- Ws2-jurisdiction - lists.icann.org

CCWG-Accountability-WS2-Jurisdiction-Meeting-20170809-FinalTranscript with corrections by Samantha Eisner of ICANN Legal
by Bernard Turcotte Aug. 24, 2017

Aug. 24, 2017

All, As promised please find attached the final transcript of the August 1st Jurisdiction call where Sam gave a presentation on OFAC. Sam has reviewed the transcript and made corrections in how her presentation and answers were recorded where she saw fit in red line - attached. Although not a perfect transcript Sam's answers to questions should now be clear for all. I would like to thank Sam on behalf of the Jurisdiction group for taking the time to do this. Cheers Bernard Turcotte ICANN Support Staff to the CCWG-Accountability-WS2

1 0

ISSUE: In rem Jurisdiction over ccTLDs
by Thiago Braz Jardim Oliveira Aug. 24, 2017

Aug. 24, 2017

Dear All, For your consideration: Issue 3: In rem Jurisdiction over ccTLDs Description: US courts have in rem jurisdiction over domain names as a result of ICANN's place of incorporation, and US courts and US enforcement agencies could possibly exercise its exclusive enforcement jurisdiction over ICANN to compel it to re-delegate ccTLDs. This is contrary, in particular, to paragraph 63 of the Tunis Agenda: "Countries should not be involved in decisions regarding another country's country-code Top-Level Domain (ccTLD). Their legitimate interests, as expressed and defined by each country, in diverse ways, regarding decisions affecting their ccTLDs, need to be respected, upheld and addressed via a flexible and improved framework and mechanisms." It is to be noted that while paragraph 63 may not state that States have sovereignty over ccTLDs, it does establish that States should not interfere with ccTLDs. Further, an obligation on States not to interfere with certain matters, as ccTLDs, need not be based on the principle of sovereignty to exist, nor does it suppose that the matter is one subject to the sovereignty of States. For States can simply agree to limit their ability to interfere with ccTLDs delegated to other countries, and this is the principle embodied in Paragraph 63 of the Tunis Agenda. Proposed solution: ICANN should seek jurisdictional immunities in respect of ICANN's activities relating to the management of ccTLDs. In addition, it should be included in ICANN Bylaws an exclusive choice of forum provision, whereby disputes relating to the management of any given ccTLD by ICANN shall be settled exclusively in the courts of the country to which the ccTLD in question refer. A similar exclusive choice of forum clause shall be included in those contracts ICANN may have with ccTLD managers, where such a contract exists. Best regards, Thiago

12 35

Recordings, DAIRs, Raw Caption Notes for Jurisdiction Subgroup Meeting #43 | 23 August 2017
by MSSI Secretariat Aug. 24, 2017

Aug. 24, 2017

Hello all, You may find the recordings, Decisions, Action Items, Requests (DAIRs), and raw caption notes for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #43 – 23 August 2017 posted at https://community.icann.org/x/TQIhB. 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@01D31CB8.9B7EE060] Action Items: * GS and Staff will work on completing the list of issues for the next meeting. * GS will propose a draft recommendation on OFAC to the list prior to the next call. 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/69272141/CCWG-Accountabili…> * PDF<https://community.icann.org/download/attachments/69272141/CCWG-Accountabili…> Decisions: * It was accepted to initially proceed with the following issues until the issues list is completed: * OFAC * Choice of law for registry and registrar agreements. Requests: * (none) Documents Presented * The Revised Path Forward<https://community.icann.org/download/attachments/69272141/The%20Revised%20P…>

1 0

[Issue and Solution] Non-US Based Registrars and Following OFAC
by farzaneh badii Aug. 23, 2017

