October 2016 - Ws2-jurisdiction

Notes, recordings and transcript for WS2 Jurisdiction Subgroup Meeting #8 | 20 October16
by MSSI Secretariat Oct. 20, 2016

Oct. 20, 2016

Hello all, The notes, recordings and transcripts for the CCWG Accountability WS2 Jurisdiction Subgroup Meeting #8 | 20 October 16 will be available here; https://community.icann.org/x/-RC4Aw The copy of the notes can be found below. Thank you! Brenda & Yvette Notes (Including relevant parts of chat): 24 participants at start of call ________________________________ 1. Welcome Apologies: Cheryl Langdon-Orr Greg Shatan: Update from leadership call earlier this week. Looking for more participation from participants. Comments will be removed once the document is completed. Jorge Cancio (GAC Switzerland): I would request staff and/or the rapporteur to take on board also the comments on the margin. Greg Shatan: do not agree. If you have text please enter it. Vinay Kesari: Agree with Greg on Jorge's point - it would be difficult for staff/ rapporteurs to do that without inserting their own value judgments (except where it's a pure copy-paste of a comment into the body). Jorge Cancio (GAC Switzerland): I understand that we have to include our comments not as "comments", but as "suggestions" - otherwise valuable efforts and time are lost. Vinay Kesari: Jorge - absolutely. Farzaneh Badii: Vinay you need to put the doc on comment mode. That way automatically goes on suggestion mode when people sign in Kavouss Arasteh: We are not making progress. We have multiple fronts - there is no focusing on a given topic and we do not seem to be progressing on any of them. What should we focus on to have some progress? We need to prioritize. Farzaneh Badii: it's ok Greg. No group is making progress in some people's views. David McAuley: Could use a tutorial on google docs. Also GS how do we want to use the Google docs? Bernie Turcotte: Staff will post links to tutorials that are available (action item) Greg Shatan: Review of Google Docs modes. Pedro da Silva - [GAC Brasil]: If an alternative to google docs can be sought, I would be grateful. I have issues accessing it from work. Kavouss Arasteh: I have serious difficulties to have access to GD Parminder: I think that while entering into the google doc is necessary to have a collaborative document move along, it may be useful to get the important issues/ arguments/ justifications also to the enlist so that others can see and if needed weigh in on. Kavouss Arasteh: We have been working during WS1 in 3 Cross Community Group with redline doc. and everybody was happy Farzaneh Badii: I agree with that Parminder, I think we can discuss the most pressing issues on the mailing list as well Jorge Cancio (GAC Switzerland): I would also like to respectfully request that some empathy is developed and displayed for those of us who are not us law specialists - i.e. that an effort is made to understand the issue presented, without entering in endless debates about the exact meaning something has under US law specifically. Tijani Ben Jemaa: I remind everyone that ICANN makes Wiki tool that is available to all and works fine as this is what we use in ALAC. Farzaneh Badii: hmm I wonder if we really needed to spend 30 minutes discussing usage of google doc. Kavouss Arasteh: It is frustrating that at 8th meeting we are discussing "working Method "+ Farzaneh Badii: you bring it up Kavouss. 2. Multiple Layers of Jurisdiction. Matthew Shears: Greg do you think it is possible at this juncture to clean this doc up and post again as a consolidated text for comment Kavouss Arasteh: Why are these things layers of jurisdiction? Greg Shatan: this is based on the requirements of WS1 Recommendation 12 on Jurisdiction. Kasvouss Arasteh: would it not be to have this in tabular form where we could separate what is from the Annex 12 and then another column for comments etc. Similarly to what was done in Human Rights. Greg Shatan: this is different from the HR work which is charged with interpreting a Bylaws text. I will work on integrating comments etc. the next version of the layers document. 3. The influence of ICANN's existing jurisdictions relating to resolution of disputes (i.e., choice of law and venue) on the actual operation of policies and accountability mechanisms. David McAuley: This document gets, in part, to the notion of venue. IRP will be venue-less with the new rules. Jorge Cancio (GAC Switzerland): thanks to David for that info. What about the language of the proceedings? The rule is English, what about additional "official ICANN languages"? Farzaneh Badii: where can we enforce the award, and would online hearing be accepted as hearing in some jurisdictions? David McAuley (RySG): I better check on that Jorge rather than rely on memory - will do that and come to list with that Q+A Farzaneh Badii: I think it makes sense to be in English. Lowers the costs in general. Jorge Cancio (GAC Switzerland): And lowers the accessibility for many stakeholders Farzaneh Badii: not for many. That's an exaggeration. Which led ICANN to translate many things to 6 languages and their usage is absolutely unknown Jorge Cancio (GAC Switzerland): dear Farzaneh: language is an issue, for instance for many GAC members - before making general assertions we would need some data. Farzaneh Badii: yes exactly Jorge - so let's get the data then talk about accessibility. David McAuley (RySG): Jorge: Bylaw Article 4.3(l) says this: All IRP proceedings shall be administered in English as the primary working language, with provision of translation services for Claimants if needed. Jorge Cancio (GAC Switzerland): I guess that working in your mother language or at least one of the official languages helps for starters. That English is accessible for all interested is what would need to be supported by data, if you permit Farzaneh Badii: David, is it possible at this stage of IRP group work, to talk about enforcement? Jorge Cancio (GAC Switzerland) 2: Dear David, I suggest that you take that issue on board - at least to consider it, thanks! David McAuley (RySG): Will do what I can and keep you informed Jorge. Not sure what latitude there is now. Christopher Wilkinson: @Bylaw Article 4.3(l): That would not be acceptable in Europe in my experience. Jorge Cancio (GAC Switzerland) 2: @David: thx! Please keep me posted... Greg Shatan: Discussion of draft document. Jorge Cancio (GAC Switzerland) 2: when hearings are made electronically, what is the venue that is considered legally? Farzaneh Badii: yes, online hearing might not be accepted in some jurisdictions Greg Shatan: there have been contributions on this document and would ask everyone to go through these and make comments or add text. Vinay Kesari: Farzi, I think they have gone on record stating that local law would apply in some matters such as employment law, property law (with respect to renting premises for example). My last comment was in response to your earlier comment on jurisdictions where ICANN has offices, not incorporated Tijani Ben Jemaa: With IRP there is a standing panel. As to the type of disputes - there is something missing here - what about applicants for new gTLDs who are not contracted parties? Greg Shatan: I am uncertain about TBJ assertion that ICANN incorporation means IRP is California jurisdiction. Christopher Wilkinson: It would be very reassuring to confirm that IRP is NOT subject to CA law. The MAIN point about IRP is to ensure that it is accessible and affordable for ALL eventual complainants, including private individuals. CW Parminder: IRP is ICANN's internal arrangement. I am not sure it is an issue of jurisdiction, to be considered here. Farzaneh Badii: so there can be a choice of substantive law for IRP? Farzaneh Badii: IRP is not internal management Parminder it's like arbitration Parminder: Yes, appeal against or for enforcement of IRP decisions may be an issue of jurisdiction Jorge Cancio (GAC Switzerland) 2: IRP is a legal accountability mechanism with jurisdictional aspects Farzaneh Badii: it's binding I think, there might not be an appeal Greg Shatan 2: Influence/Effect/Consequence are all possibilities. Farzaneh Badii: so there can be a choice of substantive law for IRP? Kavouss Arasteh: We are moving in the right direction. We should not use the word Influence. David McAuley: The standing panel will be selected considering diversity. IRP cases will be decided vs the Bylaws and not any local laws. Greg Shatan 2: Q: What substantive law is applied in an IRP? However, we have to be careful with IRP given there is another group working on it. Kavouss Arasteh: re TBJ question is an important question and should be looked again and answered. Greg Shatan: will include this. David McAuley (RySG): Bylaw Article 4.3(v) is relevant here - I will read it is short. If push comes to shove the panel may have to address. Also rules say it will be a DeNovo decision. 4. Preparation of Status Report before Hyderabad Greg Shatan: Will draft a document and circulate for comment. 5. Hyderabad: What do want to accomplish in F2F? Kavouss Arasteh: Major questions should be brought up and we need to identify these before going to Hyderabad Tijani Bern Jemaa: There is no meeting of sub-groups. If there is a sub-group meeting, we have to know so we can prepare. Jorge Cancio (GAC Switzerland) 2: we need to engage in a fact finding exercise at some point of time, including on how well stakeholders have fared and perceived existing rules on applicable law, both in judicial, arbitration and internal mechanisms (such as IRP) Bernard Turcotte: there are no facilities or time available for sub-group meetings in Hyderabad. Greg Shatan: We should start thinking what questions we will have for ICANN legal and expert external legal advice. Everyone please continue to contribute. Adjourned - we have a meeting next week. Action Items: Staff to post links to tutorials on using Google Docs Greg Shatan to post draft status report for Hyderabad to group for comments by end of weekend.

