November 2016 - Ws2-jurisdiction

Jurisdiction mandate
by avri doria Dec. 1, 2016

Dec. 1, 2016

Hi, Much has been said about our mandate. I went and grabbed the appropriate text from the ByLaws and the Proposal. --- /Bylaws/ 277.1.b (vi) Addressing jurisdiction-related questions, including how choice of jurisdiction and applicable laws for dispute settlement impact ICANN's accountability; /from Report/ Jurisdiction 26 Jurisdiction directly influences the way ICANN’s accountability processes are structured and operationalized. The fact that ICANN is incorporated under the laws of the U.S. State of California grants the corporation certain rights and implies the existence of certain accountability mechanisms. It also imposes some limits with respect to the accountability mechanisms it can adopt. 27 The topic of jurisdiction is, as a consequence, very relevant for the CCWG-Accountability. ICANN is a nonprofit public benefit corporation incorporated in California and subject to applicable California state laws, applicable U.S. federal laws and both state and federal court jurisdiction. ICANN is subject to a provision in paragraph eight(1) of the Affirmation of Commitments, signed in 2009 between ICANN and the U.S. Government. 28 ICANN’s Bylaws (Article XVIII) also state that its principal offices shall be in California. 29 The CCWG-Accountability has acknowledged that jurisdiction is a multi-layered issue and has identified the following "layers”: * Place and jurisdiction of incorporation and operations, including governance of internal affairs, tax system, human resources, etc. * Jurisdiction of places of physical presence. * Governing law for contracts with registrars and registries and the ability to sue and be sued in a specific jurisdiction about contractual relationships. * Ability to sue and be sued in a specific jurisdiction for action or inaction of staff and for redress and review of Board action or inaction, including as relates to IRP outcomes and other accountability and transparency issues, including the Affirmation of Commitments. * Relationships with the national jurisdictions for particular domestic issues (ccTLDs managers, protected names either for international institutions or country and other geographic names, national security, etc.), privacy, freedom of expression. * Meeting NTIA requirements. 30 At this point in the CCWG-Accountability’s work, the main issues that need to be investigated within Work Stream 2 relate to the influence that ICANN´s existing jurisdiction may have on the actual operation of policies and accountability mechanisms. This refers primarily to the process for the settlement of disputes within ICANN, involving the choice of jurisdiction and of the applicable laws, but not necessarily the location where ICANN is incorporated: * Consideration of jurisdiction in Work Stream 2 will focus on the settlement of dispute jurisdiction issues and include: o Confirming and assessing the gap analysis, clarifying all concerns regarding the multi-layer jurisdiction issue. o Identifying potential alternatives and benchmarking their ability to match all CCWG-Accountability requirements using the current framework. o Consider potential Work Stream 2 recommendations based on the conclusions of this analysis. 31 A specific Subgroup of the CCWG-Accountability will be formed to undertake this work. (1) 8. ICANN affirms its commitments to: (a) maintain the capacity and ability to coordinate the Internet DNS at the overall level and to work for the maintenance of a single, interoperable Internet; (b) remain a not for profit corporation, headquartered in the United States of America with offices around the world to meet the needs of a global community; and (c) to operate as a multi stakeholder, private sector led organization with input from the public, for whose benefit ICANN shall in all events act. rec 12 line 234 Addressing jurisdiction-related questions, namely: “Can ICANN’s accountability be enhanced depending on the laws applicable to its actions?” The CCWG-Accountability anticipates focusing on the question of applicable law for contracts and dispute settlements. --- Language that speaks of choice, applicable laws, and enhancement hardly seems to rest on only understanding the past, a past that was experienced when the current condition of transition had not been achieved. They also do not seem to limit our questions and discussion to the status quo. Even when speaking of 'existing jurisdiction' it speaks of effects that it "may have". Not that it has been shown to have in the past. It speaks of "clarifying all concerns" and ïdentifying alternatives". >From my re-reading, neither a narrow based questionnaire nor a narrow approach seem consistent with our mandate or the job we need to get done. avri --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus

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first draft of fact solicitation questions
by Mueller, Milton L Dec. 1, 2016

Dec. 1, 2016

CW and I have agreed on the following draft: Request for stakeholder input on jurisdiction issues The Jurisdiction subgroup of the CCWG Accountability is asking for the community to provide factual input on the following questions: 1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction in any way? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. 2. Has ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names you have been involved in? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology

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Notes, recordings and transcript for WS2 Jurisdiction Subgroup Meeting # 11 | 29 November
by MSSI Secretariat Nov. 29, 2016

Nov. 29, 2016

Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #11 – 29 November 2016 will be available here: https://community.icann.org/x/vJDDAw 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): 1. Welcome Greg Shatan:changes to SOIs (none). 2. Discussion of reformulated “experience” questions Greg Shatan: recap of objective of questions. I have reformulated based on the original draft. Farzaneh Badii: Can the rapporteur or group vet the veracity? Kavouss Arasteh: what is the form of submission? Greg Shatan: we have not decided if submissions can be anonymous. We also have not decided on the mechanics for submitted responses. Per KA we could use Effect vs Affect. David McAuley (RySG): hand down, I agree w/Greg and I personally think it is unwise to ask for replies that are second-hand Jorge Cancio (GAC Switzerland): As I said last time, some people with adverse experiences may be reluctant to share them if a certain degree of anonymity is not granted Parminder: (bad audio - unworkable). Jean-Jacques Subrenat: Indirect effects of Jurisdiction - when serving on the Board of ICANN I had to fill out a form for US tax purposes as a Vendor! this is not suitable for volunteers outside of US. Second point - Board accepted creating additional jurisdictions - I had suggested Geneva. Greg Shatan: JJS any comments on questions? Jean-Jacques Subrenat: @Greg: I'll see if I can suggest a few lines. Parminder: I will like the chairs to clarify what is their view about other question proposed by some members. We need to include things beyond experiences. Jurisdiction impacts reach people who are beyond the usual ICANN community and these views should be captured. Greg Shatan: In our previous meeting, we agreed that we needed actual experiences of being affected by jurisdiction - which resulted in the questions we received. Now do we want to turn this questionnaire to cover a wider field as some have suggested and also go beyond facts. Parminder: and we have to decide what we do Kavouss Arasteh: The two persons drafting team bluntly rejected the consideration of any questions coming outside that little group Avri Doria: Greg, there are more kinds of facts than you are recognizing. Farzaneh Badii: I think we can work with these questions. we just have to reach out to the affected community, which I have done in the past. Parminder: but we are still at the stage at deciding what we want Jean-Jacques Subrenat: @Greg, I suggest adding something like this: "ICANN's jurisdiction also carries other effects, not directly on the performance of the DNS. 1) All forms used by ICANN, including financial and fiscal, take into account only the US situation. Thus, when ICANN reimburses travel or accommodation costs to its volunteers (such as Member of the Board, or of ALAC), the latter are defined as "vendors", which is inappropriate, considering the free work provided by them to a US corporation. 2) One of the recommendations of ICANN's "Improving Institutional Confidence" (2009) was to set up an "additional jurisdiction" (not a replacement for) the US jurisdiction of ICANN. Specifically, we suggested setting up an additional jurisdiction in Geneva, in order to facilitate ICANN's international work, e.g. in recruiting employees or signing contracts for studies, polls, etc. Pedro da Silva: These questions do not take on the suggestions by Parminder. It would be valuable to understand perceived risks and threats if they are well founded. David McAuley: Support GS in his views. Agree with Parminder that this will not make it to a wider community - regardless what we do. Let us remember our mandate and would not support asking for perceived risks - or at least if it is asked limit it to disputes. Farzaneh Badii: I have researched about the communities that are affected by ICANN jurisdiction in one way or another Kavouss. I think I quite clearly said that above. Jorge Cancio (GAC Switzerland): Farzaneh: could you share any doc on your research? Jeff Neuman 2: I strongly believe that we should only be looking at impacts of ICANN's jurisdiction on the DNS and/or participation in the multistakeholder model. Other impacts seem to me to be out of scope Farzaneh Badii: Kavouss, I also think you represent the Iraninan gov at ICANN. You might want to reach out to those who might be affected by ICANN jurisdiction due to sanctions too. Kavouss Arasteh: I am a GAC representative Farzaneh Badii: yes Jorge, I will provide that for the group. either in a blogpost or in a list Kavouss Arasteh:could make question 1 more general? Verifiable is subjective. Do not agree with DM. Farzaneh Badii: yes but you are representing Iran on GAC. you might be able to see what the Iranian community is going through with regards to DNS related issues and jurisdictional issues. Parminder: i find people say affrct only on DNS industry needs to be found. am i correct? Greg Shatan: re Verifiable - direct experience could be taken at face value - however indirect references should be verified. Parminder: i disagree. Effect on everyone, all public, is included. David McAuley (RySG): As to the meaning of "verifiability" I think the responder will factor that in and so it seems a good term to me Avri Doria: please count me among those who support a broader questionnaire Parminder: even if