CCWG+on+Enhancing+ICANN+Ac...>. A video interview with CCWG-Accountability Co-Chair Thomas Rickert can be seen here<https://www.youtube.com/watch?v=vVof6v0MguE>. ________________________________ 1<https://www.icann.org/news/announcement-2015-03-25-en#_ftnref1> Cross Community Working Group (CWG) to Develop an IANA Stewardship Transition Proposal on Naming Related Functions _______________________________________________ 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 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com/> Version: 2015.0.5751 / Virus Database: 4306/9294 - Release Date: 03/13/15 Internal Virus Database is out of date. _______________________________________________ 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 -- Jordan Carter Chief Executive InternetNZ 04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> Skype: jordancarter A better world through a better Internet ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com/> Version: 2015.0.5751 / Virus Database: 4306/9294 - Release Date: 03/13/15 Internal Virus Database is out of date. _______________________________________________ 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 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.5751 / Virus Database: 4306/9294 - Release Date: 03/13/15 Internal Virus Database is out of date.