Aug. 23, 2017

One of the jurisdictional issues that were discussed is that some non-US based registrars apply OFAC even when they are not obliged to and merely based on their assumption that because of their contract with ICANN they have to apply OFAC. One solution could be for ICANN to clarify to the registrars that this is not the case and they do not have "to follow OFAC solely on the basis of their having a contract with ICANN". Is it possible to make such clarification? Farzaneh ---------- Forwarded message ---------- From: Paul Rosenzweig <paul.rosenzweig(a)redbranchconsulting.com> Date: Tue, Aug 8, 2017 at 10:28 AM Subject: RE: [Ws2-jurisdiction] Some interesting points from the OFAC Call [WAS RES: WRITTEN ANSWERS TO THE QUESTIONS RAISED DURING THE CALL] To: farzaneh badii <farzaneh.badii(a)gmail.com>, Mike Rodenbaugh < mike(a)rodenbaugh.com> Cc: acct-staff(a)icann.org, Thomas Rickert <thomas(a)rickert.net>, ws2-jurisdiction <ws2-jurisdiction(a)icann.org> This is a good idea. The question then is one of implementation. How would that be made clear to the contracted parties. I suppose ICANN (through Sam or someone else) could publish its interpretation to that effect. I doubt, however, that ICANN would be willing to warranty the correctness of this and hold any one harmless if it was in error. Paul Paul Rosenzweig paul.rosenzweig(a)redbranchconsulting.com O: +1 (202) 547-0660 <(202)%20547-0660> M: +1 (202) 329-9650 <(202)%20329-9650> VOIP: +1 (202) 738-1739 <(202)%20738-1739> www.redbranchconsulting.com My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search= 0x9A830097CA066684 *From:* ws2-jurisdiction-bounces(a)icann.org [mailto:ws2-jurisdiction- bounces(a)icann.org] *On Behalf Of *farzaneh badii *Sent:* Monday, August 7, 2017 4:08 PM *To:* Mike Rodenbaugh <mike(a)rodenbaugh.com> *Cc:* acct-staff(a)icann.org; Thomas Rickert <thomas(a)rickert.net>; ws2-jurisdiction <ws2-jurisdiction(a)icann.org> *Subject:* Re: [Ws2-jurisdiction] Some interesting points from the OFAC Call [WAS RES: WRITTEN ANSWERS TO THE QUESTIONS RAISED DURING THE CALL] I also agree with Jeff and Mike. IGP had proposed this change back in January and we hope it happens. One more issue that we discussed during the meeting was about the uncertainty regarding the application of OFAC to non US-based registrars. Some registrars not based in the US might want to avoid risk and not provide services for sanctioned countries because of their contract with ICANN. I think we should follow up on this issue and solve it by just clarifying ( as Steve asked and Sam confirmed ) "that contracted parties are not obligated to follow OFAC solely on the basis of their having a contract with ICANN". Farzaneh On Mon, Aug 7, 2017 at 3:16 PM, Mike Rodenbaugh <mike(a)rodenbaugh.com> wrote: I agree with Jeff's proposal that ICANN be required to make a good faith application for OFAC license whenever it is necessary to fulfill the purpose of registry and/or registrar agreements. And I support his 2d question, requesting details. Note that OFAC doesn't just hamper registries and registrars located or formed in sanctioned countries, but also registries and registrars with officers, directors or significant shareholders from any of the sanctioned countries (regardless where the business is located or formed). Note further that OFAC licenses are time-limited, requiring periodic reapplication. And ICANN legal has told me that they were not required to seek an OFAC license for my client, even though that client had executed registry agreements with ICANN. I disputed that, and they got the license; but there is no guarantee they will seek it again when it expires, even though the registries are live. I can't see any good reason why ICANN should not be required at least to make a good faith effort to get a license. It seems at least to be implied in the registry agreement anyway, via the covenant of good faith and fair dealing inherent in every contract (at least under California law). If ICANN refused to seek a license, it would frustrate the purpose of the entire agreement. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 <(415)%20738-8087> http://rodenbaugh.com On Mon, Aug 7, 2017 at 11:10 AM, Jeff Neuman <jeff.neuman(a)comlaude.com> wrote: All, Is someone able to document the questions that were not answered during the teleconference? I was on the teleconference, which was great, and I am not sure what still needs to be answered. Also, it seems like we have lost some sight of the main points raised during the call. 1. One of the main points I got on the call was that the language found on the Registrar Accreditation page of the ICANN site states: *”** 4. Application Process.* *…..* *Applicant acknowledges that ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the "SDN List"). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANN has been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. **However, Applicant acknowledges that ICANN is under no obligations to seek such licenses and, in any given case, OFAC could decide not to issue a requested license**.” [Emphasis Added]* ………………… Although the language states that ICANN does not have to seek licenses for residents of sanctioned countries, they generally do. I would like to see that last paragraph state in writing that they are required to seek a license, but acknowledge that OFAC could decide not to issue a requested license. This would ensure that we could have registries and/or registrars in these countries able to at least apply to become accredited. 