September 2016 - Ws2-jurisdiction

The Gap Analysis: Question, Method and Objective -- Proposal for Comment
by Greg Shatan Oct. 1, 2016

Oct. 1, 2016

All, Based on the call today, I'm presenting the following as the proposed path forward on the Gap Analysis: 1. *The Question*. Whether each of the accountability measures proposed in Work Stream 1 can be implemented under ICANN's current jurisdictional framework without any gaps. (Implementation "without any gaps" means the ability to apply an accountability measure to, and ultimately enforce that measure against, ICANN.) 2. *The Objective*. The first objective is to determine whether there are any "gaps," i.e., whether any of the WS1 accountability measures cannot be fully implemented under ICANN's current jurisdictional framework. After possible gaps are identified, the subgroup will examine each possible gap to determine if it is in fact a gap. A list of identified gaps will be prepared. (After the gap analysis is completed, the subgroup will then explore possible ways to "close the gap" for each applicable accountability measure, i.e., to implement the measure effectively.) 3. *The Method*. The Final Proposal of WS1 will be posted as a Google Doc. Subgroup members are asked to assign themselves one chapter of the Proposal to review for "gaps." Notes on potential "gaps" can be made directly on the Google Doc proposal as comments. A separate sign-up sheet will be posted, also as a Google Doc. Subgroup members that cannot access Google Drive can put their chosen "assignments" into an email, and can also provide their analysis via email as well. Subgroup rapporteurs and staff will make the necessary notations. Comments are requested and appreciated. However, in order to keep up the momentum, the Final Proposal and sign-up sheet will be posted on Tuesday, September 27. Our question, objective and method can be further refined even as we move forward. I look forward to your comments and to seeing the assignments and analyses in the coming days and weeks. Best regards, Greg

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Notes, recordings, transcript for WS2 Jurisdiction Subgroup Meeting #5 - 26 September 2016
by MSSI Secretariat Sept. 27, 2016

Sept. 27, 2016

Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #5 – 26 September 2016 will be available here: https://community.icann.org/x/rAO4Aw 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 excerpts from the chat): 1. Welcome · Greg Shatan: no audio only. Any changtes to SOIs? (none). (over 25 participants at start of call). 2. Continued Discussion of Gap Analysis: Annex 12 includes “confirming and assessing the gap analysis.” a. Confirming the scope of the “Gap Analysis” b. Method(s) of assessing/performing the Gap Analysis? · Greg Shatan: Given the list discussion this seemed a logical choice as the first topic for the discussion today. Good points brought up by DM. · David McAuley: Based on my experience on WS1 it was my impression that rec. 12 was asking us to consider the gap analysis provided in WS1 and therefore not necessary to do another one. · Pedro da Silva: My conclusion is the opposite of the one by DM. There was an effort at the Istanbul meeting to start a gap analysis. What we had was an intense discussion and not a proper gap analysis. Based on this I conclude we have not completed a gap analysis and need to do so in WS2. · Greg Shatan: Unfortunately, Milton Mueller is not here but will read his email - supports the notion that we need to do a formal gap analysis. Other valid input from Philip Corwin. · Philip Corwin: If we do a gap analysis we cannot do it for specific issues (Chinese menu) we have to look at countries for all the aspects. Counsel at the end of WS1 confirmed that California law met the requirements - which is essentially a gap analysis. Now even if it would be recommended that ICANN be incorporated in another jurisdiction how would it then interact with the Empowered Community and PTI. · Paul McGrady: 2 questions - Why would we jump to finding a new home for ICANN because there is a gap in a subset - would we not first look at filling the gap under the current jurisdiction. Secondly if we do decide to move - How would we proceed to select another country? Would we look at all countries? How long would this take and how much would this cost. · Greg Shatan: Gap analysis is in two parts. The first is are there shortfalls in the current implementation of the recommendations - if not why would we look at another jurisdiction? If there is a gap it would seem logical to seek a simple solution which would not require moving incorporation. So we should do a gap analysis to confirm if there are gaps (but this does not need to be a work for the ages given our timeframe). · Pedro da Silva: One of the tools for helping us to decide if we need to consider re-incorporation should be the gap analysis. · David McAuley: I understand what PDS is saying but it would be good to know what we need to check for Jurisdiction is important. · Greg Shatan: Unless there is a critical that cannot be solved in California then the incorporation discussion should be ended. · Avri Doria: Some feel the gap analysis has not been properly done. Once this is done we would look at these gaps, if any, to see what solutions could be applicable - but moving incorporation would be a very last resort. But to be clear gap, for me, does not automatically imply moving jurisdiction. · Greg Shatan: Agree with AD. · Paul McGrady 2: I agree with Avri - gaps do not automatically= moving out of California. · Cheryl Langdon-Orr (CLO): Agree Avri · Greg Shatan: Uless there are other comments we should look at doing some form of an analysis without re-inventing the wheel or incurring significant legal costs should be done? We need, as a group, to initially identify any potential gaps and if these are confirmed then we can consider if these need to go to the lawyers. Would prefer assignment model - where people tell us what they will look at. · David McAuley (RySG): we should formulate an agreed base question as well - that we will be uniformly following as we review the report. · Greg Shatan: Support DM suggestion. We need a limited time to get this done - 2 weeks? No objections. Action Item: We will review the results at our October 10th meeting. · Pedro da Silva: So you are proposing that we divide amongst ourselves WS1 recommendations to look for gaps - if this is the case we should make a clear separation between requirements and implementation. For the EC this should be doable - we should have a table with the powers of the EC in one column listing the power and then another column listing the mechanisms for implementation. · Greg Shatan: why look alternatives if there is no gap. · Pedro da Silva: as pointed out by PC the EC is not membership. · David McAuley: Agree with GS that we should not look for new jurisdiction until there is a real gap that cannot be resolved otherwise. Should the rapporteurs should get a clear crisp mandate which has been checked by the co-chairs. · Greg Shatan: DM good suggestion. Action Item we should aim to have a completed gap analysis to present in Hyderabad. · Paul McGrady 2: Not just before we identify gaps, but before we identify gaps that can't be fixed by new mechanisms while staying put... · Paul McGrady 2: while staying put... · Philip Corwin: Didn't our expert and not inexpensive outside legal experts provide us with reasonable assurance that all the accountability powers of the designator model could be reasonably and effectively exercised under CA law? · Paul McGrady 2: @Phil - I thought they did and that was what was "sold" to the community before the Marrakech vote. · Greg Shatan: The answer is yes but we have been asked to validate this as a community opinion vs a US legal opinion. · Philip Corwin: Also, BTW, since the Board was effectively able to veto the member model maybe we should take their temperature on whether they have any sympathy for considering an ICANN organization change of jurisdiction in the near term. As they have accepted the designator model under CA law, should we expend any substantial time or $ on looking at other jurisdictions to cure "gaps" if in the end the Board is going to tell us that they reject the concept of moving at this time? They did dispatch the new CEO to Capitol Hill two weeks ago to tell US Senators that ICANN had full intent to remain in the USA. · Pedro da Silva: Support DM suggestion to prepare a set of questions. · Greg Shatan: Is there anything beyond the question beyond the recommendation and how it is implemented. Uncertain about PDS issues. We will produce a question and then proceed to the analysis. Would ask participants to work with the list for questions. Meeting adjourned.

