September 2017 - Ws2-jurisdiction

issues on applicable law
by Jorge.Cancio＠bakom.admin.ch Sept. 12, 2017

Sept. 12, 2017

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<http://www.bakom.admin.ch/> [cid:image001.png@01D2F585.7A604270] Igf2017.swiss<https://igf2017.swiss/> info(a)igf2017.swiss<mailto:info@igf2017.swiss>

2 2

ISSUE: Positive Effect of CA Law on ICANN Operation and Accountability Mechanisms since Transition
by Brian Scarpelli Sept. 10, 2017

Sept. 10, 2017

(with apologies for sending this to an incorrect email the first time just before the deadline of 12p UTC) WS2 Jurisdiction Subgroup colleagues - my issue contribution is below. I have also entered this into the WS2 Jurisdiction issue spreadsheet (https://docs.google.com/spreadsheets/d/1zAMj3Oz8TEqbjauOyqt09Ef-1ada9TrC7i6…) Best regards, Brian Scarpelli Senior Policy Counsel 517-507-1446<tel:517-507-1446> | bscarpelli(a)actonline.org<mailto:bscarpelli@actonline.org> ACT | The App Association ________________________________ TITLE: Positive effect of California not-for-profit incorporation and headquarters location on ICANN accountability mechanisms and operations. ISSUE: It is within the remit of Work Stream 2's Jurisdiction Subgroup to build on Work Stream 1, to consider the effect of ICANN's current jurisdictional set-up (in particular, California not-for-profit law) on ICANN operation and accountability mechanisms and to find ways to enhance ICANN's accountability to the multistakeholder community. Work Stream 2's Jurisdiction Subgroup has discussed of a wide range of issues (some within the remit of the Subgroup, and others outside), and a number of subgroup members have brought forward scenarios in which jurisdiction(s) may affect ICANN, both positively and negatively. This discussion has been fruitful not only in exploring edge use cases, but more importantly in addressing whether and how the existing legal status of ICANN as a California nonprofit public benefit corporation assists ICANN in operating in an accountable manner. The mechanisms developed in Work Stream 1 are based on ICANN's status as nonprofit public benefit corporation incorporated in California and subject to US and California state laws. These mechanisms take advantage of specific features of California law, such as the Sole Designator concept. Work Stream 1 also recognized that a key existing accountability mechanism was the fact that ICANN is subject to U.S. federal and laws and state and federal court jurisdiction. Furthermore, ICANN is set up as and operates in the manner of a California non-profit and has done so for nearly 20 years. In the absence of NTIA's stewardship role over the management of the DNS, maintaining these new and existing accountability mechanisms, and ICANN's stability, is of paramount importance. Changing ICANN's jurisdiction would undermine these new and existing accountability mechanisms, the ability of ICANN to operate in an accountable manner, and ultimately ICANN's stability. Even the ongoing debate over ICANN's headquarters location and place of incorporation has the effect of bringing ICANN's accountability mechanisms into question. At the very least, this debate has the effect of using up significant multistakeholder resources better applied to refining the work of Work Stream and ICANN's overall accountability. PROPOSED SOLUTION: The Jurisdiction Subgroup should explicitly affirm in its recommendations that: * ICANN's current jurisdiction (i.e., California as the state of incorporation and headquarters location) is a critical and integral part of ICANN's system of accountability and its operations. * Subjecting ICANN to the laws of and jurisdiction of courts in the United States and elsewhere (including but not limited those jurisdictions where ICANN has operations) are fundamental and very important accountability mechanisms, which allow third parties to hold ICANN accountable and ensure that ICANN abides by the rule of law. * The accountability mechanisms of Work Stream 1 use and depend on maintaining ICANN as a corporation headquartered and incorporated in California. * Therefore, modifications to the core jurisdictional concepts of ICANN would be detrimental to ICANN's accountability. In particular, the CCWG's work in Work Stream requires Work Stream 2 to maintain the current jurisdictional concepts so that the new mechanisms can be fully implemented and operate unhindered for a substantial period of time. As such, Work Stream 2 should confirm and ratify that the current jurisdictional make-up of ICANN is a fundamental part of ICANN's accountability mechanisms.