1. The second point that was interesting was that ICANN seeks licenses for all changes to the root zone if initiated by entities or residents in the OFAC sanctioned countries. It would be helpful to know the terms (and limits) of those licenses (from an accountability standpoint). Are there certain changes that cannot be made without additional licenses, etc. Thanks again for the information on last weeks call and I look forward to discussing the substance. https://www.icann.org/resources/pages/application-2012-02-25-en *Jeffrey J. Neuman* *Senior Vice President *|*Valideus USA* | *Com Laude USA* 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman(a)valideus.com or jeff.neuman(a)comlaude.com T: +1.703.635.7514 <(703)%20635-7514> M: +1.202.549.5079 <(202)%20549-5079> @Jintlaw *From:* ws2-jurisdiction-bounces(a)icann.org [mailto:ws2-jurisdiction- bounces(a)icann.org] *On Behalf Of *Mueller, Milton L *Sent:* Monday, August 7, 2017 7:51 AM *To:* Benedicto Fonseca Filho <benedicto.fonseca(a)itamaraty.gov.br>; Kavouss Arasteh <kavouss.arasteh(a)gmail.com>; Greg Shatan <gregshatanipc(a)gmail.com>; ws2-jurisdiction <ws2-jurisdiction(a)icann.org>; acct-staff(a)icann.org; Thomas Rickert <thomas(a)rickert.net>; Samantha Eisner <Samantha.Eisner(a)icann.org>; Bernard Turcotte <turcotte.bernard(a)gmail.com>; Jordan Carter < jordan(a)internetnz.net.nz>; León Felipe Sánchez Ambía <leonfelipe(a)sanchez.mx> *Subject:* Re: [Ws2-jurisdiction] RES: WRITTEN ANSWERS TO THE QUESTIONS RAISED DURING THE CALL The question I would ask you, Benedicto, and all others suggesting a rather elaborate documentation process, is this: Would you rather this WG develops a final report, or spend most of its remaining time documenting the results of a conference call, the transcript of which is readily available? If you choose the latter, are you then going to complain that we did not finish our work? *From:* ws2-jurisdiction-bounces(a)icann.org [mailto:ws2-jurisdiction- bounces(a)icann.org <ws2-jurisdiction-bounces(a)icann.org>] *On Behalf Of *Benedicto Fonseca Filho *Sent:* Thursday, August 3, 2017 8:23 PM *To:* Kavouss Arasteh <kavouss.arasteh(a)gmail.com>; Greg Shatan < gregshatanipc(a)gmail.com>; ws2-jurisdiction <ws2-jurisdiction(a)icann.org>; acct-staff(a)icann.org; Thomas Rickert <thomas(a)rickert.net>; Samantha Eisner < Samantha.Eisner(a)icann.org>; Bernard Turcotte <turcotte.bernard(a)gmail.com>; Jordan Carter <jordan(a)internetnz.net.nz>; León Felipe Sánchez Ambía < leonfelipe(a)sanchez.mx> *Subject:* [Ws2-jurisdiction] RES: WRITTEN ANSWERS TO THE QUESTIONS RAISED DURING THE CALL Dear all, Let me endorse Kavouss' request - also supported by Seun and Jorge - that answers be provided in written form, with whatever disclaimer might be necessary to ensure they are not in the form of any official legal advice or the like. Judging from the last call's transcript, not all questions formulated upon the rapporteur´s invitation were systematically covered during the call, so it is only fair to have the unanswered questions also addressed, preferably in written form. I'd also reiterate the views expressed by others: for the sake of clarity and to allow and promote further participation, it would be necessary to have also in written form (even if succinct) the answers to the questions that were supposedly covered during last call as the transcript does not allow to clearly correlate each question to each comment/answer. Further, several questions were asked during last call, some of which may have been questions that were only asked at that time. It seems that none of them had to pass the test of consensus either to be asked or to be answered. So it would be unfair now to ask for support for certain questions to be asked and then answered, particularly those questions that were only asked following the rapporteur's invitation in the mailing list. Finally, I believe that no one would ever feel their views are systematically disregarded if their requests or suggestions were subjected to the same test that is applied to other´s proposals… Best regards, Benedicto ------------------------------ *De:* ws2-jurisdiction-bounces(a)icann.org [ws2-jurisdiction-bounces(a)icann.org] em nome de Kavouss Arasteh [kavouss.arasteh(a)gmail.com] *Enviado:* quinta-feira, 3 de agosto de 2017 13:48 *Para:* Greg Shatan; ws2-jurisdiction; acct-staff(a)icann.org; Thomas Rickert; Samantha Eisner; Bernard Turcotte; Jordan Carter; León Felipe Sánchez Ambía *Assunto:* Re: [Ws2-jurisdiction] WRITTEN ANSWERS TO THE QUESTIONS RAISED DURING THE CALL Greg I do not understand what you are talking ABOUT Samantha, during her presentation, three times emphasized that if we had questions we could raise them with her. Read the Transcript. Two of these three times she referred to me. Pls do not be so formalistic. Let us do our work. pls do not complain to anyone about me as it would have negative IMPACT . This issue is important. Then I was formally invited to raise my questions with her, pls read transcript after I was so invited. What do you want to prove? We are not to be treated like student We should be respected. The tone of your message is offensive even though you have used diplomatic offensive language .That does not work We are part of a group and must understand each other’s problems What you stated is quasi preventing me to speak freely? Why there is prohibition to reply to the invitation that she launched to us and to me? Why I should not address my question to ICANN STAFF? She does not work for you. She is working for ICANN and we are all part of ICANN i replied to Sam’s invitation that is all. Why I need the approval of the group in which over represented by those that do not wish that I talk at all ? Cheers On Tue, Aug 1, 2017 at 9:55 PM, Greg Shatan <gregshatanipc(a)gmail.com> wrote: Kavouss, Kindly direct your request to the Subgroup, and not to Sam. This is a matter for the Subgroup to consider, rather than any individual participant. The Subgroup can take up your request and decide whether to ask for written responses to questions (and if so, which questions). Thank you. Best regards, Greg On Tue, Aug 1, 2017 at 10:15 AM, Kavouss Arasteh <kavouss.arasteh(a)gmail.com> wrote: Dear Sam, With tks to your presentation, pls kindly note that I nned written answers to the questions raised before the meeting and those during the meeing either as intervention or in the chat. Regards Kavouss _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction(a)icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction(a)icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

