February 2017 - Ws2-jurisdiction

Re: [Ws2-jurisdiction] Agenda for Today's Meeting at 19:00 UTC
by Mathieu Weill Feb. 23, 2017

Feb. 23, 2017

Please note my apologies for this call. Mathieu Weill --------------- Depuis mon mobile, désolé pour le style > Le 23 févr. 2017 à 18:38, Greg Shatan <gregshatanipc(a)gmail.com> a écrit : > > All, > > Here is the agenda for today's meeting. Word and PDF versions of Google Drive documents will follow shortly. Links to the Google Drive documents are in the agenda. > > Greg > Greg Shatan > C: 917-816-6428 > S: gsshatan > Phone-to-Skype: 646-845-9428 > gregshatanipc(a)gmail.com > > > <Jurisdiction Meeting #21 Agenda.docx> > <Jurisdiction Meeting #21 Agenda.pdf> > _______________________________________________ > Ws2-jurisdiction mailing list > Ws2-jurisdiction(a)icann.org > https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

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Questions based on Parminder's statements in the last meeting about GAC participation
by Greg Shatan Feb. 22, 2017

Feb. 22, 2017

All, On our last call there were some remarks by Parminder about the position of GAC members regarding ICANN. It was not clear to me that GAC members actually held the beliefs ascribed to them. We were not able to determine this on the call, one way or the other. I've now excerpted the relevant sections of the transcript and confirmed them against the audio. These sections are attached. In addition to the question about the GAC, these statements raise a few other questions: *First, for any GAC members, is it your position that you agree with Parminder's statements regarding GAC members?* *Second, for all participants, do you agree that only a law that has been democratically arrived at by all the citizens of the world can be applied to ICANN? Are you aware of any such body of law?* *Third, for all participants, do you agree that US law cannot be applied to ICANN because it has only been democratically arrived at by US citizens?* *Fourth, for all participants, do you agree that if ICANN is sued in a jurisdiction where it has an office, other than its jurisdiction of incorporation and loses, that ICANN can avoid complying with the judgment by closing its office in that jurisdiction?* *Fifth, assuming for the sake of discussion that "ICANN primarily is a body with a global government function and only secondarily, an US nonprofit," what is the relevance, if any, to our primary tasks of enhancing ICANN's accountability and determining whether ICANN's accountability is negatively affected by** its current jurisdictional set-up?* Thank you. Greg *Greg Shatan* C: 917-816-6428 <(917)%20816-6428> S: gsshatan Phone-to-Skype: 646-845-9428 <(646)%20845-9428> gregshatanipc(a)gmail.com

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Revised Questions for ICANN Legal
by Greg Shatan Feb. 22, 2017

Feb. 22, 2017

All, Here is a revised version of the questions for ICANN legal, with the previous changes accepted and new changes based on our last call shown in track changes. Please reply if you have any questions or comments, or if you believe these are now ready to forward to the CCWG's legal committee. Thanks! Greg *Greg Shatan *C: 917-816-6428 S: gsshatan Phone-to-Skype: 646-845-9428 gregshatanipc(a)gmail.com

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Jurisdiction on an existing Obstacle
by Kavouss Arasteh Feb. 11, 2017

Feb. 11, 2017

*Dear Greg* *As raised in todays's meeting * *To become ICANN Accredited Registrar, all registrars need to sign a contract with ICANN and ICANN should applies some criteria before accepting the registrar. ICANN is a US Entity and can't get involved into any contract with the **people of * * some countries This means having an Accredited Registrar for .com and .net and many more gTLDS in those countries is almost impossible. The is business blocker.This is an important issue to be carefully examined and resolve.The question is whether after the transition, still ICANN refrain to sign the contract in question ,if no where that is reflected and if yes, what solution is available to remove such discrimination .RegardsKavouss *

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Notes, recordings and transcript for WS2 Jurisdiction Subgroup Meeting # 20 | 9 February 2017
by MSSI Secretariat Feb. 10, 2017