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Multiple Layer of Jurisdictions Document
by Greg Shatan Oct. 20, 2016

Oct. 20, 2016

Here is a copy of the Google Doc as of now.

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Our work so far, and a way forward
by Greg Shatan Oct. 20, 2016

Oct. 20, 2016

All, In order to move forward, and based on the discussions so far, I suggest the following approach. First, we should continue the current approach of defining and refining the various layers of jurisdiction, and I encourage you all to go to the Google doc and add your views. https://docs.google.com/ document/d/1oE9xDIAJhr4Nx7vNO_mWotSXuUtTgJMRs6U92yTgOH4/edit?usp=sharing Second, we won't investigate changing ICANN's headquarters or incorporation jurisdiction at this time. However, it's not off the table -- if we identify an issue during our work and we can't find a less drastic way to deal with that issue, we will revisit this point at that time. We can then revisit the concerns that people have raised regarding such a recommendation in the context of a particular issue. Third, we should put aside "confirming and assessing the gap analysis" for the moment. There is still a diversity of views on what this "gap analysis" was and what we need to do to confirm and assess it. As a result, our time has been spent discussing the parameters of the assignment, rather than working on the assignment itself. I believe that we will be better able to define the scope of this item and move to substance, if we spend some time looking at the substance of an issue that is clearly within our scope. After we finish clarifying the multiple layers of jurisdiction, we should move to an issue that is clearly within our scope -- something we have to do. That way we can move to the substance of the issue and not spend a lot of time on "scope." An issue that is clearly within our scope relates to ICANN's jurisdictions for settlement of disputes (i.e., venue and choice of law). There should not be any question that this is within the scope of our group (Annex 12 refers to this as the "focus" for our group). Based on Annex 12, this involves looking at: "The influence that ICANN’s existing jurisdiction" relating to resolution of disputes "may have on the actual operation of policies and accountability mechanisms." I suggest that we examine this "influence" and determine what this "influence" is. Our work looking at venue and choice of law in the "multiple layers of jurisdiction" will help us in this task. A note on process -- it is very important that we focus on creating written material. In our calls, we should be working on and working from these written materials. Ultimately, these writings will feed into our deliverable. Put another way, you should focus your contributions on adding to the drafts (currently, the "layers of jurisdiction" document), rather than on relying solely on oral interventions in our calls -- after all we have 168 hours in a week, and only 1 hour for our call. I look forward to our upcoming call. Best regards, Greg

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Agenda for Jurisdiction Subgroup Meetings #8
by Greg Shatan Oct. 20, 2016

Oct. 20, 2016

All: Attached is the agenda for the upcoming meeting. Please continue to contribute to the "Layers of Jurisdiction" and "Influence of Jurisdiction" documents. Links are in the agenda and have also been circulated. Greg

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Our Task: What is the Influence of Existing Jurisdictions for Disputes on ICANN Policy and Accountability
by Greg Shatan Oct. 19, 2016

Oct. 19, 2016

As discussed in our last call, we will be looking at one of our core questions: What is the influence of ICANN’s existing jurisdiction(s) relating to resolution of disputes (i.e., choice of law and venue) on the actual operation of ICANN’s policies and accountability mechanisms? In order to provide a framework for this task, I've prepared a Google Doc, with a suggested structure and some initial information. Please contribute your thoughts directly to this document. If you are unable to access Google Docs, copies of the document are attached in Word and PDF. Contributions can be made in reply to this email, or by attaching the Word document with your contributions. These will then be transcribed to the Google Doc. Here is the link: https://docs.google.com/document/d/1_uxN8A5J3iaofnGlr5gYoFVKudgg_DuwDgIuyIC… Best regards, Greg

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Notes, recordings, transcript for WS2 Jurisdiction Subgroup Meeting #7 - 10 October 2016
by MSSI Secretariat Oct. 12, 2016