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Agenda for Jurisdiction Subgroup Meeting #5
by Greg Shatan Sept. 26, 2016

Sept. 26, 2016

With apologies for sending this so close to the meeting, I've attached the agenda for today's meeting. It would be great if you have been following the Gap Analysis Discussion started this weekend; this should carry over into the call. Best regards, Greg & Vinay

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Agenda for Meeting #4
by Greg Shatan Sept. 26, 2016

Sept. 26, 2016

All, The agenda for meeting #4 is attached. We look forward to the call. Greg & Vinay

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More on gap analysis
by McAuley, David Sept. 26, 2016

Sept. 26, 2016

I would like to respond to Greg's suggestion in the call earlier this week. On the call we discussed the meaning of gap analysis and its possible implications. Greg asked if Pedro and I would separately note on list the points we each had been attempting to make on the call. What follows are my personal views. The sub-team was addressing the phrase in paragraph 30 of Annex 12 of the CCWG Final Report asking that we give consideration to, "Confirming and assessing the gap analysis, clarifying all concerns regarding the multi-layer jurisdiction issue." I was/am of the view that the concept of "confirming" recognized that WS1 had in effect performed a gap analysis - the potential gap being whether the accountability measures that were proposed could or could not be applied to, and ultimately enforced against, ICANN. For example, when we decided in WS1 that we wanted the ability to remove board members we asked Sidley/Adler if that was possible within the California form we were analyzing - designator, not membership. If the answer had been that we could not then a gap would have existed. If it was that we could then we asked counsel to put the provision into appropriate legal language. We did the same for all accountability measures we wished to put in place, specifically revising the ICANN Mission, enhancing the IRP, and giving the community power/right to: · Reject ICANN budgets, IANA budgets, or strategic/operating plans; · Reject changes to ICANN's standard bylaws; · Approve changes to new fundamental bylaws, Articles, and ICANN's sale or disposition; · Remove a director; · Recall the entire board; · Initiate binding IRP; · Reject ICANN Board decisions relating to reviews of the IANA functions, including the triggering of Post-Transition IANA separation; and · Right of inspection, investigation. That, to me, was a gap analysis. In fact, Annex 12, paragraph 26, noted that WS1 might well have encountered gaps along the way - it recognized the fact that California law does have limits with respect to accountability mechanisms that might be imposed on ICANN. It is that recognition in paragraph 26 that admits a possible gap that we in the sub-team are meant to assess, as I see it. It is also important to note that our remit to confirm/assess the gap analysis is given to us with two qualifiers in paragraph 30: · First, that the main issues that we need to investigate in WS2 "...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:" (emphasis added) and · Second, our consideration in WS2 "will focus on the settlement of dispute jurisdiction issues and include..." the act of confirming/assessing the gap analysis that we are engaged in, along with identifying potential alternatives. I underscored the word "necessarily" in the first qualifier above because it appears consistent with the notion of being contingent - on us closing any potential gap. Our sub-team job is relatively straightforward: have we (WS1) managed to avoid or close such gaps; in other words, are the accountability mechanisms we chose applicable and enforceable? If we have succeeded then I submit that our work is limited to analyzing jurisdiction only insofar as it relates to settlement of disputes. And that is why our remit to "identify" potential alternatives, also bounded by the two qualifiers, is to examine potential alternatives with our focus being on settlement of dispute jurisdiction. During the call, Jorge listed in the chat certain portions from the CCWG Second Report mentioning gap analysis (addressing such things as ability to sue/be sued to enforce bylaws and other accountability mechanisms; binding-ness of IRP decisions, and more) and which called for more analysis. I believe that further analysis was done and reflected in the Final Report, which gave us the language we are now addressing. It is important to look at the sub-team work in context. In my view, incorporation in California has one distinct advantage over other locations as concerns ICANN - for over 18 years it has worked. It would be imprudent to consider a location change absent a material problem stemming from jurisdiction that is incapable of resolution. Moreover, consideration of an alternative for ICANN's location would entail, per jurisdiction considered, roughly the same investment in time and lawyers' attention that WS1 expended on legal fees. If this sub-team intends to go down that path, something I recommend against, then we need to make sure that we have budget to support such efforts. So in my view it makes practical sense as well as analytical sense (as performed by the CCWG) for the location issue to be out of scope in WS2 other than as it relates, if at all, to settlement of disputes. As Göran Marby said in last week's hearing , ICANN is committed to remaining domiciled in the US, where it has operated successfully and, among other things, put in place thousands of contracts. David David McAuley International Policy Manager Verisign Inc. 703-948-4154

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Notes, recordings, transcript for WS2 Jurisdiction Subgroup Meeting #4 - 21 September 2016
by MSSI Secretariat Sept. 26, 2016