Feb. 10, 2017

Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #20 – 9 February 2017 will be available here: https://community.icann.org/x/SpDRAw A copy of the notes and action items 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 portions of chat): 17 participants at start of call 1. Welcome Greg Shatan: No audio only, no changes to SOIs. 2. Questionnaire Greg Shatan: questionnaire has been translated into the ICANN languages and should be posted today. We will need to develop a methodology for analyzing responses. 3. Hypothetical #1 a. https://docs.google.com/document/d/1W3U9-NnmO2Kk3d_qd4ApMcDKf5VcBMf93An6zg2… Greg Shatan: hope everyone will participate in this exercise. Any comments. Parminder: The critical part of this is the court that orders ICANN to change things - what happens then? this is different depending on where - jurisdiction of inc., presence or none. We should therefore split into three streams. We need not to go too much at positive results - we need to focus on issues. Greg Shatan: seem to be prejudging the ICANN legal answer - uncertain I agree with this. David McAuley: Hypothetical is about forecasting the future - the one thing we are more certain about is US jurisdiction given 19 years of experience. As such would focus on jurisdiction of disputes as per request of WS2. Avri Doria: seems early to make the judgement of satisfactory. quite possibly true, but early to come to a conclusion. Greg Shatan: revue of actual litigation may help with this. The notion that ICANN can only sued under specific circumstances seems counter intuitive to me. matthew shears: the review of existing cases should act as the reality check on the hypothetical Avri Doria: ah satisfactory for ICANN? or for the other litigants? David McAuley: What I meant Avri was that it seems satisfactory for the ability to maintain litigation, not outcome oriented Avri Doria: my comment applies to that David McAuley: OK, thanks, i read it differently then Avri Doria: people force litigation into courts that are advantageous to themselves if they can. Paul McGrady: This hypothetical is based on notion that ICANN is an international governance body - there are no documents confirming this - it is a California corp. period. We need to clean this up significantly. Greg Shatan: Note that this is Google doc and would invite everyone to participate - so over to you PM. Paul McGrady: uncertain I want to edit this bullet which says ICANN is above the law. Greg Shatan: Good point. but need consensus from the group on if it should be in or not. Phil Corwin: Want to comment on same points as PM - most of of page1 and page 2 should struck as it overstates ICANN's role. ICANN can be sued in any number of countries - the final assertion makes no sense vs Human Rights. matthew shears: I share Phil's concerns David McAuley: Agree w/point Phil making that ICANN needs to be subject to Jx somewhere(s) Parminder: My entire engagement in ICANN and in this group is because I think ICANN is an international governance body. or a body with a global governance function and a lot of people are here because of that (governance function) and GAC members are not interested to advise a US non-profit. The fact that ICANN is a US non-profit is an anomaly and not its global governance status and is not of primary importance. I agree with PC that law is important - but only democratic law. US law is made by Americans and as such is an anomaly and is not a democratic law for an international governance body suchas ICANN – this, for me, is the core of the issue for the jurisdiction group. Erich Schweighofer: ICANN has a global public function but based on California law. Can work very well - see the example of the International Red Cross Committee. Erich Schweighofer: States have to accept this role, then everything will be fine. Erich Schweighofer: If not - another solution is required. Jorge Cancio (GAC Switzerland): Erich: the ICRC has a specific status... quite different... Erich Schweighofer: I know - under Swiss law. Jorge Cancio (GAC Switzerland): not only Wale Bakare: Yes, @Paul. I don't think we can completely move away from that Erich Schweighofer: Internationally - not so much; Geneva Convention and a lot of customary international law. Jorge Cancio (GAC Switzerland): that's quite a lot... Parminder: Yes, i will like to know if GAC members do not consider ICANN primarily as a global governance body Erich Schweighofer: States must accept the special role of IcANN, that is decisive. Avri Doria: i though he said they do, but he doesn't Parminder: greg, you are mis representing my question Erich Schweighofer: Subject to court's interference can be horrible. avri doria: not what i heard Jorge Cancio (GAC Switzerland): strange question to GAC members... Avri Doria: not what i heard Philip Corwin: The purpose of this subgroup is to determine relevant jurisdiction questions related to ICANN's status as a non-profit California corporation, not to debate changing its corporate locus to that of another jurisdiction or to becoming an IGO on the highly questionable assertion that its private status subject to