Oct. 12, 2016

Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #7– 10 October 2016 will be available here: https://community.icann.org/x/mxC4Aw A copy of the notes may be found below. Thank you. With kind regards, Brenda Brewer MSSI Projects & Operations Assistant ICANN - Internet Corporation for Assigned Names and Numbers Notes Notes (including relevant parts of chat): 16 participants at start of call. 1. Welcome Greg Shatan: No one on phone only. No changes to SOIs. 2. Discussion of Approach: Our work so far, and a way forward (see email) a. Changing ICANN's headquarters or incorporation jurisdiction i. Will not be investigated at this time ii. Not off the table -- If an issue is identified and we can’t find a less drastic solution, will revisit this point, including concerns raised, in the context of the identified issue. Greg Shatan: Is this proposal ok? No comments. Assume no objections. b. Confirm and Assessing Gap Analysis i. Discussion has largely been about scope and not about confirmation and assessment ii. Put to the side and revisit after work on substantive issue that is clearly “in scope” Greg Shatan: Any issues with the proposal? No comments. Assume no objections. c. We will continue discussion of Multiple Layers of Jurisdiction document Greg Shatan: No comments. Assume to objections. d. We will begin discussion of the “In Scope” Issue: The influence of ICANN’s existing jurisdictions relating to resolution of disputes (i.e., choice of law and venue) on the actual operation of policies and accountability mechanisms Greg Shatan: No comments. Assume to objections. Overall comments? David McAuley: Support the proposal overall and would propose doing D initially vs C. Greg Shatan: I think we need to spend a little time on C so we all have a common understanding of what we mean by jurisdiction. It is not meant to be an exhaustive review of the layers. David McAuley (RySG): Thanks Greg, sounds fine. Milton Mueller: Support GS approach. Uncertain why put aside the gap analysis? Greg Shatan: there has been a diversity views on this and no consensus by this group. Kavouss Arasteh 2: Greg, I think you have proposed to put aside GAP analysis, why? I have no problem if we start with layers and then come back to GAP Alaysis - can you assure that we will not take jurisdiction off the table 3. Multiple Layers of Jurisdiction (Multiple Layers of Jurisdiction document) Greg Shatan: Jurisdiction of Incorporation definition. No comments. Kavouss Arasteh 2: This document is written in a confusing manner perhaps to make it difficult to understand. It has been copied from the text of the WS1 which was also vague. Greg Shatan: Jurisdiction of Headquarters proposed definition. No issues Kavouss Arasteh 2: Grec, I have no problem for these cases , pls advise if there is an issue outside these places what would happened? the description of the multilayer as copied from the text of WS1 is vague ,unclear and requires streamlining - again and again, we should not just discuss the periphery of the case but the center of the issue Greg Shatan: Places of physical presence. David McAuley: Is ICANN incorporated in some of these other places of presence? Maybe ICANN legal can help. Greg Shatan: Ok to ask ICANN Legal - but to my understanding a company can only be incorporated once and in one place. You may have to register with local authorities for doing business. Kavouss Arasteh 2: 1. review the description as contained in WS1 and make it clear , understandable Samantha Eisner: ICANN is not incorporated anywhere else. It is a registered foreign office or branch office equivalent in all other places. Greg Shatan: Jurisdiction for Interpretation of contracts (choice of law or governing law). Tijani Ben Jemaa: The real issue is the choice of the judge. As to Jorge's comment - who has the choice of applicable law? Jorge Cancio (GAC Switzerland): the parties may in agreements determine the applicable law, as well as about the venue, provider etc of the dispute resolution. Greg Shatan: Doing that at the time of a dispute is always an issue. Always best to do ahead of time. Milton Mueller: you are saying that the Registry Agreement does not provide parties with choice of law? Jeff Neuman: correct @milton Milton Mueller: Same for RAA Jeff Neuman: same with Registrar Accreditation Agreement Jorge Cancio (GAC Switzerland): in the base registry agreement there are some provisions for specific cases where commitments conflict with applicable national law... Milton Mueller: Yes, Jorge that's what I thought Jeff Neuman: BUT, the venue is always in LA Jorge Cancio (GAC Switzerland): there are some specific rules for governmental entities and IGOs I think Jeff Neuman: For the Registrars it uses the American Arbitration Assocation Greg Shatan: Jurisdiction of Litigation David McAuley: WRT venue - we should not confuse with IRP which is essentially meant to be venue less. Jorge Cancio (GAC Switzerland): My comments in the Google Doc are pointers of issues that could be improved (i.e. they are on the normative level) - but it's true that first we need a good factual description of the current situation David McAuley (RySG): ok - will put the thought in google doc. Milton Mueller: NTIA requirements are no longer required and this should be removed. Greg Shatan: Think this is still valid. Samantha Eisner: Requirements derived from NTIA's criteria are included in the WS2 Bylaw in Article 27 Avri Doria: I believe the NTIA requirements remain in effect for WS2. Milton Mueller: How can they? Avri Doria: as Sam says they are part of the transition bylaws. after WS2, then it is arguable. Milton Mueller: NTIA transition requirements are just that: transition requirements. Jeff Neuman: So lets dismiss the work "NTIA" and substitute Article 27 of the Bylaws Pedro da Silva - [GAC Brasil]: Although I fully support the requirements set out for the transition, I agree with Milton here. Number 7 is not a proper layer. Greg Shatan: good points will clean up the document. Encourage everyone to put their comments in the Google doc. David McAuley (RySG): Thanks Greg - let us know when doc is cleaned up and we can go back in Tijani Ben Jemaa: Agree with MM - no need for this (7) layer here. Milton Mueller: Support deleting it and Article is not really relevant. David McAuley (RySG): I think Jeff's idea makes sense - call it art. 27 Greg Shatan: Invite everyone to look at Article 27 C. This applies to all sub-groups. Tatiana Tropina: I agree with David and Jeff makes sense for now. Milton Mueller: we can't change anything major "tomorrow" (vs NTIA requirements) Tatiana Tropina: I think they are not "requirements" anymore but rather principles we want to follow? Greg Shatan: encourage everyone to think about the next piece of work - item 4 of the agenda. Adjourned. Documents Presented · MultipleLayersofJurisdiction.pdf<https://community.icann.org/download/attachments/62394523/MultipleLayersofJ…>