8 13

Recordings, DAIRs, Raw Caption Notes for Jurisdiction Subgroup Meeting #45 | 6 September 2017
by MSSI Secretariat Sept. 6, 2017

Sept. 6, 2017

Hello all, You may find the recordings, Decisions, Action Items, Requests (DAIRs), and raw caption notes for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #45 – 6 September 2017 posted at https://community.icann.org/x/diUhB. 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@01D32735.BBE71570] Action Items: * GS to amend draft OFAC recommendation per discussions. 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/69281142/CCWG-Accountabili…> * PDF<https://community.icann.org/download/attachments/69281142/CCWG-Accountabili…> Decisions: * (none) Requests: * Participants comment OFAC recommendation and review issues list. Documents Presented * OFAC Recommendation First Draft 09062017<https://community.icann.org/download/attachments/69281142/OFAC%20Recommenda…>

1 0

CCWG-Accountability-WS2-Jurisdiction Recap of ICANN Legal Responses to Jurisdiction sub-group questions
by Bernard Turcotte Sept. 6, 2017

Sept. 6, 2017

All, The initial responses by ICANN Legal can be found at: https://community.icann.org/display/WEIA/Jurisdiction?preview=/59643282/640… and the answers to the additional questions (including those on choice of law for the registry and registrar agreements) can be found at: https://community.icann.org/display/WEIA/Jurisdiction?preview=/59643282/649… As usual all this information is available at all times on the WS2-Jurisdiction Wiki at: https://community.icann.org/display/WEIA/Jurisdiction Cheers. Bernard Turcotte ICANN Staff Support to the CCWG-Accountability-WS2

1 0

Raphael's email with Issue on Choice of Law in Registry Agreements
by Greg Shatan Sept. 6, 2017

Sept. 6, 2017

All, I've put Raphael's email in these documents to cover part of our Choice of Law in contracts discussion today. Greg

1 0

Current Draft of OFAC Recommendation
by Greg Shatan Sept. 6, 2017

Sept. 6, 2017

All, I've just downloaded the draft of the OFAC Recommendation as it currently stands. It is attached in Word and PDF versions. The Master List will follow. Greg

2 1

Current Draft of Master List of Proposed Issues
by Greg Shatan Sept. 6, 2017

Sept. 6, 2017

All, Here is the current version of the Google Doc Master List of Proposed Issues. Greg

1 0

Agenda for Upcoming Jurisdiction Subgroup Meeting 1900 UTC 6 September 2017
by Greg Shatan Sept. 6, 2017

Sept. 6, 2017

All, The agenda for our upcoming meeting is attached. We will be reviewing the documents at the links below, which will be circulated in Word and PDF versions closer to the time of the meeting. This will allow the group some more time to work on the OFAC Recommendation in particular. We will also be discussing the following set of proposed issues (as listed in the Master List): Provisions relating to choice of law in certain ICANN Agreements - Registry Agreements do not have a provision stating the governing law of the agreement - Registrar Agreements do not have a provision stating the governing law of the agreement - Arbitration of Registry Agreement: Lack of choice in arbitral body and jurisdiction of arbitration - Lack of governing law provisions could lead to courts more likely choosing their own law as governing law - Provisions regarding the venue for hearing disputes in registry agreements are limited to one specific venue, with flexibility allowed only in contracts with Governments and other special cases I look forward to our call. Greg OFAC Recommendation First Draft https://docs.google.com/document/d/1h9xCMjxmKDEHj2aD5d4xDEhIddAR0iId5Uer6nL… Master List of Proposed Issues https://docs.google.com/document/d/1WNYj8jfau11OMUzvguZN8UE-fGos54m8XTYUTnR…

1 0

Agenda and Master List of Proposed Issues for Upcoming Jurisdiction Subgroup Meeting at 13:00 UTC 30 August 2017
by Greg Shatan Sept. 4, 2017

Sept. 4, 2017

All: I have attached the agenda and the master list of proposed issues, collated from all of the recent submissions on the list and in the Google Doc. As a first order of business, we need to confirm that all submissions have been found and added to this list. Please review this before the meeting if possible. Thanks! I look forward to our upcoming meeting. Greg

3 4

Google Doc of Draft OFAC Issues and Recommendations
by Greg Shatan Sept. 3, 2017

Sept. 3, 2017

All, Here is the link to the Google Doc for the Draft OFAC Issues and Recommendations document: https://docs.google.com/document/d/1h9xCMjxmKDEHj2aD5d4xDEhIddAR0iId5Uer6nL… Your comments and suggestions will be much appreciated. Thanks! Greg

1 0