Sept. 26, 2016

Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #4 – 21 September 2016 will be available here: https://community.icann.org/x/EB2sAw 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 elements of the chat): 1. Welcome Note 29 participants at start of call. Greg Shatan: no changes to SOI and no participants on phone only. 2. Approach to ICANN’s Place of Incorporation and Headquarters Location a. Should the scope of the Jurisdiction topic include examining the effects of ICANN's place of incorporation and location (for example, on the actual operation of policies and accountability mechanisms and on the settlement of disputes), or should this be out of scope? b. Should the scope of the Jurisdiction topic include the possibility of recommending that ICANN be directed to change its place of incorporation and/or headquarters location, or should this be out of scope? David McAuley: This should be resolved by this group if possible and it may take several weeks. This is essentially the nub of our work. Greg Shatan: uncertain if this is the nub or a red herring. Tijani Ben Jemaa: Agree with DM we need to resolve this here. We need to agree on all the layers. Milton Mueller: David: Are you saying we do not resolve the questions yet, or we do not resolve whether they are in scope or not? David McAuley (RySG): in scope or not - to me that also takes time and thought - I believe not in scope but understand others don't agree. Greg Shatan: the objective of the questions was to confirm the remit from WS1. Kavous Arasteh: Why do we need to discuss this here (2nd question) Finn Petersen, GAC - DK: Agree with Kavouss -ICANN's entire new structure and the empowered community is all based on California law. Our task is not to change the place of incorporation of ICANN. But if anybody can point to potential problems, we might look into means to address such problems without changing ICANN’s place of incorporation. Avri Doria: it is not in our scope and shall not be discussed? Milton Mueler: .Jurisdiction of incorporation is a bad idea but not out of scope. Long term we need to address this. My personal view is that it should be out of scope but not against discussing. Greg Shatan: there are 3 answers to the question: invalid, make recommendations to CCWG. Jeff Neuman: 2B is out of scope becasue of practicality. 2A however is in scope. Milton Mueller: Agree, Jeff, but that is an argument against changing jurisdiction it is not an argument that it is out of scope Greg Shatan: When we discuss scope we are referring to tthe scope of this group. Phil Corwin: My view is that we should enshrine ICANN incorporation in the US. We should not use scope to limit discussions of this. Milton Mueller: right Philip, it's a question of rationality not scope Pedro da Silva: I see the two questions as belonging to two different parts of our work. 2A is about scope and I believe it includes ICANN's jursidiction of incorporation as part of the layers. The second part of our work is about recommendations and there are many good arguments about not moving ICANN and these will be as valid in 9 months as they are now - but at that time we will have much more input. jorge cancio (GAC Switzerland): for the gap analysis we should look at the second draft report available here: https://community.icann.org/pages/viewpage.action?pageId=53783460. The relevant pages are 121-124. Milton Mueller: Jeff, my understanding was that a lot of people wanted to discuss it in WS1 but it was too disruptive a change in the short term so we told them to push it into WS2 Erich Schweighofer: The place of jurisdiction is flexible but it is unwise to change unless the present favourable situation exists. Other options have to be considered, maybe trying with certain activities. Milton Mueller: Jeff, my understanding was that a lot of people wanted to discuss it in WS1 but it was too disruptive a change in the short term so we told them to push it into WS2 Erich Schweighofer: The place of jurisdiction is flexible but it is unwise to change unless the present favourable situation exists. Other options have to be considered, maybe trying with certain activities. David McAuley: the remit in 2A is good. 2B is about identifying alternatives. However I do not beleive we should look at moving ICANN. But we should have alternatives if there is ever a problem. Kavous Arasteh: We should be practical, pragmatic and logical - everything is based on California law and there is a provision in the Bylaws to allow the Board to propose moving if necessary. There is no reason and no possibility that in the next few years that this would ever get approved. We do not need anything on changing jurisdiction of incorporation. Christopher Wilkinson: in 2A my interest is that dispute resolution is available to participants worldwide and not limited to American legal system, mostly about the cost which would prevent many from using it. Paul McGrady: We have been asked in the GNSO to approve a budget for WS2 and looking at alternative jurisdictions will require significantly more funds. As the WS1 recommendation leaves it open to us if we discuss jurisdiction or not - and if we want to do this optional topic we need a consensus call from this group to take work which will take more than a year and 10's of millions of dollars. Tijani Ben Jemaa: If we do not reach consensus on anything we simply report it. Greg Shatan: Given the time left on this call I would ask everyone to read Mathew Shears comment. Kavous Arasteh: What is the status of 2B? Greg Shatan: My impression is there is little support for taking place of incorporation off the table as looking at its effects. Paul McGrady: So we are not talking about the choice of Jurisdiction but rather about the effects of the exisitng Jurisdiction. If there are issues with the effects the group could recommend modified accountability measures to the CCWG. Greg Shatan: yes this is what I am asking. Examples looser pays. So if this cannot be discussed please give a red X. None. As such this should be in scope but will ask the list. 3. Gap Analysis: Annex 12 includes “confirming and assessing the gap analysis.” a. We need a common understanding of what this refers to. Does the “gap analysis” refer to a determination in WS1 that there were no significant gaps in the WS1 accountability proposal resulting from ICANN's current jurisdictional framework? b. How should we confirm and assess the gap analysis? David McAuley: the current Byalws meets the requirements and as such the gap analysis has been done. Kavous Arasteh: GAP analysis needs to be addressed. Pedro da Silva: Disagree with DM and beleive we have not done a gap analysis. the difference betweeen our accountability requirements vs how they were implemented under California laws. One example of this is the models that were available such as Designator and the Empowered Community. Greg Shatan: We need to write this up for disccussion. Tijani Ben Jemaa: there are two interpretations - if there is a need to do one we should have a small group on this. Philip Corwin: @David--Agree that ICANN is free to agree to using law/courts of a jurisdiction other than CA for contract disputes -- but also think it is most unlikely to do so for standard agreements with contracted parties. Why would it want to take on risks of different laws and adjudictaion systems, not to mention cost of hiring local counsel? jorge cancio (GAC Switzerland): from the 2nd drafzt report: "1043 Initial gap assessment based on current CCWG-Accountability proposals: 1044 At this point of the work of the CCWG-Accountability, taking into account the comments received, the following issues have been identified for further investigation: • Requirement 4 (ability to sue and be sued to enforce Bylaws or accountability mechanisms): while some consider this requirement to be necessary, others would avoid as much as possible the use of any single country’s legal system. • Trade-off between CCWG-Accountability requirements and options under California law, particularly when discussing the community empowerment model. • Whether IRP decisions against ICANN would be binding despite local jurisdiction decisions. • Requirement 3 on governing law for contracts with registrars and registries may require further investigation. 1045 While these issues require further investigation, the CCWG-Accountability has not yet conducted a substantive examination of alternative jurisdict jorge cancio (GAC Switzerland): ....jurisdictions that would better fit its requirements. While some commenters suggest that incorporation of ICANN under other legal systems, such as Swiss not-for-profit, would be beneficial (yet the basis for their assumption remains uncertain), further analysis and deliberation is needed on a fact-based approach to be entertained during Work Stream 2. " jorge cancio (GAC Switzerland): at least now its on the record :-) David McAuley (RySG): agree @ Phil Greg Shatan: Strongly encourage particpation on the list. Also ask for people to work on the Google docs. 4. Continued Detailed Reading of the Google Docs. a. First Google Doc: https://docs.google.com/document/d/1UGRQqP5Bs923nmDYekZn5ZL7-DQc_QSa0GSnFoj… b. Second Google Doc: https://docs.google.com/document/d/1N2eCmjbA6bxJxCEluEHJIBzP_sGPN6krEqDshA0… 5. Other Potential Inputs to our Work. a. More Detailed Review of Lightning Talks (summarized in Staff Paper) b. Pertinent Literature (influenced by Scope) c. Experts/Legal Advice