4 3

Agenda and Documents for Today's Call
by Greg Shatan Aug. 23, 2017

Aug. 23, 2017

All, The agenda and documents for today's call are attached. Please note that the 24 hours Bernie and I allowed ourselves to collate all submissions into a single document proved to be insufficient, due to the timing, volume and nature of the submissions. We will continue to work on this over the next few days. I've indicated in the past that there would be no absolute deadline for submission of proposed issues until it was absolutely clear that a deadline was being set. For this reason, and since the combined document is still in progress, the Subgroup's participants can continue to send submissions until *23:59 UTC on Sunday, August 27. This will be the final deadline for submission of issues. **It would be helpful if any further potential issues and recommendations submitted hew closely to the request for succinctness. Thank you.* I look forward to today's call. Greg

1 0

ISSUE: US Jurisdiction over ICANN's activities that comply with GAC advice or that are otherwise based on powers or prerogatives recognised onto Governments under ICANN's multistakeholder governance model
by Thiago Braz Jardim Oliveira Aug. 23, 2017

Aug. 23, 2017

Dear All, For your consideration: Issue 2: Jurisdiction over ICANN's activities that comply with GAC advice or that are otherwise based on powers or prerogatives recognised onto Governments under ICANN's multistakeholder governance model Description: The courts of ICANN's place of incorporation are in a unique position to both exercise jurisdiction and enforce judgments (i.e. jurisdiction to prescribe and, more importantly, exclusive enforcement jurisdiction) over disputes in respect of the management of domain names opposing ICANN to some allegedly aggrieved party (for example, a dispute over ICANN's rejection of an application for new gTLDs), based on the "localisation" of the "act complained of" and the "act to be enforced" (i.e. all relating to the management of the root zone by ICANN, which has been said to take place in the territory of the country of incorporation and is subject to the exclusive territorial jurisdiction of that country). These disputes, however, may relate to ICANN's activities that have been the subject of GAC advice or are otherwise based on powers recognised onto Governments according to ICANN's laws (for example, the disputed act may have been prompted by ICANN's decision to follow GAC advice). Activities that have been the subject of GAC advice or of Governmental authority as recognized under ICANN's laws involve public policy issues that are for Governments to act upon on an equal footing. Their settlement should be through agreed dispute settlement mechanisms according to agreed rules, and they should not be subject to the courts of any country nor, for that matter, to the courts of the country of incorporation. Independent accountability mechanisms for review of ICANN's actions will remain in place, and there shall be provision for arbitration in substitution for local courts. Proposed solution: ICANN shall establish a compulsory dispute settlement mechanism, or commit to have recourse to international arbitration, for disputes relating to ICANN's activities that have been the subject of GAC advice or are otherwise subject to Governmental authority as recognized under ICANN's laws. Once a compulsory dispute settlement mechanism has been agreed for such disputes, ICANN shall seek jurisdictional immunities from the local courts in their respect. In addition, ICANN should include in its agreements an exclusive choice of forum clause, whereby disputes relating to ICANN's activities that have been the subject of GAC advice or that are otherwise subject to Governmental authority as recognized under ICANN's laws shall be settled exclusively through recourse to arbitration. With respect to arbitration in such cases, ICANN shall commit to exercise its party's right to appoint arbitrators in consultation with the GAC or the Governments concerned. Dispute as to whether the GAC or Governments are entitled to exercise powers recognized under ICANN's laws in respect to a given subject, shall be settled through the agreed and compulsory dispute settlement mechanism referred to above, and it should involve the interested parties and the GAC or the Governments concerned. Best regards, Thiago

