September 2017 - Ws2-jurisdiction

Response Requested: Proposed Changes to OFAC Recommendation
by Greg Shatan Oct. 13, 2017

Oct. 13, 2017

All, Please take a few minutes to *read and respond* to this email, and the *proposed changes* discussed here, so that we can finalize the OFAC Recommendation and send it to the Plenary. There are three remaining proposed changes as far as I can tell. These changes are below. *Please indicate whether you support adding any of proposed changes 1, 2 and/or 3 to the OFAC Recommendation. * To make it easy, please respond along the lines of “I [support/do not support] adding change 1” or “I would support change 1 with the following revisions.” If you think it would help others, please explain your conclusion. In addition to the changes, I have attached two documents: · A draft of the OFAC Recommendation that incorporates the proposed changes suggested by Kavouss. Where unclear, I placed a change where it seemed most likely intended to be. · A document with virtually all of the emails devoted to these proposed changes, arranged chronologically by topic. *The proposed changes suggested by Kavouss are as follows:* 1. The first proposed change appears intended to be added to the Issue and Recommendation “Application of OFAC Limitations by Non-US Registrars.” The first part reads: *There are several reports in the media that US-Based and Non-US registrars have asked registrants to transfer out their domains immediately because they might get affected by US sanctions.* *Examples of that are related to Godaddy*[1]* and Online Nic,*[2]* which made pressure against registrants having citizenship of Sanction countries.* Kavouss asked that the second part be inserted into the corresponding Recommendation: Registrars should be reminded that they should not normally examine zero risk policy in regard of penalties imposed by OFAC. 2. The second proposed change relates to an action taken by Resello, a Dutch registrar. It’s also unclear where this would go (it does not seem to fit in the section “Application of OFAC Limitations by Non-US Registrars.”) Perhaps it would go into a new section, possibly entitled “Policy of not Doing Business with Iranian Customers/Resellers (Unconnected to OFAC/Sanctions) by a Non-US Registrar”: *An individual domain Name Iranian National reseller residing outside Iran sent a request to <sales(a)resello.com <sales(a)resello.com>> in an online form, asking to become reseller of Domain Name in Iran (to sell domains to Iranian people).* *He received the following reply:* *Quote* *“On Tue, Sep 19, 2017 at 9:48 PM, Resello Sales <sales(a)resello.com <sales(a)resello.com>> wrote:* *Dear reseller (XXX)* *Unfortunately our policy restricts doing business with Iranian customers/resellers, even if they aren't living in Iran, but have an Iranian passport.* *Kind regards,* *Mark Assenberg”* *It is worth mentioning that Resello is a subsidiary company for following holding:* *Yourholding* *Ceintuurbaan 28* *8024 AA Zwolle* *+31 38 453 0752* *The name is Yourholding and they are based in Netherlands. So they are not US-Based company.* *They do not want to explain why they don't want to provide service to Iranian. They say, they is our internal policy decision.* *It is important to make it clear that none of Registrars and service providers which are not US Nationals or not based in USA cannot make internal policies to avoid giving services to a given citizens. This is a global business not a personal decision of a company or its managers. They must fully observe the expected behaviour and responses.* *It is important to emphasize that non-US based companies should not to replicate the rules inside USA.* *[Recommendation]* *The group in attempting to address the case mentioned above thought that the above situation might have been arised as result of misinterpretation of applicability of OFAC Regulation to the case.* *The Group concluded that there was no relation between the case and OFAC Regulation and its applicability.* *The Group also did not find any provision in RAA to obligate the Resello to get into a business with the domain name reseller to provide the requested domain name did not find also any provision in the RAA to allow the registrar to reject / deny the request.[3] The group therefore considered / recommends that there is a need that ICANN further examine the matter with a view to address the silent point in the RAA.