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Re: [Ws2-jurisdiction] More on gap analysis
by Steve DelBianco Sept. 24, 2016

Sept. 24, 2016

I’ve not been able to join this group’s calls, but would like to register my agreement with David McAuley. My distinct recollection is that our Sidley and Adler legal teams told us there were no significant “gaps” in ensuring we could legally enforce the new Empowered Community mechanisms. This WS2 team should look at that gap analysis and confirm the conclusion. If there are enforceability gaps noted by our lawyers, we should analyze whether those gaps could be closed using ANY form of incorporation in ANY jurisdiction. I suspect our gap analysis will show that relative to other forms of organization in other places, we are as close as we need to be, and it is not worth the cost and controversy of pursuing alternatives. — Steve DelBianco Executive Director NetChoice From: <ws2-jurisdiction-bounces(a)icann.org<mailto:ws2-jurisdiction-bounces@icann.org>> on behalf of David McAuley <dmcauley(a)verisign.com<mailto:dmcauley@verisign.com>> Date: Saturday, September 24, 2016 at 9:59 AM To: "ws2-jurisdiction(a)icann.org<mailto:ws2-jurisdiction@icann.org>" <ws2-jurisdiction(a)icann.org<mailto:ws2-jurisdiction@icann.org>> Subject: [Ws2-jurisdiction] More on gap analysis I would like to respond to Greg’s suggestion in the call earlier this week. On the call we discussed the meaning of gap analysis and its possible implications. Greg asked if Pedro and I would separately note on list the points we each had been attempting to make on the call. What follows are my personal views. The sub-team was addressing the phrase in paragraph 30 of Annex 12 of the CCWG Final Report asking that we give consideration to, “Confirming and assessing the gap analysis, clarifying all concerns regarding the multi-layer jurisdiction issue.” I was/am of the view that the concept of “confirming” recognized that WS1 had in effect performed a gap analysis – the potential gap being whether the accountability measures that were proposed could or could not be applied to, and ultimately enforced against, ICANN. For example, when we decided in WS1 that we wanted the ability to remove board members we asked Sidley/Adler if that was possible within the California form we were analyzing - designator, not membership. If the answer had been that we could not then a gap would have existed. If it was that we could then we asked counsel to put the provision into appropriate legal language. We did the same for all accountability measures we wished to put in place, specifically revising the ICANN Mission, enhancing the IRP, and giving the community power/right to: · Reject ICANN budgets, IANA budgets, or strategic/operating plans; · Reject changes to ICANN’s standard bylaws; · Approve changes to new fundamental bylaws, Articles, and ICANN’s sale or disposition; · Remove a director; · Recall the entire board; · Initiate binding IRP; · Reject ICANN Board decisions relating to reviews of the IANA functions, including the triggering of Post-Transition IANA separation; and · Right of inspection, investigation. That, to me, was a gap analysis. In fact, Annex 12, paragraph 26, noted that WS1 might well have encountered gaps along the way – it recognized the fact that California law does have limits with respect to accountability mechanisms that might be imposed on ICANN. It is that recognition in paragraph 26 that admits a possible gap that we in the sub-team are meant to assess, as I see it. It is also important to note that our remit to confirm/assess the gap analysis is given to us with two qualifiers in paragraph 30: · First, that the main issues that we need to investigate in WS2 “…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:” (emphasis added) and · Second, our consideration in WS2 “will focus on the settlement of dispute jurisdiction issues and include…” the act of confirming/assessing the gap analysis that we are engaged in, along with identifying potential alternatives. I underscored the word “necessarily” in the first qualifier above because it appears consistent with the notion of being contingent – on us closing any potential gap. Our sub-team job is relatively straightforward: have we (WS1) managed to avoid or close such gaps; in other words, are the accountability mechanisms we chose applicable and enforceable? If we have succeeded then I submit that our work is limited to analyzing jurisdiction only insofar as it relates to settlement of disputes. And that is why our remit to “identify” potential alternatives, also bounded by the two qualifiers, is to examine potential alternatives with our focus being on settlement of dispute jurisdiction. During the call, Jorge listed in the chat certain portions from the CCWG Second Report mentioning gap analysis (addressing such things as ability to sue/be sued to enforce bylaws and other accountability mechanisms; binding-ness of IRP decisions, and more) and which called for more analysis. I believe that further analysis was done and reflected in the Final Report, which gave us the language we are now addressing. It is important to look at the sub-team work in context. In my view, incorporation in California has one distinct advantage over other locations as concerns ICANN – for over 18 years it has worked. It would be imprudent to consider a location change absent a material problem stemming from jurisdiction that is incapable of resolution. Moreover, consideration of an alternative for ICANN’s location would entail, per jurisdiction considered, roughly the same investment in time and lawyers’ attention that WS1 expended on legal fees. If this sub-team intends to go down that path, something I recommend against, then we need to make sure that we have budget to support such efforts. So in my view it makes practical sense as well as analytical sense (as performed by the CCWG) for the location issue to be out of scope in WS2 other than as it relates, if at all, to settlement of disputes. As Göran Marby said in last week’s hearing , ICANN is committed to remaining domiciled in the US, where it has operated successfully and, among other things, put in place thousands of contracts. David David McAuley International Policy Manager Verisign Inc. 703-948-4154