we use the term 'dispute' - disputes can be brought under public law on public interest questions. and they are included. Avri Doria: support wider questionnaire. We could have two parts to the questionnaire. We should not be defeatist - it may be responded by more people than we think. There have been many papers published on this subject which could be relevant. Pedro da Silva - [GAC Brasil]: +1 Avri Kavouss Arasteh: Avri+1 Parminder: ican now the basis of our differences on how the questionnaire should - some people think we are looking only on the impact on the DNS industry which can be reached and speak up directly, on their own. Other people think the wider public impact is as or perhaps more important. Mary Uduma: +1 Avri Kavouss Arasteh: Parminder +1 Parminder: Such impacts are found in different ways than impact on DNS industry can be found, for which the current questionnaire may be useful - though it still is limited for even that purpose Greg Shatan: more legal questions should be submitted to lawyers for professional input. Avri Doria: its not just about legal views - we need to have a look at the broader picture - having lawyers do this work could not be a good investment. Also, we never make decisions on only one meeting usually. Kavouss Arasteh: Once again questions must be sufficiently broad Jean-Jacques Subrenat: @Greg and Staff: link to "Improving Institutional Confidence" 2008, https://archive.icann.org/en/jpa/iic/improving-confidence.htm Kavouss Arasteh: Could staff provide a link to that material on mailing list David McAuley (RySG): I think Avri makes a fair point about two meetings Greg Shatan: AD good points. We can continue to discuss the questionnaire. Could we consider two questionnaires which would allow us to get this fact based one out sooner? We also need a reading list? Parminder: We cannot issue multiple questionnaires. Avri Doria: the questionnaire would help build that list. we could ask people for references. Jean-Jacques Subrenat: @Greg and Staff: and more specifically, see chapter 3 and its item 3.5, 3.6 and 3.7 as follows: "3.5. During its consultations (not only recently but over the last two years), the PSC has received input from global stakeholders external to the United States that ICANN should also be represented in other jurisdictions. The PSC believes that that it would assist increase the credibility of ICANN’s claim to be an entity serving a global community for ICANN to have representation in other countries additional to that which it will always possess in the United States.3.6. The PSC emphasizes that an additional legal presence will strengthen ICANN's fundamental multi-stakeholder model and underline the element of public trust that is a key element of its mission. The PSC believes that such a presence is not about reducing accountability. Indeed it will provide for more acceptance and confidence in ICANN as it will have a legal personality that is additional to its US presence. (...)" Kavouss Arasteh: can we advance on questions given the time remaining. David McAuley (RySG): I think we should stick to the remit found in Annex 12 Greg Shatan: Agree with DM. Vinay Kesari: Hi Greg, all - I unfortunately have to step away a few mins early. If I could just ask everyone to also devote some thought to how we're getting this questionnaire out, who it will be sent out to, etc. (once of course the questions are settled), we could perhaps come to that separately on list or on the next call. David McAuley (RySG): I remain "con" on questions asking for answers going beyond direct experience, with respect Avri Doria: i remain pro, also with respect. Greg Shatan: temperature check - who wants to add an additional question to this (and would need to define the question). No clear result. Parminder: I am still unable to hear or understand what is the danger of that additional question Kavouss Arasteh: Pls kindly look at my suggestion to amend Q1 and Q 2 Jeff Neuman 2: I like impact on the DNS and/or their participation in the ICANN multistakeholder community Parminder: yes, id work with avri and others who supported Parminder: you want it done now? Avri Doria: you confused it. Kavouss Arasteh: Jeff , I tend to agree with you , to some extent Avri Doria: check for narrow, cross for borader. Jean-Jacques Subrenat: @Greg: like Avri, I favour a wider or additional question. Kavouss Arasteh: Jean- Jaques+1 Parminder: lets do it in the next two days and close it on the elist Avri Doria: cross is red, check is green Cheryl Langdon-Orr (CLO): broader Jorge Cancio (GAC Switzerland): I have very bad connection, but please note my support for Avri's points Kavouss Arasteh: Made some progress - we have to develop the questions more. Rafael Perez Galindo (GAC Spain): +1 Avri Parminder: we cannot issue two questionnaires in quick succession ... that is even logistically not wise, apart from logically not ok David McAuley (RySG): Agree w/Parminder - two questionnaires is not good Greg Shatan: Let us work on the list on defining that additional question Pedro da Silva - [GAC Brasil]: There is significant support for an additional question. Let's please have a small group elaborate this additional question in the next 1-2 days. Parminder: i can cut paste from the list -- but it will be impossible to close it Parminder: there have been suggestions on an proposed text, we should go by that, without an entirely fresh text Kavouss Arasteh: Pedro, in principle, I agree to either broader the existing questions or draft additional questions$ Parminder: I mean additional question of course Avri Doria: ok Greg Shatan: (lost connexion) Bernard Turcotte: We are at the top of the hour - as proposed by GS we will pursue the questionnaire discussion on list. Meeting Adjourned. Documents Presented · Experience Questions.pdf<https://community.icann.org/download/attachments/63148220/Experience%20Ques…> · InfluenceofExistingJurisdictions (1).pdf<https://community.icann.org/download/attachments/63148220/InfluenceofExisti…> · MultipleLayersofJurisdiction.pdf<https://community.icann.org/download/attachments/63148220/MultipleLayersofJ…>