* 3. The third suggested change is intended to change the Recommendation relating to General Licenses. After Kavouss suggested several changes (including the language in blue), I added the red language to reflect Kavouss’s changes in a way that seemed to read better in the text. After the red language was added, Kavouss continued to request that the language in blue be added as well. ICANN should then pursue one or more OFAC general licenses at the earliest possible time, unless significant obstacles were discovered in the “study” process. If there are significant obstacles, ICANN should report them to the [empowered] community and seek its advice on how to proceed. If unsuccessful, ICANN would need to find other ways to accomplish the ultimate goal -- enabling transactions between ICANN and residents of sanctioned countries to be consummated with a minimum of “friction.” It is critical that ICANN communicate regularly about progress toward securing general licenses, in order to raise awareness in the ICANN community and with affected parties. * The role of ICANN, to make awareness about such situation is critical and should not be undermined.* Finally, there have been a number of questions asked about each of these suggested changes, which have largely gone unanswered. I’ve rephrased and listed them here, since it could be helpful for the Subgroup to consider them (or see if any members might answer them). (I am not suggesting these questions need to be answered to evaluate the proposed changes.) *On suggested change 1*: 1. Do you have the “reports in the media” referred to in the proposed change? a. If the Subgroup has not seen the reports in the media, can the Subgroup Report refer to them, or the activities reported in them? b. For US registrars, considering that they have to comply with OFAC, is this an issue for this Subgroup? c. For non-US registrars, why isn’t the current text of this section of the OFAC Recommendation sufficient? (It discusses possible mistaken application of OFAC sanctions by non-US registrars because they think contracting with ICANN imposes OFAC compliance obligations on them)*.* 2. Since GoDaddy and OnlineNIC are both US-based registrars, does it make sense to refer to them?who are required to comply with OFAC sanctions. a. Do you know what “made pressure against” refers to? b. Are there any example of this “pressure”? With non-US registrars? 3. What does it mean to say “Registrars should be reminded that they should not normally examine zero risk policy in regard of penalties imposed by OFAC”? a. If this refers to the exercise of business or legal judgment of registrars, do you believe it is appropriate for the Subgroup Report to comment on this? b. What proposed issue does this Recommendation resolve/remediate? *On suggested change 2*: 1. Is this an example of a non-US Registrar complying with OFAC sanctions? Where is the connection to OFAC? 2. What section of the RAA is being violated by this business decision (i.e., a registrar deciding not to do business with citizens of a given country (whether it is Canada, Haiti, Iran or otherwise))? 3. If Resello's business decision does not seem to be related to OFAC, US jurisdiction or to any ICANN-related jurisdiction, does the Subgroup approve this as an “Issue” or our group to make a Recommendation on? If so, what recommendation? 4. Is this possibly an EU sanctions issue (the registrar is Dutch) 5. If this is possibly an EU sanctions issue, should we get into interpreting EU sanctions? 6. Why is the current language of the Recommendation insufficient? It reads: a. "ICANN needs to bring awareness of these issues to registrars. ICANN should clarify to registrars that the mere existence of their RAA with ICANN does not cause them to be required to comply with OFAC sanctions. ICANN should also explore various tools to remind registrars to understand the applicable laws under which they operate and to accurately reflect those laws in their customer relationships." 7. What connection does this have to OFAC sanctions or to ICANN's "jurisdiction" -- in the US or elsewhere? *On suggested change3:* 1. Why is the language already added to the text (in red) insufficient? 2. What situation does “make awareness about such situation” refer to? 3. Is there a concern that something will be “undermined”? What does this refer to? ------------------------------ [1] NOTE TO SUBGROUP: GoDaddy is a U.S.-based registrar incorporated in Delaware as GoDaddy, LLC and headquartered in Scottsdale, Arizona. [2] NOTE TO SUBGROUP: OnlineNIC is a U.S.-based registrar incorporated in California as OnlineNIC, Inc. and headquartered in San Leandro, California. [3] Resello’s “General Terms and Conditions,” for resellers state in Article 1.1 that “acceptance by Resello … may be refused without reason.” https://www.resello.com/agreement