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Items for CCWG-Plenary: (1) Place of Incorporation
by Greg Shatan Sept. 20, 2016

Sept. 20, 2016

All, Based on our discussions, there were two topics identified as ones to be brought back to the CCWG Plenary, which is meeting tomorrow. These topics relate (i) examining ICANN's place of incorporation and (ii) the Gap Analysis that we have been tasked to "confirm and assess." I'll deal with the gap analysis issue in a separate email. This email deals with how (and whether) to approach the effects of ICANN's place of incorporation. Both in this group and in the CCWG generally, we have heard a range of views on how (and whether) to examine the effects of ICANN's place of incorporation (and perhaps, by extension, the location of ICANN's headquarters). On the one hand, there have been calls for a declaration that ICANN will forever be incorporated and located in California, putting issues relating to ICANN's place of incorporation/location out of scope. On the other hand, there have been calls to have any effects arising from ICANN's place of incorporation/location and all outcomes/recommendations relating to those effects be open to this group. I don't see sufficient support for either of these positions in the subgroup in their current form, so we need a way forward capable of broad support in this subgroup and the CCWG. Since we have not been able to resolve this matter in our group, this seems like an appropriate topic to bring back to the CCWG Plenary for clarification and guidance. *In looking for a way forward, I suggest we seek answers to two questions, based on the two positions above:* *(a) Should the subgroup (and thus the CCWG) be free to examine the effects of all "layers" of ICANN "jurisdiction," including ICANN's place of incorporation and location?* (Based on other aspects of Annex 12, this probably should focus in particular on the effect on "actual operation of policies and accountability mechanisms" and on settlement of disputes, but we don't need to make that scope decision quite yet.) *(b) Should the subgroup (and thus the CCWG) keep open all options for outcomes/recommendations arising from this examination (including changing ICANN's place of incorporation and/or location)?* We need an outcome that is likely to get broad support in the subgroup and the CCWG and allow us to move forward with our work. At the same time, we need to recognize that not everyone will be pleased, but pleasing everyone is impossible. After reviewing the various points and positions raised in the subgroup and CCWG, I would like to put forward the following answers as a "strawman": *(a) The subgroup should be free to examine the effects of ICANN's current place of incorporation/location.* *(b) The subgroup should eliminate the possibility that we will recommend to CCWG that ICANN be moved from California, either as a place of incorporation or as a physical location.* I've based this suggestion on an examination of issues raised by various participants during our work, listed below. You should all respond with your thoughts on the appropriate response to these questions, and feel free to provide any additional inputs for consideration. 1. Our remit is to look at all the "multi-layers" of jurisdiction, not only at selected layers. All jurisdictional issues relate back to rules of law and choices of law, and the influence of California law and location is relevant to all of those discussions. As a result, failure to even look at any aspect of the effects (positive or negative) of ICANN's place of incorporation and location would be seen an incomplete exercise of the remit of this group. 2. A declaration in perpetuity is inappropriate. ICANN, as a private corporation, should be free to consider changes to any aspect of its Bylaws and Articles, according to the methods chosen for its governance. We have revised and reformed these methods, and we should be able to use them in the future for all topics, even this one. 3. The CWG-Stewardship and CCWG-Accountability proposals (and their implementation) depend on California as the place of incorporation. For example, ICANN's Bylaws are based in California law and the Bylaw revisions (now accepted by ICANN but waiting to be made effective) are similarly based on California law. 4. More particularly, the Empowered Community is based on the "designator" concept in California non-profit law and on the treatment of "unincorporated associations" (particularly, the personhood of unincorporated associations) as set forth in California law. 5. It has been suggested that changing ICANN's place of incorporation would disrupt the proposed changes just as they are being put in place and essentially "re-open" Work Stream 1. This would undo a great deal of work, throw the Accountability mechanisms and other changes into uncertainty, and open the door to massive attempts at "re-trading". 6. We should allow the new accountability mechanisms an appropriate amount of time to function "as is" before even considering a jurisdictional change that would have across-the-board effects on these mechanisms and other recommended reforms (and require another CCWG, or at least WS3). 7. The revised (and current) Articles of Incorporation state that ICANN "is organized [i.e., incorporated] under the California Nonprofit Public Benefit Corporation Law for charitable and public purposes." Changes to the Articles should be approached with the same level of gravity as changes to the Fundamental Bylaws, which are not to be taken lightly. Any change will require the same process as changes to the fundamental Bylaws (i.e., 75% vote of Board and convening Empowered Community and getting EC approval). 8. Arriving at a choice of another jurisdiction for these purposes would likely require a multi-year effort to accomplish, which by itself is outside the scope of Work Stream 2, which essentially has a one-year lifespan. We need to consider whether this is a practical outcome. 9. Even if we find negative effects from ICANN's California incorporation or location, we should start with less disruptive and more contained remedial measures. It would be premature to move past more straightforward options and recommend the drastic outcome of moving ICANN. If more modest options are tried and they fail to resolve a fundamental problem, then it would be appropriate for some future WG (or the EC) to suggest bigger changes. 10. Aside from the governance issues, moving ICANN completely out of California (and possibly the US) would require an immense amount of work for the corporation, staffing problems, etc. 11. Examining and resolving issues such as venue and providers of dispute resolution mechanisms, language of proceedings, applicable law(s) for disputes: addressing the laws of jurisdiction where contracting parties are established (including potential conflicts between commitments derived from ICANN policies and such national legal frameworks), and internal redress mechanisms does not require the ability to change ICANN's place of incorporation or location. I look forward to all your thoughts. Greg