judicial restraint is a violation of human rights. matthew shears: + 1 Phil Jorge Cancio (GAC Switzerland): key is whether accountability works, and works equally for all Paul McGrady: +1 Phil. Greg Shatan: who supports Parminders position vs his participation in this. Parminder: i restated it just as i said - but greg insisted that it is not what i said avri doria: i know my particpation as an individual is becasue it is a global governance and not just becasue it is a us non profit. Parminder: greg, you are creating a controversy from where one does not exist or need not exist - but pl go ahead David McAuley: While I continue to believe the hypothetical will prove unhelpful, I agree w/Phil's point that the language he noted should be stricken if we do use the hypothetical avri doria: how many of us are here because ICANN is a cool Us non profit. Parminder: pl do then do this polling on the email - now I insist that you do it, Jorge Cancio (GAC Switzerland): repeat: key is whether accountability works, and works equally for all; and jurisdictional aspects should not tip the scale unequally for the global community Parminder: there is a human right of self determination Parminder: in UN decl of human rights, and the protocol on civil and pol rights Wale Bakare: Greg, i would suggest put the question to the subgroup mailing list for responses 4. Question for ICANN Legal Greg Shatan: Have edited for form and not substance - comments or concerns vs this version. Jorge Cancio (GAC Switzerland): Does "ICANN" in the question cover the PTI? David McAuley: Thanks for editing Greg, seems fine Parminder: There are 3 types of litigation vs where a company is incorporated, has an office or neither. Also if there is an adverse judgement in a country against ICANN what are ICANN's options would seem a necessary question. Kavouss Arasteh: I do not understand the purpose of this question? Greg Shatan: question is to establish where ICANN can be sued and we essentially have 4, incorporation, hub offices, Engagement offices and none of these. Parminder: i think ICANN can be sued anywhere if the plaintiff can show impact of ICANN's action - or a particualr action, which could be almost everywhere Kavouss Arasteh: If ICANN rejects a contract with a registry in a country non-US - Should the registry take it to a court in Califronia or in another country? Greg Shatan: not the subject of this question. where ICANN and a third party have agreed to a choice of venue then this would be enforceable. Parminder: i think Kavouss case is covered in the question - i see nowhere that the question only refers to law where "choice" is avaiable David McAuley: Agree w/Parminder - isn't the example covered in the question? Parminder: but also the kind of case Kavouss mentions - where is it maintainable, and what would be impact of judgement of a court Kavouss Arasteh: Still valid post-transition? please advise. Greg Shatan: Re JC question - we can address this - as an Affiliate = piercing the corporate veil which would probably fail - but we could ask where PTI can be sued separately - but we should ask ICANN Legal first. Kavouss Arasteh: Parminder, I do not think so. My question is a practical one that some registrar facing with now David McAuley: don't see it as a major point however David McAuley: agree w/Greg, better to ask ICANN Legal Jorge Cancio (GAC Switzerland): @Greg: thx! I guess that would be relevant, as parties may try to challenge delegations by directly suing PTI Paul McGrady: Specifications regarding specific jurisdiction (India for ICANN 55 and things related directly to this) vs general jurisdiction. So need to make these questions more precise. Kavouss Arasteh: Grec, pls kindly retain my question in your future work Greg Shatan: PM good points. Parminder: KA specific example not limited to choice of law or not. Its about wherever ICANN can be sued and as such KA's question is covered. Also agree with PM. Kavouss Arasteh: Parminder, where my case is covered? I do not see that Parminder: ok, i can see greg's point now Parminder: for cases only where parties are bound by prior choice of law David McAuley: Agree with Parminder but disagree with PM on getting more specific. Question as is is a good question. Greg Shatan: I agree that there is a distinction between lack of personal jurisdiction and lack of venue. Kavouss Arasteh: My question is valid and I do not think it is included in this question - but we will need an answer to. Parminder: i would say that a court could still apply personal jurisdiction on a registrant aggrievement case 5. Small Group Review of ICANN’s Past and Current Litigation (not discussed) 6. “Influence of ICANN’s Existing Jurisdiction” document, Section C a. https://docs.google.com/document/d/1_uxN8A5J3iaofnGlr5gYoFVKudgg_DuwDgIuyIC… (not discussed) 7. Timeline (not discussed) 8. AOB (not discussed) 9. Adjourned Documents Presented · Jurisdiction Question to ICANN Legal.pdf<https://community.icann.org/download/attachments/64065610/Jurisdiction%20Qu…> · JurisdictionHypothetical1.pdf<https://community.icann.org/download/attachments/64065610/JurisdictionHypot…>