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ISSUE - absence of choice of law clause in registry agreements
by Raphaël BEAUREGARD-LACROIX Oct. 4, 2017

Oct. 4, 2017

Dear all, I would like to officially submit this issue to the attention of our subgroup. I attach here -the case in which I raised this as an issue -the question we formulated to ICANN legal -the response we got from ICANN legal. -the follow up -the response to the follow up I can also refer you all to an email from Bernie dated 26 July which contains links to these. and for reference purposes -The standard registry agreement (RA) I did not find ICANN legal's answer to be fully satisfying, especially regarding registries, and I would thus like this issue to be included in the final report, with a solution that we will hopefully all agree to! Because of the nature of the dispute resolution clause in RAA's concluded with registrars, I think they should be treated as a separate issue, if at all. At any rate, this submission is already long enough as it is! *Issue* ICANN's standardised contracts with registries do not include a choice of law provisions and are subject to dispute resolution by arbitration under ICC rules. See RA, art. 5.2 As for RAA's concluded with registrars, they can be litigated in court or in arbitration under American Arbitration Association rules. For the simple reason that they can be litigated in court, this makes this issue less of an issue for them. For RA litigation, the above clause means that in effect, the arbitrators are free to decide the applicable law according to various factors or methods generally accepted in private international law practice. See ICC Rules of Arbitration art. 21: *1)* *The parties shall be free to agree upon the rules of law to be applied by the arbitral tribunal to the merits of the dispute. In the absence of any such agreement, the arbitral tribunal shall apply the rules of law which it determines to be appropriate.* *2)* *The arbitral tribunal shall take account of the provisions of the contract, if any, between the parties and of any relevant trade usages.* This also means that we cannot rely on Californian private international law to predict which law is applicable. Moreover, as far as my understanding of commercial arbitration goes, arbitrators would always decide on a single law for the whole of the contract and will not start carving up legal niches here and there. Reasonably, there are two options as for the applicable law to these contracts: California law, or the law applicable to the registry, whether it be the law of its main place of business or its own company law. I would like to quote here ICANN legal's answer to our follow-up: *"Historically, not having a choice of law clause seems to have worked out well in practice. * *The lack of a choice of law clause, as far as ICANN is aware, has not presented big **problems for either ICANN or contracted parties. * *The plain language of the agreement has generally been sufficient to resolve questions between the parties and allow the parties **to interpret the performance requirements, their rights and obligations in the ordinary course.* *Reliance on the plain language of the agreements normally does not depend on a choice of which jurisdiction’s laws would apply. * *As to why the contracts have evolved in this manner, it has essentially been a compromise that allows the choice of law issue to be handled on an issue-specific basis that takes into account the specific conduct being reviewed, the needs **of the parties and ICANN’s global coordination function"* I fail to see how the RA would satisfy registries outside of the US. Would not they prefer to have a set choice of law rather than an undefined one? And not there being a problem does not mean it cannot be improved. Registries can very well refuse to litigate because of the costs, and this will look like an absence of problem from ICANN's perspective. Moreover, I plainly reject the contention that *"The plain language of the agreement *(allows)* the parties to interpret the performance requirements, their rights and obligations in the ordinary course."* The only time this can be true is between US parties. This is just wrong for parties outside the US. We can all see that these contracts are drafted with US law in mind. I do not even want to imagine what kind of mess would result of trying to fit this contract into any continental European legal system! Or any other legal system for that matter. And even more so if you try to divide obligations between the parties and ascribe them a different governing law... The issue I see with this is that this situation 1) is detrimental to ICANN's accountability and 2) results in more costs for registries in case of dispute. As for 1), I believe it is detrimental because being accountable is also being predictable. ICANN has the means to figure out these legal questions well in advance and do a proper risk assessment, while registries and registrars (especially considering the small players) might not. As for 2), an undetermined choice of law means you need to hire a lawyer (and not just your ordinary lawyer, a specialised one) to do first and foremost an assessment of which law would be applicable and which is most likely to be applied by the arbitrator(s). This means more money (maybe too much money) gone into legal fees for the small businesses. *Solution* Set the choice of law in those contracts. Given their drafting style, California would make most sense. Now to jump the gun on some criticism that I can see coming, I do believe that most if not all lawyers who can handle domain name industry/ICANN disputes do know California law anyway. This is for the sake of predictability, not for the sake of favouring the US above anyone else. I went well beyond the "12 standard lines" rule, but I do hope I made it clear and understandable. Best,

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Re: [Ws2-jurisdiction] [EXTERNAL] issues on applicable law
by Burr, Becky Oct. 3, 2017

