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Multiple Layers of Jurisdiction - Google Doc
by Greg Shatan Oct. 5, 2016

Oct. 5, 2016

All, As promised on today's call, I have created a Google Doc version of the slide discussed on today's call. Please add your comments and suggestions to the Google Doc. The link is here: https://docs.google.com/document/d/1oE9xDIAJhr4Nx7vNO_mWotSXuUtTgJMRs6U92yT… Please let me know if you have any issues accessing the document. Greg

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Multiple Layers of Jurisdiction
by Jean-Jacques Subrenat (via Google Docs) Oct. 5, 2016

Oct. 5, 2016

I've shared an item with you: Multiple Layers of Jurisdiction https://docs.google.com/document/d/1oE9xDIAJhr4Nx7vNO_mWotSXuUtTgJMRs6U92yT… It's not an attachment – it's stored online. To open this item, just click the link above. Greg & All, during our call today my audio connection was poor, so I'm sending in writing the "additional jurisdictions" layout I tried to convey orally. Jean-Jacques.

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Agenda for Meeting #6; Multiple Layers of Jurisdictions
by Greg Shatan Oct. 5, 2016

Oct. 5, 2016

All, Here is the agenda for the upcoming meeting of the Jurisdiction Subgroup at 13:00 UTC Wednesday, October 5, 2016, as well as a slide on the "Multiple Layers of Jurisdiction." I look forward to our meeting. Greg

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Fwd: [bylaws-coord] Draft ICANN Bylaws Draft of April 20, 2016: CCWG=Accountability and CWG-Stewardship Certifications
by Greg Shatan Oct. 5, 2016

Oct. 5, 2016

All, In connection with our discussion of the Gap Analysis in Work Stream 1, the email below should be helpful in our work. Greg ---------- Forwarded message ---------- From: Gregory, Holly <holly.gregory(a)sidley.com> Date: Wed, Apr 20, 2016 at 8:29 PM Subject: [bylaws-coord] Draft ICANN Bylaws Draft of April 20, 2016: CCWG=Accountability and CWG-Stewardship Certifications To: "leonfelipe(a)sanchez.mx" <leonfelipe(a)sanchez.mx>, Mathieu Weill < mathieu.weill(a)afnic.fr>, "thomas(a)rickert.net" <thomas(a)rickert.net>, " bylaws-coord(a)icann.org" <bylaws-coord(a)icann.org>, "jrobinson(a)afilias.info" < jrobinson(a)afilias.info>, Lise Fuhr <Fuhr(a)etno.eu>, "cwg-client(a)icann.org" < cwg-client(a)icann.org> Cc: Sidley ICANN CCWG <sidleyicannccwg(a)sidley.com>, "ICANN(a)adlercolvin.com" <ICANN(a)adlercolvin.com>, "accountability-cross-community(a)icann.org" < accountability-cross-community(a)icann.org>, "Flanagan, Sharon" < sflanagan(a)sidley.com>, "ccwg-accountability5(a)icann.org" < ccwg-accountability5(a)icann.org> *CCWG Accountability* April 20, 2016 Dear CCWG-Accountability Co-Chairs, Members, Participants and Staff, We have reviewed the Proposed Draft ICANN Bylaws, dated April 20, 2016 (“Proposed Draft Bylaws”), a copy of which is attached. We believe that the Proposed Draft Bylaws are consistent with the Cross Community Working Group on Enhancing ICANN Accountability (“CCWG-Accountability”) Supplemental Final Proposal on Work Stream 1 Recommendations (23 February 2016) relating to the IANA Stewardship Transition. Accordingly, we recommend that the Proposed Draft Bylaws be posted to the community for review. Kind regards, Holly J. Gregory and Rosemary E. Fei Sidley Austin LLP and Adler & Colvin *CWG-Stewardship* April 20, 2016 Dear CWG Co-Chairs, Members, Participants and Staff, We have reviewed the Proposed Draft ICANN Bylaws, dated April 20, 2016 (“Proposed Draft Bylaws”), a copy of which is attached. We believe that the Proposed Draft Bylaws are consistent with the Cross Community Working Group on Naming Related Functions (“CWG-Stewardship”) Final Proposal (11 June 2015) relating to the IANA Stewardship Transition. Accordingly, we recommend that the Proposed Draft Bylaws be posted to the community for review. Kind regards, Holly J. Gregory and Sharon R. Flanagan Sidley Austin LLP *HOLLY* *J. GREGORY* Partner and Co-Chair Corporate Governance & Executive Compensation Practice Group *Sidley Austin LLP* 787 Seventh Avenue New York, NY 10019 +1 212 839 5853 holly.gregory(a)sidley.com www.sidley.com *[image: SIDLEY]* ************************************************************ **************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. ************************************************************ **************************************** _______________________________________________ bylaws-coord mailing list bylaws-coord(a)icann.org https://mm.icann.org/mailman/listinfo/bylaws-coord