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Jurisdiction Subgroup: Agenda for Meeting #11 at 13:00 UTC today
by Vinay Kesari Nov. 29, 2016

Nov. 29, 2016

Dear all, Please find attached the agenda for today's subgroup meeting at 13:00 UTC. Below are links to the two documents we have been working on, for ease of reference. 1. "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?" - https://docs.google.com/document/d/1_uxN8A5J3iaofnGlr5gYoFVKudgg_ DuwDgIuyICPzbk/edit?usp=sharing 2. "Multiple Layers of Jurisdiction" document: https://docs.google.com/ document/d/1oE9xDIAJhr4Nx7vNO_mWotSXuUtTgJMRs6U92yTgOH4/edit?usp=sharing I'm also taking the liberty of pasting below the reformulated “experience” questions referenced in the agenda, which Greg had sent via email about 8 hours ago. Regards, Vinay & Greg ---------------- *1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction* in any way?* *If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “effects” may be positive or negative.* *2. Has ICANN's jurisdiction* affected any dispute resolution process or litigation related to domain names you have been involved in?* *If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “effects” may be positive or negative.* *3. Do you have copies of and/or links to any reports of experiences of other parties that would be responsive to the questions above?* *If the answer is yes, please provide these copies and/or links.* *_____________________________* ** For these questions, “ICANN’s jurisdiction” refers to (a) ICANN being subject to U.S. and California law as a result of its incorporation and location in California, (b) ICANN being subject to the laws of any other country as a result of its location or contacts with that country, or (c) any “choice of law” or venue provisions in agreements with ICANN. *

