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Re: [Ws2-jurisdiction] [Ext] Re: Agenda for Upcoming Jurisdiction Meeting
by Kavouss Arasteh Sept. 18, 2017

Sept. 18, 2017

Dear Greg, Further to my previous message, I have further reflected to the text that you posted and made the following edits as attached. This is important to include these edits tonight Regards Kavouss On Mon, Sep 18, 2017 at 12:43 PM, Arasteh <kavouss.arasteh(a)gmail.com> wrote: > Dear Greg > Thanks > I got it from MSSI > I made some Monir edits as sent to you . > I have the following comments / questions > Actions being suggested are partial and thus insufficient. > They do not adequately address the problems > We wee reluctantly agreed not to insist on venue nor applicable law > provided that the OFAC restrictions unilaterally imposed by one government > be waived. Consequently we are not comfortable with the RECOMMENDATION > Regards > Kavouss > > > Sent from my iPhone > > On 18 Sep 2017, at 10:55, Greg Shatan <gregshatanipc(a)gmail.com> wrote: > > Kavouss, > > I circulated the latest version of the OFAC Recommendation to the list a > little over an hour ago, reflecting the discussion from our reading of the > Recommendation on last week's call. You should have already seen it. For > your convenience, I attach it again. Here is the text of the email > transmitting the revised version of the OFAC Recommendation: > > All, > > Attached are copies of the OFAC recommendation, revised to reflect the > issues raised and the results of discussions during the reading of the > recommendation on last week's call. The Google Doc has been revised > following that reading, and Word and PDF copies reflecting these revisions > are attached. > > Please review this version prior to the call. I would like to suggest > that the upcoming call be considered the "second reading" of the > Recommendation, and the Recommendation be left open for 48 hours afterwards > for comments from those unable to attend the call. > > I look forward to our call. > > Best regards, > > Greg > > > On Mon, Sep 18, 2017 at 2:45 AM, Kavouss Arasteh < > kavouss.arasteh(a)gmail.com> wrote: > >> Dear Yvette >> Thank you very much for your swift reply. >> Pls kindly send me the document (OFAC REC,)as being read for the first >> reading >> Regards >> Kavouss >> >> On Mon, Sep 18, 2017 at 8:42 AM, MSSI Secretariat < >> mssi-secretariat(a)icann.org> wrote: >> >>> Hi Kavouss – Good day, hope all is well with you. Your dial out number >>> requested below is noted and will be used for the Jurisdiction call. Please >>> note we will dial out 10 minutes ahead of the call to make sure the hotel >>> can connect the call properly, thank you. >>> >>> >>> >>> Kind Regards, >>> >>> *Yvette Guigneaux* >>> >>> *(MSSI) Multistakeholder Strategy & Strategic Initiatives * >>> >>> Projects & Operations Assistant. >>> >>> >>> >>> *ICANN – Internet Corporation for Assigned Names and Numbers* >>> >>> Email: yvette.guigneaux(a)icann.org >>> >>> Cell: +1-310-460-8432 <(310)%20460-8432> >>> >>> Skype: yvette.guigneaux.icann >>> >>> www.icann.org >>> >>> >>> >>> >>> >>> >>> >>> >>> >>> *From:* Kavouss Arasteh [mailto:kavouss.arasteh@gmail.com] >>> *Sent:* Sunday, September 17, 2017 11:21 PM >>> *To:* Greg Shatan <gregshatanipc(a)gmail.com>; Bernard Turcotte < >>> turcotte.bernard(a)gmail.com>; MSSI Secretariat < >>> mssi-secretariat(a)icann.org> >>> *Subject:* [Ext] Re: [Ws2-jurisdiction] Agenda for Upcoming >>> Jurisdiction Meeting >>> >>> >>> >>> Dear All, >>> >>> 1. Pls kindly note as of today I am in Abu Dhabi ( VICEROY Yas Island ) >>> till 29 September. >>> >>> Unless informed to the contray ,I can be reached at +971 2656 0000 Room >>> 1505. >>> >>> 2. Please kindly forward me with the text of OFAC Rec. which you >>> declared being read ( First Reading)as I can not find it on Google Doc. ( I >>> have had difficulties to search Google DOC. ) Regards >>> >>> Kavouss >>> >>> >>> >>> On Mon, Sep 18, 2017 at 2:57 AM, Greg Shatan <gregshatanipc(a)gmail.com> >>> wrote: >>> >>> All, >>> >>> >>> >>> The agenda for our upcoming meeting is attached. Documents will be >>> circulated soon. Google docs will be recirculated shortly before the >>> meeting, so that any late changes can be captured. >>> >>> >>> >>> I look forward to our call. >>> >>> >>> >>> Greg >>> >>> >>> _______________________________________________ >>> Ws2-jurisdiction mailing list >>> Ws2-jurisdiction(a)icann.org >>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction >>> >>> >>> >> >> > <OFAC Recommendation 09172017.docx> > > <OFAC Recommendation 09172017.pdf> > >