Oct. 3, 2017

FWIW, punitive damages are not usually permitted in contract disputes – I wonder why ICANN includes them at all. Also, rather than requiring ICANN to agree to submit to the jurisdiction of every country where it has a relationship with a registry or registrar, is it worth considering regional jurisdiction? Contracts with European registries and registrars could specify Swiss or Dutch or some other law, etc.? J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW DC 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 Follow Neustar: LinkedIn / Twitter Reduce your environmental footprint. Print only if necessary. ________________________________ The information contained in this email message is intended only for the use of the recipient(s) named above and may contain confidential and/or privileged information. If you are not the intended recipient you have received this email message in error and any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately and delete the original message. From: <ws2-jurisdiction-bounces(a)icann.org<mailto:ws2-jurisdiction-bounces@icann.org>> on behalf of "Jorge.Cancio(a)bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>" <Jorge.Cancio(a)bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> Date: Wednesday, September 6, 2017 at 4:19 PM To: "ws2-jurisdiction(a)icann.org<mailto:ws2-jurisdiction@icann.org>" <ws2-jurisdiction(a)icann.org<mailto:ws2-jurisdiction@icann.org>> Subject: [EXTERNAL] [Ws2-jurisdiction] issues on applicable law Dear all, Here are, for your convenience, the two issues I have tried to briefly explain during today’s conference call, for your consideration. As said, the main thought is to reduce uncertainty, and clarify that the parties to the registry agreements have an effective freedom to choose the applicable law and to apply a principle of subsidiarity that may reduce potential conflicts with the national laws where they are based. == 1. Issue: The law applicable to the Registry Agreement has been identified as being the main issue: The Registry Agreement contains no provision relative to the choice of jurisdiction, the applicable law consequently not being defined by the Agreement. This creates great legal uncertainty and a potential issue as regards the jurisdiction given that it would be the prerogative of the arbitrators or the judges having jurisdiction -who could come from a US Court- to determine what law governs the relationship between ICANN and the registry. Pursuant to the current business practice, the applicable law is that of the party that provides the service in question, i.e. ICANN, a priori. A registry should therefore expect the potentially applicable law to be the law of the State of California. The applicable law further determines the faculty of ICANN to claim punitive or exemplary damages (i.e. under US law, damages highly surpassing the damage actually suffered, in order to punish a behavior), in the event the registry were to breach the contract in a deliberate and repeated manner (section 5.2 of the Registry Agreement.) This well-established institution of Common Law is non-existent under Swiss law, which follows the principle of compensation (damages are used to repair the damage but cannot enrich the claimant,) and should be considered to be contrary to public order. Were the Swiss law to apply to the Agreement, such damages would not be granted. Following the principles of the institutions typical to the Common Law provided for in the Registry Agreement poses issues of compatibility with other legal orders and suggests that Californian law would -a priori- apply to the Registry Agreement. Possible solutions: The applicable law should be determined on the basis of the legitimate expectations which the parties may have in terms of applicable law. It is understandable and appropriate that the fundamental provisions or duties contained in the Registry Agreement should apply equally to all registries around the world and be therefore interpreted in a uniform way. Beyond a few provisions and duties which are absolutely fundamental, it would be judicious and consistent with a legitimate expectation that the contractual relationship between ICANN and a registry be subject to the national law of the latter. The foregoing is all the more reasonable given that the manager of a generic domain (TLD) is delegated broad powers, as it is within its scope to establish the purpose of the domain, the eligibility, or the terms of the assignment of domain names, not to mention that it has great freedom as to the way in which a domain is actually managed. There already exist special provisions for registries that are IGO/Governmental entities (section 7.16 registry agreement): if international law is at stake, there is a procedure (mediation and arbitration ex 5.2.) to resolve disputes between the registry and ICANN – this special provision could be extended: - To other registries that are not IGOs/Public authorities - To cover not only “international law obligations” but also national law obligations 2. Issue: arbitration clause With regard to territorial jurisdiction, the arbitration clause (section 5.2 of the Registry Agreement entitled "Arbitration text for intergovernmental organizations or governmental entities") has allowed the ".swiss" registry to submit itself to the arbitration of the International Court of Arbitration of the International Chamber of Commerce in Geneva, Switzerland. This provision also provides for some flexibilities restricted to IGOs or governmental entities as regards the competent court. However these flexibilities are not open to all registry operators. Possible solutions: It would be wise in our opinion: - to also allow private registries to decide on the choice of their arbitration/competent court; - to broaden the possibilities of choice for all registries (by principle, to choose an arbitration recognized in each country.) == Hope this may be considered. Regards Jorge Jorge Cancio International Relations Federal Department of the Environment, Transport, Energy and Communications DETEC Federal Office of Communications OFCOM Zukunftstrasse 44, CH 2501 Biel Tel. +41 58 460 54 58 (direct) Tel. +41 32 327 55 11 (office) Fax +41 58 460 54 66 mailto: jorge.cancio(a)bakom.admin.ch<mailto:mailto:%20jorge.cancio@bakom.admin.ch> www.bakom.admin.ch<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.bakom.admin.ch_&d=D…> [cid:image001.png@01D2F585.7A604270] Igf2017.swiss<https://urldefense.proofpoint.com/v2/url?u=https-3A__igf2017.swiss_&d=DwMFA…> info(a)igf2017.swiss<mailto:info@igf2017.swiss>