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[CCWG-ACCT] [Ws2-staff_acct] Notes, recordings, transcript for WS2 Jurisdiction Subgroup Meeting #6_ 05 October 2016
by Yvette Guigneaux Oct. 11, 2016

Oct. 11, 2016

Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Jurisdiction Subgroup, Meeting #6 - 05 October 2016 will be available here: https://community.icann.org/x/RQi4Aw A copy of the notes may be found below. Thank you. Kindest Regards, Yvette Guigneaux Multi-Stakeholder & Strategic Initiative Assistant ICANN | Internet Corporation for Assigned Names & Numbers 12025 Waterfront Drive, Playa Vista, CA 90094 yvette.guigneaux(a)icann.org<mailto:yvette.guigneaux@icann.org> | www.icann.org<http://www.icann.org> ________________________________ WS2 - Jursidiction Subgroup Meeting #6 | Wednesday, 05 October 16| 13:00 UTC Notes (including relevant parts of chat): 20 participants at the start of the meeting. 1. Welcome * Greg Shatan: No changes. 2. Scope of our Work * Greg Shatan: I believe we have not yet settled the scope of our work. We can look at the EFFECTS of the place of incorporation. * Jorge Cancio (GAC Switzerland): Is there any new proposal on the scope of our work? We still have Annex 12 approved by the community in Marrakech - that should be our basis... * David McAuley: Annex 12, paragraph 30 seems pretty clear: At this point WS2's focus should be on the settlement of dispute jurisdiction issues - in that effort we should include confirming and assessing not the "gap" but the "gap analysis" -meaning, IMO, the provisions we have put in place for dispute resolutions - will they/do they work? * Jean-Jacques Subrenat: For item 3 on our agenda, I will refer to a document of which I was a co-author, "Improving Institutional Confidence of ICANN", see archive.icann.org/en/psc/iic/improving-confidence-ne.pdf * Jorge Cancio (GAC Switzerland): I feel the discussion on scope gets us into a circle... until we do not tackle the issues potentially under the scope agreed in Marrakech we won't see whether they are or not off-limits * Tatiana Tropina: It feels quite good - you miss the couple of calls due to the tight travel schedule, and here we go - moving headquarters, not moving headquarters. My opinion stays the same - this is completely out of scope. * Tatiana Tropina: Jorge, a rare case when I agree with you :D * David McAuley: Our job is to look at alternatives vs dispute resolution period. * Jean-Jacques Subrenat: 1) In "Improving Institutional Confidence" 2008-09, I as one of the co-authors had proposed the notion of "additional jurisdiction", rather than "alternative jurisdiction". This was important: ICANN Headquarters would not change, but jurisdiction could be added for non-contract aspects. * Phil Corwin: vs arguing if it is in scope - does it make any sense discussing this possibility given there are no gaps, we have spent much money and time on making this under California law. Looking at alternates would be a significant undertaking which would long expensive and arduous. Agree with DM vs our scope. I agree with one of the previous speakers (David?) that we could agree to distinguish 2 things, contract-related items (US/California jurisdiction) and other items (conflict resolution, etc). * Cheryl Langdon-Orr (CLO): I agree with David and Phil here * Greg Shatan: PC and DM seem like logical conclusions. Worth noting that the gNSO council has passed a condition on the CCWG budget that it could not support work in the CCWG wrt moving ICANN's location of incorporation. * Jorge Cancio: I wish to reiterate relative to scope - we have a scope from WS1 recommendation 12 - we should live with the AMBIGUITY for the moment. It would be more efficient to go to specific discussions and then we will