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OFAC Recommendation
by Greg Shatan Sept. 18, 2017

Sept. 18, 2017

All, Attached are copies of the OFAC recommendation, revised to reflect the issues raised and the results of discussions during the reading of the recommendation on last week's call. The Google Doc has been revised following that reading, and Word and PDF copies reflecting these revisions are attached. Please review this version prior to the call. I would like to suggest that the upcoming call be considered the "second reading" of the Recommendation, and the Recommendation be left open for 48 hours afterwards for comments from those unable to attend the call. I look forward to our call. Greg

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Agenda for Upcoming Jurisdiction Meeting
by Greg Shatan Sept. 18, 2017

Sept. 18, 2017

All, The agenda for our upcoming meeting is attached. Documents will be circulated soon. Google docs will be recirculated shortly before the meeting, so that any late changes can be captured. I look forward to our call. Greg

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mandate re ccTLD issues
by Thomas Rickert Sept. 17, 2017

Sept. 17, 2017

Dear all, there has been quite some discussion about whether or not ccTLD delegations and redelegations (Nigel, I know it is technically not a relegation :-)) should be worked on as issues for the jurisdiction sub team. This is a particularly sensitive issue for different reasons. Not all ccTLD operators are part of the ccNSO and therefore ICANN, let alone our group,and we cannot establish rules for disputes that affect those ccTLDs. Further, when we worked on the “judiciary building block“ in our accountability system, we explicitly limited our work to issues not related to ccTLD (re)delegations. Therefore, we made it part of our recommendations that the ccNSO would develop a policy for this.. ccNSO representatives have made it abundantly clear that we must not step over this line and try to impose on them. We could check with the ccNSO leadership, but given the discussions at the time I strongly believe that the ccNSO’s support for WS1 recommendations was based on this very demarcation in our recommendations. In addition to that, one of our main principles for WS2 is not to undo work that has been done in WS1. Working on (re)delegation issues for ccTLDs would violate that rule. I hope this helps. Best, Thomas

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Re: [Ws2-jurisdiction] RES: mandate re ccTLD issues
by Alan Greenberg Sept. 15, 2017

Sept. 15, 2017

Although not important to this discussion, the Board does have the authority to initiate a GNSO PDP. Alan At 15/09/2017 04:25 PM, Mueller, Milton L wrote: > >>The most that the CCWG would have the scope and competence to do >>with any such recommendation would be to make it as a suggestion to >>the ccNSO to consider. Neither the Board nor any other party can >>require the ccNSO to conduct a PDP, and without such a PDP, no >>policy affecting ccTLD matters can be made. >That's fine. The same is true of the GNSO and the ASO for that >matter. This subgroup identifies problems and recommends solutions. >It's up to others to develop policies to implement the solutions. > >Dr. Milton Mueller >Professor, School of Public Policy >Georgia Institute of Technology

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Recordings, DAIRs, Raw Caption Notes for Jurisdiction Subgroup Meeting #46 | 13 September 2017
by Brenda Brewer Sept. 13, 2017

Sept. 13, 2017

Hello all, You may find the recordings, Decisions, Action Items, Requests (DAIRs), and raw caption notes for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #46 – 13 September 2017 posted at https://community.icann.org/x/eiUhB. 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@01D32C96.8858E4C0] Action Items: * GS to develop a plan going forward for the next few remaining calls and publish this on the list this week. 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/69281146/CCWG-Accountabili…> * PDF<https://community.icann.org/download/attachments/69281146/CCWG-Accountabili…> Decisions: * Continue with choice of law discussion at the start of the next meeting. Requests: * Participants to review OFAC recommendation and comment on list. Documents Presented * OFAC Recommendation First Draft<https://community.icann.org/download/attachments/69281146/OFAC%2BRecommenda…> * Master List of Proposed Issues Submitted by Subgroup<https://community.icann.org/download/attachments/69281146/Master%20List%20o…>

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Additional Documents for Upcoming Meeting
by Greg Shatan Sept. 13, 2017

Sept. 13, 2017

All, I attach the following additional documents 1. Proposed Issue: Choice of Law in Registry Agreements. This simply contains the emails from Raphael and Jorge setting out this proposed issue. There has been substantial discussion of these on the list. 2. Background: Amending the Registry Agreement This is an excerpt from the ICANN website, which was posted in connection with the latest Global Amendment to the New gTLD Registry Agreement. Greg

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Agenda and Documents for upcoming Jurisdiction Meeting
by Greg Shatan Sept. 12, 2017

Sept. 12, 2017

All, Here is the agenda and the latest version of the OFAC Recommendation, along with the Master List of Proposed issues. If there are more changes to these documents before the call, I will pull them down and recirculate prior to the call. I look forward to our call. Greg

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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>

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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.

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