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Re: [Ws2-jurisdiction] Updated "Applicable Law and Choice of Venue Provisions" Recommendation
by Jorge.Cancio＠bakom.admin.ch Sept. 29, 2017

Sept. 29, 2017

Dear Greg, I feel my suggestions speak for themselves and I'm happy to explain to members of the group who might have concerns - fact is that no one had voiced such in more than a week and that it is only you interrogating on them. But it is not your role to drive the debate in one specific direction when it is open and ongoing. and again, the facts are that there was an open document, where all Subgroup members could suggest edits. Raphaël and I did so. I saw Raphaëls text and he saw mine – and did not object to the way I saw things. Nobody else did comment or object to my suggested wording. Moreover, the “menu” approach had been supported on list, with different nuances, on list by various other subgroup participants. Fact is that immediately before circulating the doc you made your personal changes, taking a specific view not supported by anyone else in the document comments, and after making those changes you immediately sent out the text with your revised text – hence not giving any chance to react to your “reverting” or “putting back”. These actions would be considered as profoundly contrary to a Rapporteur neutrality in many other fore, where the Rapporteur has to remain neutral, not take sides and help bridge differences. best Jorge ________________________________ Von: Greg Shatan <gregshatanipc(a)gmail.com> Datum: 27. September 2017 um 19:19:56 MESZ An: Cancio Jorge BAKOM <Jorge.Cancio(a)bakom.admin.ch> Cc: ws2-jurisdiction <ws2-jurisdiction(a)icann.org> Betreff: Re: [Ws2-jurisdiction] Updated "Applicable Law and Choice of Venue Provisions" Recommendation Jorge, Once again, you puzzle me. I believe that I am being both neutral and transparent (everything is happening on the list and in the documents, so I have no idea what is not "transparent"). Clearly, your draft changes were merely suggestions, and my discussion of it was in that context. I'm sorry that was not apparent to you. Nonetheless, I'm sure it would help the Subgroup understand your suggestions if you would explain how your suggested text maintains the option of a fixed choice of California/US law. The reasons that is not clear are in my prior email. I'm hoping that it is not difficult to answer, and will aid the group in considering your suggestions. Just to be clear, based on my understanding and experience with Chairs/rapporteurs, it is very much part of the role to ask follow-up questions to draw out details, eliminate ambiguity, and resolve potential areas of concern. I'm sorry you believe that makes no sense. Hopefully you will reconsider. In any event, I would appreciate your assisting the Subgroup by clarifying the ambiguities I have asked about. Detailed discussions of process while not discussing substance will not get the Subgroup where it needs to go. Best regards, Greg On Wed, Sep 27, 2017 at 12:51 PM, <Jorge.Cancio(a)bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> wrote: Dear Greg, I feel that this questioning and interrogatory modus regarding my suggestions in an open and ongoing doc makes no sense. You said I had "eliminated" something - that is not only absurd (I was suggesting) but inaccurate (I suggested that a free standing option is a possible outcome). Please just refrain to making such interventions in an open and ongoing process. That is not the role of the Rapporteur. It is not neutral and lacks transparency. best Jorge ________________________________ Von: Greg Shatan <gregshatanipc(a)gmail.com<mailto:gregshatanipc@gmail.com>> Datum: 27. September 2017 um 18:38:03 MESZ An: Cancio Jorge BAKOM <Jorge.Cancio(a)bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> Cc: ws2-jurisdiction <ws2-jurisdiction(a)icann.org<mailto:ws2-jurisdiction@icann.org>> Betreff: Re: [Ws2-jurisdiction] Updated "Applicable Law and Choice of Venue Provisions" Recommendation Jorge, Perhaps I did not understand one thing about your draft. You say that the "California" option is not foreclosed, and that it is a potential outcome of the Menu approach. As I understand it, the Menu approach allows each registry to choose (or perhaps, to negotiate for) one out of a defined list of jurisdictions (e.g., one from each ICANN Geographic Region). The "California" approach fixes California/US law as the sole choice of law for all registry agreements. I don't see how the California approach can be a possible outcome of the Menu approach. Do you mean that it is technically possible that every registry will choose California law from the Menu as their individual outcome? Even if that is the outcome (and the chances of that are vanishingly small), that is still an outcome and not the "California" option, which is distinguished by a fixed choice of law. Please help me and the Subgroup understand better. Thank you, Greg On Wed, Sep 27, 2017 at 11:47 AM, <Jorge.Cancio(a)bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch><mailto:Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>> wrote: Dear Greg, I feel we have different views of what the rapporteur role is. The facts are that there was an open document, where all Subgroup members could suggest edits. Raphaël and I did so. I saw Raphaëls text and he saw mine – and did not object to the way I saw things. Nobody else did comment or object to my suggested wording. Moreover, the “menu” approach had been supported on list, with different nuances, on list by various other subgroup participants. You made changes, taking a specific view not supported by anyone else in the document comments, and after making those changes you immediately sent out the text with your revised text – hence not giving any chance to react to your “reverting” or “putting back”. I find that irregular and improper to the role of the Rapporteur. And it is quite puzzling that you pretend that with my “suggestions” I was closing any debate – I was just proposing wording, which as I said was not objected nor commented by anyone during more than one week. Btw: I have never