3 3

ISSUE - unilateral jurisdiction of one country over ICANN
by parminder Aug. 23, 2017

Aug. 23, 2017

Issue: Various branches and agencies of the United States of America - from judicial and legislative to executive, including its many regulatory agencies - have exclusive (like no other country's) direct legal remit and power over ICANN, as a US non-profit organisation, with respect to practically every aspect that can conceivably be affected by state power (their range is so enormous that it is vain to begin listing them). These agencies/ y can and do exercise them at any time in pursuance of US law and policies, that have the primary purpose to uphold US public interest and US constitution. Many examples of such powers and their possible use have been given invarious public submissions <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to this group, including this one <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview…> , and also this <https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.p…>. Since ICANN is supposed to make policies and implement them with regard to the global DNS in the global public interest and not just US public interest, such unilateral availability and use of legal state power with one country, the US, over ICANN is untenable, and goes against basic principles of democracy including of "no legislation/ policy without representation". These principles are recognised by UN instruments as human rights, and most countries today including the US are built over them. Proposed solution: ICANN be granted immunity under the International Organisations Immunities Act of the US. This immunity should be tailored/customised in a manner that ICANN still remains subject to non profit law of the state of California under which it is registered, and its organisational processes function, and other such US laws and institutions that are strictly required for ICANN to be able to satisfactorily carry out its organisational, policy and technical functions (an assessment with respect to which should be undertaken asap). Additional notes: If I may add, this has been "THE" jurisdiction question since the WSIS days if not earlier ( actually since the time ICANN was formed). Whether or not we are able to agree to recommending any solution to this jurisdiction question, it will be an unacceptable travesty of facts and history if this group does not accept this as an important, if not "THE", jurisdiction question in relation to ICANN. Whether or not this group is able to contribute to global public interest by making any positive progress on the question of ICANN's jurisdiction, following the principles of good governance and democracy, let it not regress and actually serve to obfuscate what is seen and known as the "ICANN's jurisdiction" question by everyone, by the global public at large. (For instance, in ICANN's own internal discussions like when the ICANN chair commissioned this report <https://archive.icann.org/en/psc/corell-24aug06.html>on the jurisdiction issue). If we can accept that this is a key jurisdiction (even if not "THE") question, but are not able to agree on a proposed solution, let us just write that in our report. But let us not contribute to alt-truth, a very dangerous phenomenon that is often spoke of nowadays. Both as a group, and individually as responsible persons - given an important global political responsibility -- we owe at least that much to ourselves. As for myself, and the groups that I work with, we will stand resolutely till the end in the path of any such synthesis of artificial reality - when a global group tasked to address the decades old democratic question of unilateral jurisdiction of one country over the global governance body, ICANN, comes up with a report that asserts that this is not a jurisdiction issue at all, or at least not an important one. parminder

9 66

Re: [Ws2-jurisdiction] ISSUE: US Jurisdiction over ICANN's activities that comply with GAC advice or that are otherwise based on powers or prerogatives recognised onto Governments under ICANN's multistakeholder governance model
by Bartlett Morgan Aug. 23, 2017

Aug. 23, 2017

+1 Milton's comment On Aug 22, 2017 5:47 PM, "Mueller, Milton L" <milton(a)gatech.edu> wrote: Thiago If I understand what you are saying here, I have to totally reject it, and I suspect most others in this group will. What you seem to be saying here: Proposed solution: ICANN shall establish a compulsory dispute settlement mechanism, or commit to have recourse to international arbitration, for disputes relating to ICANN's activities that have been the subject of GAC advice or are otherwise subject to Governmental authority as recognized under ICANN's laws. …is that GAC advice should supersede the normal ICANN bottom up multistakeholder policy development process (BUMP) and be subject to a special dispute resolution procedure that applies to ICANN and GAC alone. This is a brazen power play to redesign ICANN in a way that transforms it into an intergovernmental institution. It ain’t ever going to happen, Thiago, except perhaps in your dreams. Let me add that “independent accountability mechanisms” such as the IRP and the empowered community process already exist and no changes need to me made based on jurisdictional issues. Those mechanisms are not subject to arbitrary interference from the USG based on ICANN’s jurisdiction. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction(a)icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