see if there are issues that are out of scope. To have this scope beforehand is putting the cart before the horse. * Greg Shatan: PC's remarks have moved us past scope to the realism of moving ICANN. What are your thoughts on this JC. * Jorge Cancio: This is scope. (car analogy). * Greg Shatan: since the remit of this group is 9 months it would seem unrealistic to think we would change the engine on the car in that time. (reads JJS comments from chat because of audio issues). * Pedro da Silva: My comment is in line with JC - at this point of time this does not make sense and it is probable that when we complete our analysis of issues we will have the same conclusion but it will be stronger -so we should not deal with this at this point. * Finn Petersen, GAC - DK: Denmark is of the view that it is not within our scope to recommend moving ICANN's Place of Incorporation or Headquarters Location from California. But if anybody can point to potential problems, we might look into means to address such problems without changing ICANN's place of incorporation. * David McAuley: As a member of IRP there are issues that are related to IRP and touch on Jurisdiction. * Jorge Cancio (GAC Switzerland): @David: thanks, hope that we keep efforts in parallel well coordinated... * Greg Shatan: straw vote for this or not. * Tijani Ben Jemaa: uncomfortable with this. * Jorge Cancio (GAC Switzerland): For the reasons given I step away from such a straw poll * Greg Shatan: many of our participants are arguing for this which is why I am bringing this up. Many green ticks no objections. * Jean-Jacques Subrenat 2: @Greg: I agree that "moving the headquarters out of California" is not an urgent matter. We should examine what ADDITIONAL jurisdictions could achieve, for specific purposes. * Greg Shatan: We have now covered points 2 and 3 in the agenda. Let us move to item 5. 3. Is the Possibility of Moving ICANN's Place of Incorporation or Headquarters Location from California in Scope? * (see previous point) 4. Confirming and Assessing the Gap Analysis a. "Gap" analyzed in Work Stream 1 b. Result of Gap Analysis in Work Stream 1 c. How should we confirm the WorkStream 1 Gap Analysis? * (Skipped) 5. Multiple Layers of Jurisdiction * Greg Shatan: Presentation of the slide on Multiple Layers. * Jean-Jacques Subrenat: (continuing issues) Multiple layers is interesting but what are the purposes of having additional jurisdictions (additional vs alternate). Second remark (dropped audio), * Greg Shatan: Why are we not using Adobe audio JJS - most use it for visual but audio is on phone because of quality issues. Any comments on the slide? * Pedro da Silva: This is a good start. and how we should start our work. Would like a week to comment on this to see if we need to add to this. After that we could look at each of these as to how they affect the work of ICANN. * Phil Corwin: There is a difference between types of contracts - registries and registrars should probably be under US law just for uniformity. Other parties such as real estate in other countries is another issue. * Jean-Jacques Subrenat 2: @Greg: I suggest we use "additional jurisdictions" to avoid confusion about wanting to change headquarters or not. I was also saying it would be useful to examine several tasks where an additional jurisdiction would be useful, e.g. hiring people outside the US (employment, insurance, taxes). * Greg Shatan: A third category could be for the choice of law for enforcing the decisions of the Empowered Community. Encourage everyone to read JC's email. Contracts with contracted parties are silent on choice of law or venue - we should confirm this. Let us look and comment on the slide in Google doc for comments. Next meeting 1900UTC Monday. Adjourned.