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Re: [Ws2-jurisdiction] first draft of fact solicitation questions
by Perez Galindo, Rafael Nov. 28, 2016

Nov. 28, 2016

+1 To Mike Rodenbaugh If we really want to gather all relevant information and have the broadest possible input to maximize the quality of our discussions and of course of our output, we should not constraint our sources of possible knowledge. My point is that to run the risk of having too much information is always preferable to the risk of having too little and miss out on important issues and experiences that could very well feed our discussions. That is why we should broaden the request, even if we have to separate the questions or organize it in a way that satisfies concerns expressed by some. Rafael ________________________________ De: Mike Rodenbaugh <mike(a)rodenbaugh.com> Fecha: 23. November 2016 um 20:31:08 MEZ De: Paul Rosenzweig <paul.rosenzweig(a)redbranchconsulting.com> Cc: ws2-jurisdiction(a)icann.org <ws2-jurisdiction(a)icann.org> Asunto: Re: [Ws2-jurisdiction] first draft of fact solicitation questions I think we want the broadest range of experiences, but of course would not consider hearsay. If anyone can point us to documents about anyone else's experiences, then what is the harm in considering those documents? To me, the worse risk is that we don't hear about them at all because the person who had the experience does not see our survey. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.com On Wed, Nov 23, 2016 at 11:27 AM, Paul Rosenzweig <paul.rosenzweig(a)redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote: +1 Everyone has opinions and second hand information. We want primary sources on t his ... P Paul Rosenzweig paul.rosenzweig(a)redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660<tel:%2B1%20%28202%29%20547-0660> M: +1 (202) 329-9650<tel:%2B1%20%28202%29%20329-9650> VOIP: +1 (202) 738-1739<tel:%2B1%20%28202%29%20738-1739> www.redbranchconsulting.com<http://www.redbranchconsulting.com/<http://www.redbranchconsulting.com<http://www.redbranchconsulting.com/>> My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ From: ws2-jurisdiction-bounces(a)icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>] On Behalf Of Greg Shatan Sent: Wednesday, November 23, 2016 2:06 PM To: CW Mail <mail(a)christopherwilkinson.eu<mailto:mail@christopherwilkinson.eu>> Cc: ws2-jurisdiction(a)icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] first draft of fact solicitation questions I agree with CW on this one -- we are looking for first person facts, experiences and "anecdotal evidence." The facts are best known by the participants, and third parties (viewing events from the outside) often make assumptions about what happened or otherwise get things wrong. Greg On Wed, Nov 23, 2016 at 1:04 PM, CW Mail <mail(a)christopherwilkinson.eu<mailto:mail@christopherwilkinson.eu>> wrote: Mike: I might see the point of broadening, if possible, the scope and catchment of the questions, but perhaps not in that way. We should be dealing with Principals (in the sense of directly with those responsible for the entities concerned). Not their surrogates or other third parties. Otherwise we risk receiving second hand information with which the Principals may not agree, and inviting 'bulk' replies from interested organisations. We should also be cautious about receiving anonymous hearsay. Just a thought CW On 23 Nov 2016, at 17:20, Mike Rodenbaugh <mike(a)rodenbaugh.com<mailto:mike@rodenbaugh.com>> wrote: These seem well-stated, except perhaps they should not be looking only for personal experience, but broaden the request to seek any experience the responder is aware of? So I suggest something like: 1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by ICANN's jurisdiction in any way? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. 2. Are you aware of any instance in which ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087<tel:%2B1.415.738.8087> http://rodenbaugh.com<http://rodenbaugh.com/> On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L <milton(a)gatech.edu<mailto:milton@gatech.edu>> wrote: CW and I have agreed on the following draft: Request for stakeholder input on jurisdiction issues The Jurisdiction subgroup of the CCWG Accountability is asking for the community to provide factual input on the following questions: 1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction in any way? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. 2. Has ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names you have been involved in? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction(a)icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction(a)icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction(a)icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction(a)icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction(a)icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

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Multiple Layers of Jurisdiction Document
by Greg Shatan Nov. 23, 2016

Nov. 23, 2016

Here is the current state of this document.