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Agenda and Materials for Jurisdiction Subgroup Meeting #20, 9 February 13:00 UTC
by Greg Shatan Feb. 9, 2017

Feb. 9, 2017

Please see attached for our upcoming meeting. Greg

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Hypothetical #1 for Review and Discussion by Subgroup
by Greg Shatan Feb. 9, 2017

Feb. 9, 2017

All, At the last meeting of the Jurisdiction Subgroup, we launched into discussion of the first hypothetical proposed in Section C of the "Influence of Jurisdiction" document. As a result of the discussion, suggestions were made of ways to revise the hypothetical. Those are currently marked in the Google doc. Discussion and analysis of the hypothetical was somewhat limited on the call, as many participants did not feel ready to discuss the particular hypothetical. As a result, it was decided to circulate this hypothetical and future hypotheticals (or actual occurrences) well in advance of the meetings. This allows time for consideration, preparation, discussion on the list, etc. The attached PowerPoint contains Hypothetical #1 (revised as discussed). I've also provided a format for our answers, along with some "strawman" answers (most of which already appear in some form in the Google doc). These strawman answers are intended to spur discussion, and should not be taken as final answers; nor should these answers serve to limit discussion. I will put the text into an MS Word doc and a Google Doc soon. Please begin (or continue) your consideration of this hypothetical by replying to this email. Thank you! Greg

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Jurisdiction Hypothetical #1: Google Doc, Word Doc, PDF
by Greg Shatan Feb. 9, 2017

Feb. 9, 2017

All: Jurisdiction Hypothetical #1 is now a Google Doc at https://docs.google.com/document/d/1W3U9-NnmO2Kk3d_qd4ApMcDKf5VcBMf93An6zg2… I have tried to incorporate comments and suggestions made at our last meeting and on our list. Copies of this document in Word and PDF are attached *(please disregard the versions attached with the agenda)*. *Greg Shatan *C: 917-816-6428 S: gsshatan gregshatanipc(a)gmail.com

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WS2 Translation of Jurisdiction Questionnaire
by Karen Mulberry Feb. 9, 2017

Feb. 9, 2017

Attached are the translations of the WS2 Jurisdiction Questionnaire that have just been received. Please advise if these are ready to be posted on the wiki page and the questionnaire announced. Sincerely, Karen Mulberry Director, Multistakeholder Strategy and Strategic Initiatives (MSSI) ICANN 12025 Waterfront Dr., Suite 300 Los Angeles, CA 90094 Phone: +1 424 353 9745

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Questionnaire and Announcement for Translation
by Greg Shatan Feb. 2, 2017

Feb. 2, 2017

Attached is the cover announcement and the Questionnaire for translation and publication. Greg

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