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CCWG Plenary Topic: Gap Analysis
by Greg Shatan Sept. 20, 2016

Sept. 20, 2016

All, As mentioned in my prior email, we discussed seeking clarification from the CCWG Plenary regarding the Annex 12 statement that the Jurisdiction work should include "confirming and assessing the gap analysis." The statement does not include any further identification of the gap analysis or its results. To the best of our knowledge, there is no analysis done in WS1 that was called a "gap analysis" in so many words. Our rough interpretation is that this refers to the (implicit?) determination that there were no significant gaps in the accountability proposals resulting from ICANN's current jurisdictional framework. However, clarifying (or correcting) this would be helpful. To bring this back to the CWG Plenary, I would propose the following question: *The scope of the Jurisdiction topic in Annex 12 includes "confirming and assessing the gap analysis." * *1. Can the CCWG Plenary identify the "gap analysis" referred to? * *2. If there was no formal gap analysis, is it correct to assume that this refers to a determination that there were no significant gaps in the WS1 accountability proposal resulting from ICANN's current jurisdictional framework? * Greg

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Notes, recordings, transcript for WS2 Jurisdiction Subgroup Meeting #3 - 14 Sept
by MSSI Secretariat Sept. 20, 2016

Sept. 20, 2016

Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #3 – 14 September 2016 will be available here: https://community.icann.org/x/shusAw 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 (BT): Relevant web pages: General Jurisdiction wiki https://community.icann.org/display/WEIA/Jurisdiction This meeting: https://community.icann.org/pages/viewpage.action?pageId=61610930 1. Welcome, attendance, SOIs, etc. Vinay Kesari: no changes. 2. ICANN's recently released IANA Stewardship Q&A, particularly #7 Greg Shatan: (from the ICANN response) Will ICANN relocate its headquarters outside of the United States after the transition?No. ICANN will not relocate its corporate headquarters location after the transition. The transition proposal clearly states [PDF, 2.32 MB] that "the legal jurisdiction in which ICANN resides is to remain unchanged." California law is the basis for the new mechanisms created to empower the ICANN community and hold ICANN the organization, Board and community, accountable. In addition, ICANN's Articles of Incorporation are filed under California law, and its Bylaws state that ICANN's headquarters are in California. Vinay Kesari: any comments? Tijani Ben Jemaa: What is the value of this for our work? This does not seem to add anything for us. Christopher Wilkinson: Concerned with the activities of the Sidley law form - codifying the relationships between all parts of ICANN seems to be significantly too much. This would be a cause for thinking of moving from the US jurisdiction. Erich Schweighofer: Christopher Wilkinson is right: a benevolent jurisdiction without much interference is a key element. Tatiana Tropina: I never thought that tjis group in the WS2 was supposed to discuss the issue of the ICANN jurisdiction as a corporation... Pedro da Silva: ICANN's recently released IANA Stewardship Q&A is unclear if this is the position of the community or a single Board member. Question 7 should not be relevant to our discussion. Jeff Neuman: I have to admit I am lost. I am only paying attention to WS2 items so if there are other documents I need to review, can we please post those docs Steve DelBianco [GNSO - CSG]: Bylaws and Articles have ALWAYS said California corporation and location. We didn't change that. But we did give the empowered community the ability to block bylaws change, and to approve any change to the Articles. Kavous Arasteh: We should not be discussing this Q&A question as it is misleading. Tijani Ben Jemaa: let us focus on working on our draft document. Vinay Kesari: The Q&A question 7 is relevant input. Greg Shatan: All CWG related issues should be out of scope for this group. Kavous Arasteh: Agree with respect to CWG. Pedro da Silva: Why misleading - because it limits the issue of jurisdiction to California law and brings no new information to our discussion. Steve DelBianco [GNSO - CSG]: Pedro -- jurisdiction of ICANN's contracts can be specified in the contract. Not the same thing as ICANN's place of location Gerg Shatan: Is jursidiction oof headquarters of ICANN a topic for this group? Pedro da Silva: Yes - it is important no to pre-judge the answers to the multi-layer discussions. Jeff Neuman: I do not believe that the place of incorporation is in scope for this subgroup Tatiana Tropina: I also don't believe that the place of incorporation is for this group to decide . Jeff Neuman: As Mr. Marby said during the testimony