taken out the Californian option – I presented it as a potential outcome of the overall Menu approach. See attached the word document I saved in my PC after making my suggestions to the Google Doc on September 19. Best Jorge Von: Greg Shatan [mailto:gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com><mailto:gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>] Gesendet: Mittwoch, 27. September 2017 17:36 An: Cancio Jorge BAKOM <Jorge.Cancio(a)bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch><mailto:Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>> Cc: ws2-jurisdiction <ws2-jurisdiction(a)icann.org<mailto:ws2-jurisdiction@icann.org><mailto:ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>>> Betreff: Re: [Ws2-jurisdiction] Updated "Applicable Law and Choice of Venue Provisions" Recommendation Jorge, These changes were made in my role as rapporteur. A key aspect of the rapporteur role is helping the group find outcomes the group broadly supports. Part of this is avoiding a push to define "common ground" prematurely. In my view as rapporteur, the group is not yet at the point where a "common ground" can be declared, and other options eliminated. You will see that today's agenda includes a discussion of the various options. I am as eager as you are to find common ground, and I thank you for offering your assistance in identifying what you believe to be common ground. However, I believe that it's premature to identify a result at this time. Thus, I edited the text to keep our options open. (I don't believe it's accurate to say I "reverted" the text, since all your suggestions are still in the document, and only a few changes were made by me, to reflect where we stand in our process.) This in no way prevents the group from considering whether the "Menu" option is one where the Subgroup can find common ground. It merely reflects that we have not already done so. I'm a little puzzled also by your statement that I am "intervening in an open discussion within the group taking very specific positions, instead of letting the debate go forward and helping it reaching consensus when needed." The changes I made were to back the document away from the very specific positions you inserted, in order to keep the debate and discussion open. I'm sorry that was not clear to you. In the end, this text needs to be revised to identify a result and a recommendation, unless there is a divergence of opinion (and thus no common ground, although this itself would be a "result"). We can also discuss whether to identify the options we did not adopt and the reasons for doing so, or to take your approach and eliminate them from the document (as you did with the "California" option). I hope we can move through this rapidly, while avoiding hasty conclusions, and arrive at a document that reflects a finding of common ground in the group. I hope this clarifies matters. Best regards, Greg On Wed, Sep 27, 2017 at 1:49 AM, <Jorge.Cancio(a)bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch><mailto:Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>> wrote: Dear Greg, In the pdf this is not clear. Are these changes made in your capacity as rapporteur? or are they personal contributions? I guess they are the latter. In such case this should be made clear in order to avoid any misunderstandings. I note for the record that I find troublesome that (without making that clear) you are once again intervening in an open discussion within the group taking very specific positions, instead of letting the debate go forward and helping it reaching consensus when needed. I cannot speak for Raphaêl of course, bit I wonder why you "revert" to his initial text, which I had suggested to amend aiming at a "common ground" I saw emerging, when Raphaël himself had not done so or had not objected to my suggestions. Hence, I would like to see the document distributed without your changes or if you insist to circulate the version you have changed that you clearly identify your edits as your personal opinion. best Jorge ________________________________ Von: Greg Shatan <gregshatanipc(a)gmail.com<mailto:gregshatanipc@gmail.com><mailto:gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>> Datum: 27. September 2017 um 07:40:41 MESZ An: Cancio Jorge BAKOM <Jorge.Cancio(a)bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch><mailto:Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>> Cc: ws2-jurisdiction <ws2-jurisdiction(a)icann.org<mailto:ws2-jurisdiction@icann.org><mailto:ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>>> Betreff: Re: [Ws2-jurisdiction] Updated "Applicable Law and Choice of Venue Provisions" Recommendation Jorge, Yes. This is reflected in the Google Doc, and if you mouse over the changes in Word. Greg On Wed, Sep 27, 2017 at 1:39 AM, <Jorge.Cancio(a)bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch><mailto:Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>><mailto:Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch><mailto:Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>>> wrote: Dear Greg, The changes in "red ink" are from you? Thanks for clarifying. regards Jorge ________________________________ Von: Greg Shatan <gregshatanipc(a)gmail.com<mailto:gregshatanipc@gmail.com><mailto:gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>><mailto:gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com><mailto:gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>>> Datum: 27. September 2017 um 07:33:38 MESZ An: ws2-jurisdiction <ws2-jurisdiction(a)icann.org<mailto:ws2-jurisdiction@icann.org><mailto:ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>><mailto:ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org><mailto:ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>>>> Betreff: [Ws2-jurisdiction] Updated "Applicable Law and Choice of Venue Provisions" Recommendation All, Attached is an updated version of this recommendation in Word and PDF formats, found athttps://docs.google.com/document/d/1xAyla8FTaL7jZ0D2rYtAzQUr3gEnirTKiAG-k… (please make all changes in SUGGEST mode). Please review and be prepared to discuss. Thank you. Greg