3 2

Issue 2, Non interference of States in ccTLDs of other States
by Kavouss Arasteh Aug. 22, 2017

Aug. 22, 2017

Dear Greg, Dear Bernard Since yesterday ,I tried several times to post my issues in the Spreadsheet but I have not succeeded. Pls kindly include this issue as my Issue 2 in that Sheet as follows: *Non-interference of States in ccTLDs of other States * Resolution 102 of ITU Plenipotentiary Conference 2014 Busan relating to International public policy issues pertaining to the Internet and the management of Internet resources, including domain names and addresses Which was unanimously adopted by all Governments attending that conference including the United States of America in its recognizing further stipulates Quote *“recognizing further* *h) that Member States represent the interests of the population of the country or territory for which a ccTLD has been delegated;* *i) that countries should not be involved in decisions regarding another country's ccTLD,” * Unquote The Resolution also in its resolve stipulates that Quote * “resolves * * 2 that the sovereign and legitimate interests, as expressed and defined by each country, in diverse ways, regarding decisions affecting their ccTLDs, need to be respected and ensured, upheld and addressed via flexible and improved frameworks and mechanisms;”* Unquote In view of the above no state should interfere with ccTLDs of other states . *Proposed solution:* ICANN should seek jurisdictional immunities in respect of ICANN's activities relating to the management of ccTLDs. Moreover, it should be included in ICANN Bylaws an exclusive provision, whereby disputes relating to the management of any given ccTLD by ICANN shall be settled exclusively in the courts of the country to which the ccTLD in question refer. Such exclusive clause shall be included in the contracts ICANN negotiate with ccTLD managers, where such a contract exists. Regards Kavouss

3 2

Issues 1-6 from ".swiss" and JCancio
by Jorge.Cancio＠bakom.admin.ch Aug. 22, 2017