today, ICANN's entired new structure and empowered community is all based on California and California law. If we deviate from that, then ICANN's entire model and everything we have worked on for the past number of years gets thrown out the window. Greg Shatan: Obviously there is a difference of opinion on this and we should note that this is an open question which we will have to resolve soon. Robin Gross: Jeff and Tatiana are right. We can't redo all those reforms at this point. Kavous Arasteh: Location of ICANN head office is not open for discussion. jorge cancio (GAC Switzerland): I feel we do not need to be so absolute - the current location is a fact. We always said we would look at whether that means any problem. If there is such a problem, that does not mean that we suddenly change the location, but that we look for solutions that are reasonable... Pedro da Silva [GAC Brasil]: All I am defending is an open approach to this topic and thereby not antecipate any results. Edward Morris: Section 24.1 of the new Bylaws puts the place of business in Los Angeles, California but does allow for the establishent of offices elsewhere. Tijani Ben Jemaa: This Q&A is not relevant to our work let us focus on our work. jorge cancio (GAC Switzerland): anyway, the present and real location of ICANN is a place called "adobe connect" :P 3. Scope discussion: - Continue Detailed Reading of Google Doc (Staff Paper, as revised and annotated by Members of Subgroup) Greg Shatan: we need to increase contributions. Kavous Arateh: what do you mean by gaps. Greg Shatan: this language is in Recommendation 12 from the WS1 report. Jeff Neuman: Remove BUT NOT NECESSARILY and agree that we cannot get into where ICANN is incorporated. jorge cancio (GAC Switzerland): I'm not sure whether this subgroup is empowered to change the "job description" established by the full CCWG... that's why I always suggested to start with annex 12 and its wording, without picking and choosing from it. Jeff Neuman: Perhaps a better way to state this is "What are the issues that arise due to the current jurisdiction in which ICANN is located"? jorge cancio (GAC Switzerland): I would agree with that Pedro da Silva: what is the difference between the accountability requirements from WS1 vs the implementation. Also we cannot change the scope provided to us by the full CCWG. We need to consider all aspects of jurisdiction. Jorge cancio (GAC Switzerland): But as said, location is one aspect - the venue and character of the arbitration mechanisms and litigation venues, as well as the applicable law to disputes would be important issues Jeff Neuman: Can you point me to the exact location in the WS1 final report which states that we remain open to consider the place where ICANN is incorporated? Greg Shatan: there are obviously two views vs location of incorporation. We may have to bring this back to the plenary if we cannot resolve this ourselves. We have two significant issues we need to continue to discuss: Should the scope include where ICANN is incorporated and what a GAP analysis would be in this case. jorge cancio (GAC Switzerland): agree with Greg: some questions, especially if they mean to change text agreed by the CCWG and the community as a whole in Marrakech, at least need to go to the plenary Jeff Neuman: And my proposal is that we do not talk more about the incorporation for the reasons Mr. Marby testified today Jeff Neuman: And because that would overturn everything we have done for the past several years Kavouss Arasteh: If we recosider the location all assumption based on which the " Sigle Designator2 was adopted will disappear and we would be sent back to square one Pedro da Silva: People seem to be concerned that we even discuss this - we need to understand how ICANN's jursidiction interferes with its work. Kavouss Arasteh: Location of ICANN IS DIFFERNT FROM JURISDICTION Jeff Neuman: @Kavouss - agreed. And that is not the same thing as "place of incorporation" Jeff Neuman: But I do not believe we can or should touch incorporation jorge cancio (GAC Switzerland): First is to assess problems - of all kinds. Second is looking to meaningful, reasonable means to adress such problems... Tijani Ben Jemaa: Why do we keep working with Google docs which is not acceptable to all. We should work on the Wiki. Also we need to start on the multi-layer jurisdiction. We need to agree on the layers. Greg Shatan: We can try to Wiki tool for one aspect such - maybe GAP analysis. - Commence Discussion of draft Scope/Focus Google doc (to be circulated) 4. Other Potential Inputs to our Work: - More Detailed Review of Lightning Talks (summarized in Staff Paper) - Pertinent Literature (influenced by Scope) - Experts/Legal Advice 5. AOB 6. Upcoming Meetings Greg Shatan: next meeting is 21 Sept. 1300UTC 7. Adjourn Greg Shatan: Adjourned.

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