My apologies, but I will be unable to keep late hours today and therefore not be able to at the plenary meeting. Tomorrow is the most important festival in India and have some commitments in the morning.... I have made some clear points below, one is about the main cause of my objection to the recs and the report as the process was vitiated, and then I ask two specific determinations to be made by the group -- which issues are in the bold -- I will be glad for specific responses to be made to them. parminder On Tuesday 17 October 2017 08:09 PM, parminder wrote:

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 a**n 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). *Aga**in, request CCWG and CCWG to make a clear, yes**/ no, determination on this issue.*

parminder

On Tuesday 17 October 2017 06:46 PM, Paul Rosenzweig wrote:

...

Please note my apology for the Plenary meeting tomorrow.  I will be on a  plane somewhere over the eastern seaboard of the United States.

 

Please accept this note as my reflecting my full support for the two recommendations presented by the subgroup and the expression of my hope that the Plenary will accept them for first reading and agree to them as final recommendations at the second reading in Abu Dhabi (which I will also be unable to attend).

 

I also join fully in Milton Mueller’s observation that the minority dissenting reports are not really dissents (in the sense of objecting to the actual recommendations made) but are more properly characterized as lamentations that the work of the subgroup did not reach a broader consensus for what the proponents perceive as even more substantive reform.  I opposed their proposals in the subgroup as impractical and unwise and continue to do so now.  To the extent the Plenary considers these dissents I would urge that their concerns be tabled and that the plenary move forward with the consensus recommendations before it.

 

Paul

 

Paul Rosenzweig

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*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Greg Shatan *Sent:* Monday, October 16, 2017 11:37 PM *To:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Subject:* [Ws2-jurisdiction] Plenary Reading of Jurisdiction Subgroup Draft Report

 

All,

 

I'd like to remind you that at the upcoming CCWG-Accountability Plenary on October 18 at 19:00 UTC, there will be a *first reading of the draft recommendations*. 

 

If it passes this first reading, it will be presented for a second reading at the Face-to-face meeting on 27 October.

 

If it fails to pass a second reading at the 27 October meeting, it cannot be included in the final report.

 

If it fails to pass a first reading at the 18 October meeting it would require exceptional circumstances to have it pass a second reading at the 27 October meeting.

 

Please attend the Plenary session so that your views are heard, and so you can hear the views of other members of the Plenary.

 

Greg

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