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Agenda for Jurisdiction Subgroup Meeting #7
by Greg Shatan Oct. 10, 2016

Oct. 10, 2016

All, Here is the agenda for today's meeting, which follows the order of items discussed in my email yesterday "Our work so far, and a way forward." Greg

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Notes, recordings, transcript for WS2 Jurisdiction Subgroup Meeting #6 - 5 October 2016
by MSSI Secretariat Oct. 10, 2016

Oct. 10, 2016

Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #6– 5 October 2016 will be available here: https://community.icann.org/x/RQi4Aw A copy of the notes may be found below. Thank you. With kind regards, Brenda Brewer MSSI Projects & Operations Assistant ICANN - Internet Corporation for Assigned Names and Numbers Notes (including relevant parts of chat): 20 participants at the start of the meeting. 1. Welcome · Greg Shatan: No changes. 2. Scope of our Work · Greg Shatan: I believe we have not yet settled the scope of our work. We can look at the EFFECTS of the place of incorporation. · jorge cancio (GAC Switzerland): Is there any new proposal on the scope of our work? We still have Annex 12 approved by the community in Marrakech - that should be our basis... · David McAuley: Annex 12, paragraph 30 seems pretty clear: At this point WS2’s focus should be on the settlement of dispute jurisdiction issues – in that effort we should include confirming and assessing not the “gap” but the “gap analysis” –meaning, IMO, the provisions we have put in place for dispute resolutions – will they/do they work? · Jean-Jacques Subrenat: For item 3 on our agenda, I will refer to a document of which I was a co-author, "Improving Institutional Confidence of ICANN", see archive.icann.org/en/psc/iic/improving-confidence-ne.pdf<http://archive.icann.org/en/psc/iic/improving-confidence-ne.pdf> · jorge cancio (GAC Switzerland): I feel the discussion on scope gets us into a circle... until we do not tackle the issues potentially under the scope agreed in Marrakech we won't see whether they are or not off-limits · Tatiana Tropina: It feels quite good - you miss the couple of calls due to the tight travel schedule, and here we go - moving headquarters, not moving headquarters. My opinion stays the same - this is comletely out of scope. · Tatiana Tropina: Jorge, a rare case when I agree with you :D · David McAuley: Our job is to look at alternatives vs dispute resolution period. · Jean-Jacques Subrenat: 1) In "Improving Institutional Confidence" 2008-09, I as one of the co-authors had proposed the notion of "additional jurisdiction", rather than "alternative jurisdiction". This was important: ICANN Headquarters would not change, but jurisdiction could be added for non-contract aspects. · Phil Corwin: vs arguing if it is in scope - does it make any sense discussing this possibility given there are no gaps, we have spent much money and time on making this under California law. Looking at alternates would be a significant undertaking which would long expensive and arduous. Agree with DM vs our scope. I agree with one of the previous speakers (David?) that we could agree to distinguish 2 things, contract-related items (US/California jurisdiction) and other items (conflict resolution, etc). · Cheryl Langdon-Orr (CLO): I agree with David and Phil here · Greg Shatan: PC and DM seem like logical conclusions. Worth noting that the gNSO council has passed a condition on the CCWG budget that it could not support work in the CCWG wrt moving ICANN's location of incorporation. · Jorge Cancio: I wish to reiterate relative to scope - we have a scope from WS1 recommendation 12 - we should live with the AMBIGUITY for the moment. It would be more efficient to go to specific discussions and then we will see if there are issues that are out of scope. To have this scope beforehand is putting the cart before the horse. · Greg Shatan: PC's remarks have moved us past scope to the realism of moving ICANN. What are your thoughts on this JC. · Jorge Cancio: This is scope. (car analogy). · Greg Shatan: since the remit of this group is 9 months it would seem unrealistic to think we would change the engine on the car in that time. (reads JJS comments from chat because of audio issues). · Pedro da Silva: My comment is in line with JC - at this point of time this does not make sense and it is probable that when we complete our analysis of issues we will have the same conclusion but it will be stronger -so we should not deal with this at this point. · Finn Petersen, GAC - DK: Denmark is of the view that it is not within our scope to recommend moving ICANN’s Place of Incorporation or Headquarters Location from California. But if anybody can point to potential problems, we might look into means to address such problems without changing ICANN’s place of incorporation. · David McAuley: As a member of IRP there are issues that are related to IRP and touch on Jurisdiction. · jorge cancio (GAC Switzerland): @David: thanks, hope that we keep efforts in parallel well coordinated... · Greg Shatan: straw vote for this or not. · Tijani Ben Jemaa: uncomfortable with this. · jorge cancio (GAC Switzerland): For the reasons given I step away from such a straw poll · Greg Shatan: many of our participants are arguing for this which is why I am bringing this up. Many green ticks no objections. · Jean-Jacques Subrenat 2: @Greg: I agree that "moving the headquarters out of California" is not an urgent matter. We should examine what ADDITIONAL jurisdictions could achieve, for specific purposes. · Greg Shatan: We have now covered points 2 and 3 in the agenda. Let us move to item 5. 3. Is the Possibility of Moving ICANN’s Place of Incorporation or Headquarters Location from California in Scope? · (see previous point) 4. Confirming and Assessing the Gap Analysis a. “Gap” analyzed in Work Stream 1 b. Result of Gap Analysis in Work Stream 1 c. How should we confirm the WorkStream 1 Gap Analysis? · · (Skipped 5. Multiple Layers of Jurisdiction · Greg Shatan: Presentation of the slide on Multiple Layers. · Jean-jacques Subrenat: (continuing issues) Multiple layers is interesting but what are the purposes of having additional jurisdictions (additional vs alternate). Second remark (dropped audio), · Greg Shatan: Why are we not using Adobe audio JJS - most use it for visual but audio is on phone because of quality issues. Any comments on the slide? · Pedro da Silva: This is a good start. and how we should start our work. Would like a week to comment on this to see if we need to add to this. After that we could look at each of these as to how they affect the work of ICANN. · Phil Corwin: There is a difference between types of contracts - registries and registrars should probably be under US law just for uniformity. Other parties such as real estate in other countries is another issue. · Jean-Jacques Subrenat 2: @Greg: I suggest we use "additional jurisdictions" to avoid confusion about wanting to change headquarters or not. I was also saying it would be useful to examine several tasks where an additional jurisdiction would be useful, e.g. hiring people outside the US (employment, insurance, taxes). · Greg Shatan: A third category could be for the choice of law for enforcing the decisions of the Empowered Community. Encourage everyone to read JC's email. Contracts with contracted parties are silent on choice of law or venue - we should confirm this. Let us look and comment on the slide in Google doc for comments. Next meeting 1900UTC Monday. Adjourned.