Aug. 22, 2017

Dear Greg, please find attached for your ease a compilation of the issues from the ".swiss" Registry and those which I had identified before. Hope this helps Regards Jorge -----Ursprüngliche Nachricht----- Von: ws2-jurisdiction-bounces(a)icann.org [mailto:ws2-jurisdiction-bounces@icann.org] Im Auftrag von Jorge.Cancio(a)bakom.admin.ch Gesendet: Dienstag, 22. August 2017 06:25 An: gregshatanipc(a)gmail.com Cc: acct-staff(a)icann.org; ws2-jurisdiction(a)icann.org Betreff: Re: [Ws2-jurisdiction] Jurisdiction Subgroup: The (Revised) Path Forward Dear Greg, Thanks for this info. I've tried myself to include it into the spreasheet but it turned out not to work properly for me. Nonetheless as I understand, a simple Email was also an accepted means to submit the issues which is what I did. Please rank the issues on the .swiss contribution first and the issues on the Email last. thanks and regards Jorge ________________________________ Von: Greg Shatan <gregshatanipc(a)gmail.com> Datum: 21. August 2017 um 23:38:35 MESZ An: Cancio Jorge BAKOM <Jorge.Cancio(a)bakom.admin.ch> Cc: acct-staff(a)icann.org <acct-staff(a)icann.org>, ws2-jurisdiction <ws2-jurisdiction(a)icann.org> Betreff: Re: [Ws2-jurisdiction] Jurisdiction Subgroup: The (Revised) Path Forward Jorge, If you want them in the spreadsheet, our method has been to have the participants enter their own issues into the list. Here's the link to the Google doc spreadsheet: https://docs.google.com/spreadsheets/d/1zAMj3Oz8TEqbjauOyqt09Ef-1ada9TrC7i6…. Unfortunately, I do not have the time to enter data for participants, nor does our staff support. If you prefer not to do so, tomorrow, Bernie and I will be collating the issues put forward by participants as requested in the Path Forward approach. I assume you want these to be considered your issue submissions. If that is the case, kindly rank the issues you present in order of priority as requested in the Path Forward Approach. Thank you, Greg On Mon, Aug 21, 2017 at 8:35 AM, <Jorge.Cancio(a)bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> wrote: Dear Greg, I just checked the Google Doc and I saw that the issues I have proposed are apparently not included, although you had mentioned that the Email where I had reiterated these prior issue proposal had "been noted". I would therefore respectfully request their inclusion (see my original Email attached). Thanks and regards >Jorge Von: ws2-jurisdiction-bounces(a)icann.org<mailto:nces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>] Im Auftrag von Greg Shatan Gesendet: Montag, 21. August 2017 05:33 An: ws2-jurisdiction <ws2-jurisdiction(a)icann.org<mailto:ws2-jurisdiction@icann.org>> Cc: acct-staff(a)icann.org<mailto:acct-staff@icann.org> Betreff: [Ws2-jurisdiction] Jurisdiction Subgroup: The (Revised) Path Forward At our 16 August meeting, we discussed the initial "Path Forward" proposal and various comments from participants. We arrived at the following approach to produce Subgroup recommendations. 11 October Deadline: . Based on the overall timeline for Work Stream 2, the Subgroup has until 11 October to submit a draft report and set of recommendations to the Plenary for first reading. . In other words, we have about seven (7) weeks to develop a draft set of issues and recommendations and come to consensus on these. A Handful of Issues: We will need to select a handful of issues (likely, 2 to 4) which: . Are within our remit. . Will result in recommendations that achieve consensus in the Subgroup. The Challenge: Everyone will have to compromise in order to finalize this limited number of issues over the next very few weeks and work diligently at meetings and on the list to develop recommendations for these particular issues. The Method: Participants should each present one or more issues (with proposed solutions) which they believe are in scope for the Subgroup . If you present more than one issue, please prioritize them (e.g., 1, 2, 3) . Post the issue statement(s) to the list by 23:59 on 21 August for discussion at our meeting of 23 August. . Issues should be very specific -- avoid open-ended, abstract or omnibus issues. . All proposed issue statements should include one or more proposed solutions. . Issue and solution descriptions should be succinct -- 12 standard lines maximum (each). . Send your issue statement to the email list or put it on the Google sheet: o Use a new email (not a reply), with the subject ISSUE: [name of issue]. o Google sheet is here: https://docs.google.com/spreadsheets/d/1zAMj3Oz8TEqbjauOyqt09Ef-1ada9TrC7i6… . If you put your issue on the Google sheet, notify the email list. . If another participant proposes an issue you wanted to propose, simply post your support for that issue statement. Thank you. Greg ---------- Forwarded message ---------- From: <Jorge.Cancio(a)bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> To: <gregshatanipc(a)gmail.com<mailto:gregshatanipc@gmail.com>>, <ws2-jurisdiction(a)icann.org<mailto:ws2-jurisdiction@icann.org>> Cc: <thomas(a)rickert.net<mailto:thomas@rickert.net>> Bcc: Date: Wed, 16 Aug 2017 06:56:00 +0000 Subject: Re: [Ws2-jurisdiction] Jurisdiction Subgroup: The Path Forward Dear Greg, May I kindly request confirmation that you have read this message and will take the "issues" I mention on the latest document? (a task where staff could certainly lend a hand) Best regards Jorge Von: ws2-jurisdiction-bounces(a)icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>] Im Auftrag von Jorge.Cancio(a)bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Gesendet: Montag, 14. August 2017 08:57 An: gregshatanipc(a)gmail.com<mailto:gregshatanipc@gmail.com>; ws2-jurisdiction(a)icann.org<mailto:ws2-jurisdiction@icann.org> Cc: thomas(a)rickert.net<mailto:thomas@rickert.net> Betreff: Re: [Ws2-jurisdiction] Jurisdiction Subgroup: The Path Forward Dear Greg and all, Here is my feedback: - The ".swiss" input into the questionnaire still stands, which identifies issues and also some possible solutions. (see attached) - In addition, I would like to recall the following inputs I made to the "influence document" (which I found here: https://community.icann.org/display/WEIA/Jurisdiction) "ICANNs main agreements (with registries and registrars) are generally silent on applicable law. This silence may be construed differently by different courts in different jurisdictions, although I feel there is a natural tendency in courts