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Notes, recordings and transcript for WS2 Jurisdiction Subgroup Meeting # 10 | 21 November
by MSSI Secretariat Nov. 23, 2016

Nov. 23, 2016

Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #10 – 21 November 2016 will be available here: https://community.icann.org/x/pJDDAw A copy of the action items and notes may be found below. Thank you. With kind regards, Brenda Brewer MSSI Projects & Operations Assistant ICANN - Internet Corporation for Assigned Names and Numbers Action items: * Milton and CW to draft a few questions for review by the group. * Everyone to go to our 2 Documents. Notes (including relevant parts of chat): 1. Welcome Back - Vinay Kesari 2.Setting the Scene - Vinay Kesari Kavouss Arasteh: I am not optimistic of the results we can achieve here - did not understand the introduction. We are widening the subject instead of focusing. Vinay Kesari: Agree with KA - we need to focus on our core task without removing any possible outcomes. Greg Shatan: Agree. We do not need to identify solutions to problems that have not been identified. Note: discussions surrounding Jorge Cancio’s suggestion of a consultation/questionnaire generated most of the traffic in the chat and this should be read in conjunction with these notes. 3.Work Plan Greg Shatan: will have to redo after this meeting. It seems early for a public consultation. Vidushi Marda: I am new to the group - where are we vs jurisdiction of incorporation. Greg Shatan: best to catch up reading transcripts and the email lists. Jurisdiction of incorporation is not off the table but we have agreed to only consider it if it comes up as the only solution to a given issue. Jorge Cancio: I was proposing a fact finding exercise especially those who have contracts or those who could be considered materially harmed. Greg Shatan: We need more factual information from concerned parties. We need to get a small group working on the list to begin designing this. David McAuley: This should be about getting facts and not opinions. Tijani Ben Jemaa: what are the points we have difficulty to get to consensus on. Greg Shatan: I see it differently - this is about getting factual information from users. Kavouss Arasteh: I have no idea what is a stress test and was not very useful in WS1. What surveys, about what, why? Few people would reply to what I understand what we are talking about - this is not what we have said we would work on. We need to focus on applicability of jurisdiction of contracts. Greg Shatan: We are not looking for legal opinions or theories. What we are discussing is getting real facts from contracted parties - things that have happened. It is in our mandate to get facts. Kavouss Arasteh: you are focusing on the past - under the new rules there may be new issues. Greg Shatan: KA this is certainly not the objective - but we could really use facts from the past. Vinay Kesari: Agree with GS. We only know information that is public. The questions would allow us to possibly identify facts that are not currently in the public domain. Greg Shatan: temperature check on doing the questionnaire - general support for it. Could we have volunteers to prepare the questions in the chat. We would need a draft for Monday - CW, MM - this is our drafting group which will return the questions to this group with their draft. 4.Document and Discussion: “The Influence of ICANN’s Existing Jurisdictions (Governing Law and Venue) Relating to Resolution of Disputes” Greg Shatan: we need to get back to working on these documents. especially focused on Disputes involving ICANN 5.Document and Discussion: “Multiple Layers of Jurisdiction” Greg Shatan: needs further review and comments from all participants. 6.Suggestion: Reading List Greg Shatan: We should set up a reading list on our Wiki. Kavouss Arasteh: What do we mean by influence? Andrea Brambilla: (govt of Canada) supports the request for a questionnaire. All the work of WS1 is based on current ICANN jurisdiction and this should not be disturbed - it is more important to reinforce accountability. 7.Possible Use of Experts Greg Shatan: refers to the use of legal. If we have questions we need to submit these to the legal comm. but we are not there yet. 8.AOB Greg Shatan: Any other business? (none). 9. Adjourn Greg Shatan: Adjourned.