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Recordings, DAIRs, Raw Caption Notes for Jurisdiction Subgroup Meeting #48 | 27 September 2017
by MSSI Secretariat Sept. 27, 2017

Sept. 27, 2017

Hello all, You may find the recordings, Decisions, Action Items, Requests (DAIRs), and raw caption notes for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #48 – 27 September 2017 posted at https://community.icann.org/x/hyUhB. The transcript will be posted on when it becomes available (usually in 3 to 5 business days after the call). A copy of the DAIRs and raw caption notes may be found below. Thank you. With kind regards, Brenda Brewer, Projects & Operations Assistant Multistakeholder Strategy & Strategic Initiatives (MSSI) Internet Corporation for Assigned Names and Numbers (ICANN) [cid:image001.png@01D337C2.8C7C5D20] Action Items: * GS to send the latest version of the OFAC recommendation to the list to see if there are significant objections to this version. Raw Captioning Notes Disclaimer: This rough edit transcript, which may contain missing, misspelled or paraphrased words, is only provided for your immediate review and is not certified as verbatim and is not to be cited in any way. * Word Doc<https://community.icann.org/download/attachments/69281159/CCWG-Accountabili…> * PDF<https://community.icann.org/download/attachments/69281159/CCWG-Accountabili…> Decisions: * OFAC recommendation – not accept changes proposed by KA Requests: * Participants contribute to the Choice of Law document.