to apply its own laws if the agreement is silent and there are internal/national rules that tilt into a certain direction. This means that the choice of applicable law may be limited nowadays in practice, which in principle may disadvantage stakeholders not familiar with the implicit choice of law. At the same time, registry agreements for IGO/Governmental entities have some flexibilities built in as to applicable law or, to be more precise, as to conflicts arising from diverging obligations coming from the agreement with ICANN and the international law obligations. This is reflected for instance in section 7.16 of the model registry agreement. This flexibility could be extended to other registries confronted with similar conflicts, not only with international law, but also when confronted with conflicts stemming from national law. The flexibility could also take the form of a more wider recognition of freedom to choose the applicable law for the parties in the main agreements ICANN has. The material you mention has, at least at first glance, some relevant rules of choice of law that in a foreigners eye seem to clearly tilt for the "forum" jurisdiction (for instance the "government interest analysis test"). But, what are the rules followed by California? I see that for "contracts" (most relevant to contracting parties) the second restatement is followed apparently which provides the following: "d.Contract: In the first instance, the courts must give effect to the law chosen by the parties. In the absence of any such agreement, the courts are directed to the "significant relationship" test of Section 6. Restatement (Second) of Conflict of Laws § 188. The contacts to take into account in determining those principles are: i.the place of contracting, ii.the place of negotiation of the contract, iii.the place of performance, iv.the location of the subject matter of the contract, and v.the domicile, residence, nationality, place of incorporation and place of business of the parties." It would be interesting to know how these contact points are construed in the relation between ICANN and its contracted parties, i.e. what the place of contracting is, the place of negotiation, place of performance, etc. - how they are intended to be construed by the contracting parties and what have been the actual analysis (if any) in the cases had up to today in disputes. For "torts" (I guess including cases brought for damages by materially harmed parties that are not contractually bound to ICANN) the mentioned "governmental interest analysis" seems to apply ("California uses this test in determining the law applicable to tort claims."). This test means that "the law of the forum is presumed to apply unless a party demonstrates otherwise." I feel this could be seen as a significant tilt. Experiences on how these rules (both on contracts and torts) apply in practice could be of interest and could be contrasted with ICANN, and registries and registrars (and other parties) based in other jurisdictions. That fact-finding exercise would also allow us to see whether and in what instances that "tilting" occurs. A similar fact-finding should be done for what "applicable law" applies in internal mechanisms (such as the IRP). 2) Making sure that the hearings of the IRP are location-neutral 3) In the "multiple layers" doc, under "venue", I had identified the following issues and solutions: "Under venue or venues: multiplicity of venues and of providers of dispute resolution mechanisms (be it judicial or arbitration). Flexibilities as to standards, election of providers, language of proceedings, freedom to choose for the parties.]" and "I guess that under "venue" we would need to consider the IRP and other internal redress mechanisms and how well they address the needs of a global stakeholder community, in terms of their composition, the language of proceedings, the venue(s), the providers, etc.]." I may have missed other important points made before, but I'm sure Secretariat could help in collating all our essential inputs. Kind regards Jorge Von: ws2-jurisdiction-bounces(a)icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] Im Auftrag von Greg Shatan Gesendet: Samstag, 12. August 2017 01:13 An: ws2-jurisdiction <ws2-jurisdiction(a)icann.org<mailto:ws2-jurisdiction@icann.org>> Cc: Thomas Rickert <thomas(a)rickert.net<mailto:thomas@rickert.net>> Betreff: [Ws2-jurisdiction] Jurisdiction Subgroup: The Path Forward Jurisdiction Subgroup Members, As explained by Staff at our last meeting on 9 August, we have until 11 October to submit a draft set of recommendations to the Plenary for consideration as a first reading if any such recommendations are to be accepted by the Plenary, published for Public Consultation and included in the Final WS2 Report. In other words, we have about 8 weeks to develop a draft set of recommendations and come to consensus on these. Obviously, given this time-frame, we have to accept that we will not be able to address all issues. In fact, the only realistic approach, if we want to deliver any recommendations, is to pick a handful of issues (2 to 4) on which we can all agree and for which we believe we can propose recommendations that will achieve consensus. I remain optimistic that we can do this if we can agree, meaning everyone will have to compromise, to select this limited number of issues over the next very few weeks and work diligently at meetings and on the list to develop recommendations for these. To reach this objective I would propose the following approach: * Each participant should pick one issue which they believe is in scope for us and post that issue to the list prior to our meeting of 23 August. More specifically: * Issues should be very specific -- avoid open-ended, abstract or omnibus issues * Issue description should be succinct -- 12 standard lines maximum * Proposed solutions - if you have a possible solution or recommendation which should be considered, please include it (again, being succinct). * Put your issue in a new email (not a reply), with the subject ISSUE: [name of issue] * The sooner, the better I look forward to discussing this proposal at our next meeting of 16 August and I would encourage participants to comment on this proposal in response to this email prior to that meeting. Greg _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction(a)icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

2 1