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Fwd: ¿Mutual Accountability Round Table?
by CW Mail Nov. 22, 2016

Nov. 22, 2016

Begin forwarded message: > From: CW Mail <mail(a)christopherwilkinson.eu> > Subject: ¿Mutual Accountability Round Table? > Date: 21 Nov 2016 19:14:08 GMT+01:00 > To: MSSI Secretariat <mssi-secretariat(a)icann.org>, "ccwg-accountability5(a)icann.org" <ccwg-accountability5(a)icann.org> > > >> << The idea of mutual accountability is that multiple actors are accountable to each other. How might this work in ICANN? It would be necessary to carve out a space within the various forms of accountability undertaken within ICANN that are of the principal-agent variety. So where the new Community Powers construct the community as a principal who calls the Board as agent to account, a line of mutual accountability would enable all ICANN structures to call one another to account. So one could imagine a Mutual Accountability Roundtable that meets at each ICANN meeting, perhaps replacing the current Public Forum. The form would be a roundtable of the Board, CEO, and all Supporting Organizations and Advisory Committees, represented by their chairpersons. The roundtable would designate a chairperson for the roundtable from year to year who would be responsible for facilitating each Mutual Accountability Roundtable. Each Roundtable may pick one or two key topics to examine. Each participant could give an account of how his or her constituency addressed the issue, indicating what worked and didn’t work. This could be followed by a discussion on how to improve matters of performance. The purpose would be to create a space for mutual accountability as well as a learning space for improvement.>> > > > Good evening: > > Allow me to express a certain hesitation, if not reservation, about the concept described above. Without being pedantic, we need to reflect upon the meaning of words. > > 1. The original Round Table had the benefit of a famous King. Whereas we do not need Kings or Queens; even a one-year Chair would be quite an Ask. Especially the first year. > On the other hand we have been working very well recently with panels of Co-Chairs, and I do not see why that should not continue in this context. > > 2. SO/AC accountability is, rightly, mainly about the accountability of each entity to its membership, broadly defined. In my view, in practice that is usually going to be about how representatives are appointed and how policy positions (not necessarily 'decisions') are reached. > > To extend that concept to mutual accountability of the SOs & ACs "to each other", is perhaps a step too far: (a) it is not clear how that might be implemented and (b) it would appear to introduce an element of conflict of interest - however mild - between SO/AC representatives' accountability to her/his membership and their accountability "to each other". > > 3. I think that the principal issue is not mutual SO/AC accountability, but rather mutual transparency. Thus for example, should I be representing an SO/AC (which I am not), I should be quite confident of my own accountability to my membership. What I would really need to know is the nature of my counterparts', among the other SO/ACs, accountability to their membership. And I would be uncomfortable should I feel that SO/AC representatives' accountability "to each other" was undermining their accountability to their memberships. Because that would increase the risks of capture. Naturally, should I request transparency from my counterparts, they would expect reciprocity. Thus, 'Mutual Transparency'. > > I trust that Willie Currie, among other colleagues do not feel that I am splitting hairs. > > Regards > > CW > > >

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Re: [Ws2-jurisdiction] Notes, recordings and transcript for WS2 Jurisdiction Subgroup Meeting # 10 | 21 November
by wafa DAHMANI Nov. 22, 2016