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Re: [Ws2-jurisdiction] WS2_Jurisdiction_Applicable Law and Choice of Venue_Draft Recommendation
by Greg Shatan Sept. 27, 2017

Sept. 27, 2017

Kavouss, All of your suggested changes (sent to me 12:08 EDT after an earlier version was sent at 5:22 am EDT) were added to the Google Doc, and then reflected in the Word and PDF documents, and circulated at 1:42 pm EDT. You caught one mistake (resulting from the process of transferring Google Docs to Word) and notified me, reattaching your v2, which I corrected and then recirculated at 2:12 pm. You now write to me at 2:26 pm and seem to imply that I have somehow ignored a document that was "sent three times" by you. On this particular email, you have also included a number of "cc's" from the GAC who do not participate in this Working Group. This could create the impression that I am ignoring your contributions in spite of you sending them repeatedly to me. As the above timeline indicates, nothing could be further from the truth. Indeed I have responded to your emails before even responding to my clients. I am sure it was not your intent to create a perception that your work is being marginalized or ignored, so I am responding here to make sure that a mistaken view of the workings of this group is not taken away by those glimpsing it on copy. I look forward to our upcoming call. Best regards, Greg On Mon, Sep 18, 2017 at 2:26 PM, Kavouss Arasteh <kavouss.arasteh(a)gmail.com> wrote: > Dear Greg, I have sent you an edited file as attached and sent three > times.- > This needs to be discussed -Regards > Kavouss > > On Mon, Sep 18, 2017 at 8:17 PM, Greg Shatan <gregshatanipc(a)gmail.com> > wrote: > >> All, >> >> Here are Word and PDF copies of the first draft recommendation created by >> Raphael. This will be discussed on our call. >> >> >> Greg >> >> _______________________________________________ >> Ws2-jurisdiction mailing list >> Ws2-jurisdiction(a)icann.org >> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction >> >> >

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WS2_Jurisdiction_Applicable Law and Choice of Venue_Draft Recommendation
by Greg Shatan Sept. 27, 2017

Sept. 27, 2017

All, Here are Word and PDF copies of the first draft recommendation created by Raphael. This will be discussed on our call. Greg

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OFAC Recommendation
by Greg Shatan Sept. 27, 2017

Sept. 27, 2017

Here is the version with Kavouss's suggested changes. Greg

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Agenda
by Greg Shatan Sept. 27, 2017

Sept. 27, 2017

All, I have attached the agenda for the upcoming meeting. Greg

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Re: [Ws2-jurisdiction] Complaint
by Kavouss Arasteh Sept. 27, 2017

Sept. 27, 2017

Dear Co-Chairs Mr. Milton Muller should formally appologize for his inappropriate statement as Highlighted in Red. Regarding other parts of his statement I have no comments as everyone is free to express his or her views This formal appology is required before this eveing meeting Kavouss On Wed, Sep 27, 2017 at 8:21 AM, Kavouss Arasteh <kavouss.arasteh(a)gmail.com> wrote: > Dear Co-Chair > I request you to study the statement and allegation made against me by Mr. > Muller as indicated in colour > Tks > See Below > Greg and all members of the subgroup. > > *I support the draft with your edits in red, which are intended to > accommodate the concerns of Arasteh Kavouss.* > > *I oppose ALL the proposed additional text suggested by Kavouss (in light > blue). That text adds nothing substantive to the recommendations and #2 in > particular recounts a specific incident in needless detail that is not > relevant to the section it is placed in. * > > > > *I would remind us of the definition of rough consensus; it is clear that > Kavouss’s changes have been proposed numerous times, we understand his > reasoning, and yet they command _no support_ from anyone else. Therefore > they can be left out of the report and we should proceed. * > > > > *I would remind Mr. Kavouss that his repetitive and dilatory insistence on > these changes is actually undermining our attempt to make progress on OFAC > sanctions and are against the interests of people in his own country. * >

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