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Fwd: [CCWG-ACCT] Fwd: FW: Adopted motion
by Greg Shatan Oct. 10, 2016

Oct. 10, 2016

I would like to draw this subgroup's attention to the motion below, which was adopted by the GNSO Council on September 29. In particular, please take a look at paragraph 4 of the "Whereas" clauses and paragraph 5 of the motion. Greg ---------- Forwarded message ---------- From: *Bernard Turcotte* <turcotte.bernard(a)gmail.com> Date: Tuesday, October 4, 2016 Subject: [CCWG-ACCT] Fwd: FW: Adopted motion To: Accountability Cross Community <accountability-cross-community(a)icann.org > *From:* Marika Konings *Sent:* Thursday, September 29, 2016 11:33 PM *To:* Glen de Saint Géry <Glen(a)icann.org <javascript:_e(%7B%7D,'cvml','Glen(a)icann.org');>> *Subject:* Adopted motion *Motion - GNSO Validation of CCWG-Accountability Budget Request* Made By: James Bladel Seconded by: Julf Helsingius, Keith Drazek WHEREAS, 1. Per its Charter, the Project Cost Support Team (PCST) has supported the CCWG-Accountability in developing a draft budget and cost-control processes for the CCWG-Accountability activities for FY17, and has also developed a historical analysis of all the transition costs to date (see https://gnso.icann.org/mailing-lists/archives/council/pdfpklU5q6Ojg.pdf) 2. The CCWG-Accountability FY17 budget was presented at its plenary meeting of June 21st and approved for transmission to the Chartering Organizations for validation as per the process agreed with the PCST. This request for validation was received on 23 June. 3. Following review and discussion during ICANN56, the GNSO Council requested a webinar on this topic which was held on 23 August (see transcript at https://gnso.icann.org/en/meetings/transcript-ccwg-accountab ility-webinar-23aug16-en.pdf, recording at http://audio.icann.org/gnso/gn so-ccwg-accountability-webinar-23aug16-en.mp3 and AC recording at https://icann.adobeconnect.com/p8fu99qpt7d/) 4. The GNSO Council notes that many members of the GNSO community have expressed the view that the projected budget does not likely support revisiting the topic of the jurisdiction of ICANN’s organization in that such exploration would likely require substantial independent legal advice on alternative jurisdictions and their potential impact on the text and structure of ICANN’s Bylaws. 5. The GNSO Council has discussed and reviewed all the relevant materials. RESOLVED, 1. The GNSO Council hereby accepts the proposed CCWG-Accountability FY17 budget, as well as the cost-control processes presented in conjunction with the CCWG budget, expects the working groups to be restrained and judicious in their use of outside legal assistance, and believes that the Legal Committee should exercise reasonable and effective controls in evaluating requests for outside legal assistance and should approve them only when deemed essential to assist a working group to fully and objectively understand and develop a particular course of action for which the group has reached a substantial degree of consensus and requires legal advice on its risks and feasibility. 2. The GNSO Council expects to receive regular updates on actual expenditures as tracked against this adopted budget, and reserves the right to provide further input on the budget allocation in relation to the CCWG-Accountability related activities. 3. The GNSO Council expects ICANN staff, including its office of General Counsel, to provide the assistance requested by the CCWG and its working groups in an expeditious, comprehensive, and unbiased manner. 4. The GNSO Council expects the CCWG-Accountability and staff to work within the constraints of this approved budget, and that excess costs or requests for additional funding beyond said budget should be recommended by the Legal Committee only when deemed essential to completion of the CCWG’s work and objectives. . 5. It is the position of the GNSO Council that revisiting the jurisdiction or organization of the ICANN legal entity, as established by CCWG-Accountability Work Stream 1, would not likely be supported by this projected budget and, further, that such inquiry should not be undertaken at this time because the new accountability measures are all premised and dependent on California jurisdiction for their effective operation, and any near-term changes in organizational jurisdiction could be extremely destabilizing for ICANN and its community. 6. The GNSO Council requests the GNSO Secretariat to communicate this resolution to the CCWG-Accountability Chairs, and to the office of the ICANN CFO. *Marika Konings* Senior Policy Director & Team Leader for the GNSO, Internet Corporation for Assigned Names and Numbers (ICANN) Email: marika.konings(a)icann.org <javascript:_e(%7B%7D,'cvml','marika.konings(a)icann.org');> *Follow the GNSO via Twitter @ICANN_GNSO* *Find out more about the GNSO by taking our interactive courses <http://learn.icann.org/courses/gnso> and visiting the GNSO Newcomer pages <http://gnso.icann.org/sites/gnso.icann.org/files/gnso/presentations/policy-…>.*

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