Nov. 22, 2016

Thank you will go through and my appologies for not attending yesterday From: "MSSI Secretariat" <mssi-secretariat(a)icann.org> To: "CCWG Accountability" <accountability-cross-community(a)icann.org> Cc: ws2-jurisdiction(a)icann.org Sent: Monday, 21 November, 2016 23:01:25 Subject: [Ws2-jurisdiction] Notes, recordings and transcript for WS2 Jurisdiction Subgroup Meeting # 10 | 21 November Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #10 – 21 November 2016 will be available here: https://community.icann.org/x/pJDDAw A copy of the action items and notes may be found below. Thank you. With kind regards, Brenda Brewer MSSI Projects & Operations Assistant ICANN - Internet Corporation for Assigned Names and Numbers Action items: * Milton and CW to draft a few questions for review by the group. * Everyone to go to our 2 Documents. Notes (including relevant parts of chat): 1. Welcome Back - Vinay Kesari 2.Setting the Scene - Vinay Kesari Kavouss Arasteh: I am not optimistic of the results we can achieve here - did not understand the introduction. We are widening the subject instead of focusing. Vinay Kesari: Agree with KA - we need to focus on our core task without removing any possible outcomes. Greg Shatan: Agree. We do not need to identify solutions to problems that have not been identified. Note: discussions surrounding Jorge Cancio’s suggestion of a consultation/questionnaire generated most of the traffic in the chat and this should be read in conjunction with these notes. 3.Work Plan Greg Shatan: will have to redo after this meeting. It seems early for a public consultation. Vidushi Marda: I am new to the group - where are we vs jurisdiction of incorporation. Greg Shatan: best to catch up reading transcripts and the email lists. Jurisdiction of incorporation is not off the table but we have agreed to only consider it if it comes up as the only solution to a given issue. Jorge Cancio: I was proposing a fact finding exercise especially those who have contracts or those who could be considered materially harmed. Greg Shatan: We need more factual information from concerned parties. We need to get a small group working on the list to begin designing this. David McAuley: This should be about getting facts and not opinions. Tijani Ben Jemaa: what are the points we have difficulty to get to consensus on. Greg Shatan: I see it differently - this is about getting factual information from users. Kavouss Arasteh: I have no idea what is a stress test and was not very useful in WS1. What surveys, about what, why? Few people would reply to what I understand what we are talking about - this is not what we have said we would work on. We need to focus on applicability of jurisdiction of contracts. Greg Shatan: We are not looking for legal opinions or theories. What we are discussing is getting real facts from contracted parties - things that have happened. It is in our mandate to get facts. Kavouss Arasteh: you are focusing on the past - under the new rules there may be new issues. Greg Shatan: KA this is certainly not the objective - but we could really use facts from the past. Vinay Kesari: Agree with GS. We only know information that is public. The questions would allow us to possibly identify facts that are not currently in the public domain. Greg Shatan: temperature check on doing the questionnaire - general support for it. Could we have volunteers to prepare the questions in the chat. We would need a draft for Monday - CW, MM - this is our drafting group which will return the questions to this group with their draft. 4.Document and Discussion: “The Influence of ICANN’s Existing Jurisdictions (Governing Law and Venue) Relating to Resolution of Disputes” Greg Shatan: we need to get back to working on these documents. especially focused on Disputes involving ICANN 5.Document and Discussion: “Multiple Layers of Jurisdiction” Greg Shatan: needs further review and comments from all participants. 6.Suggestion: Reading List Greg Shatan: We should set up a reading list on our Wiki. Kavouss Arasteh: What do we mean by influence? Andrea Brambilla: (govt of Canada) supports the request for a questionnaire. All the work of WS1 is based on current ICANN jurisdiction and this should not be disturbed - it is more important to reinforce accountability. 7.Possible Use of Experts Greg Shatan: refers to the use of legal. If we have questions we need to submit these to the legal comm. but we are not there yet. 8.AOB Greg Shatan: Any other business? (none). 9. Adjourn Greg Shatan: Adjourned. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction(a)icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

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Copies of "Influence of Existing Jurisdictions" document
by Greg Shatan Nov. 21, 2016

Nov. 21, 2016

Here are copies of the Google Doc as it currently stands.

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