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Milton Mueller on the transition going through
by Jorge.Cancio＠bakom.admin.ch Oct. 4, 2016

Oct. 4, 2016

Dear all I thought this piece from Milton was worth sharing: http://www.internetgovernance.org/2016/09/28/its-over-yestoiana/ What he mentions as "exhibit A" is possibly a possibility that may have not lapsed entirely with the transition and could pop-up in different jurisdictions. Perhaps something worth considering... Regards Jorge

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The Gap Analysis: Question, Method and Objective -- Proposal for Comment
by Greg Shatan Oct. 1, 2016

Oct. 1, 2016

All, Based on the call today, I'm presenting the following as the proposed path forward on the Gap Analysis: 1. *The Question*. Whether each of the accountability measures proposed in Work Stream 1 can be implemented under ICANN's current jurisdictional framework without any gaps. (Implementation "without any gaps" means the ability to apply an accountability measure to, and ultimately enforce that measure against, ICANN.) 2. *The Objective*. The first objective is to determine whether there are any "gaps," i.e., whether any of the WS1 accountability measures cannot be fully implemented under ICANN's current jurisdictional framework. After possible gaps are identified, the subgroup will examine each possible gap to determine if it is in fact a gap. A list of identified gaps will be prepared. (After the gap analysis is completed, the subgroup will then explore possible ways to "close the gap" for each applicable accountability measure, i.e., to implement the measure effectively.) 3. *The Method*. The Final Proposal of WS1 will be posted as a Google Doc. Subgroup members are asked to assign themselves one chapter of the Proposal to review for "gaps." Notes on potential "gaps" can be made directly on the Google Doc proposal as comments. A separate sign-up sheet will be posted, also as a Google Doc. Subgroup members that cannot access Google Drive can put their chosen "assignments" into an email, and can also provide their analysis via email as well. Subgroup rapporteurs and staff will make the necessary notations. Comments are requested and appreciated. However, in order to keep up the momentum, the Final Proposal and sign-up sheet will be posted on Tuesday, September 27. Our question, objective and method can be further refined even as we move forward. I look forward to your comments and to seeing the assignments and analyses in the coming days and weeks. Best regards, Greg

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Notes, recordings, transcript for WS2 Jurisdiction Subgroup Meeting #5 - 26 September 2016
by MSSI Secretariat Sept. 27, 2016

Sept. 27, 2016

Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #5 – 26 September 2016 will be available here: https://community.icann.org/x/rAO4Aw A copy of the notes may be found below. Thank you. With kind regards, Brenda Brewer MSSI Projects & Operations Assistant ICANN - Internet Corporation for Assigned Names and Numbers Notes (including relevant excerpts from the chat): 1. Welcome · Greg Shatan: no audio only. Any changtes to SOIs? (none). (over 25 participants at start of call). 2. Continued Discussion of Gap Analysis: Annex 12 includes “confirming and assessing the gap analysis.” a. Confirming the scope of the “Gap Analysis” b. Method(s) of assessing/performing the Gap Analysis? · Greg Shatan: Given the list discussion this seemed a logical choice as the first topic for the discussion today. Good points brought up by DM. · David McAuley: Based on my experience on WS1 it was my impression that rec. 12 was asking us to consider the gap analysis provided in WS1 and therefore not necessary to do another one. · Pedro da Silva: My conclusion is the opposite of the one by DM. There was an effort at the Istanbul meeting to start a gap analysis. What we had was an intense discussion and not a proper gap analysis. Based on this I conclude we have not completed a gap analysis and need to do so in WS2. · Greg Shatan: Unfortunately, Milton Mueller is not here but will read his email - supports the notion that we need to do a formal gap analysis. Other valid input from Philip Corwin. · Philip Corwin: If we do a gap analysis we cannot do it for specific issues (Chinese menu) we have to look at countries for all the aspects. Counsel at the end of WS1 confirmed that California law met the requirements - which is essentially a gap analysis. Now even if it would be recommended that ICANN be incorporated in another jurisdiction how would it then interact with the Empowered Community and PTI. · Paul McGrady: 2 questions - Why would we jump to finding a new home for ICANN because there is a gap in a subset - would we not first look at filling the gap under the current jurisdiction. Secondly if we do decide to move - How would we proceed to select another country? Would we look at all countries? How long would this take and how much would this cost. · Greg Shatan: Gap analysis is in two parts. The first is are there shortfalls in the current implementation of the recommendations - if not why would we look at another jurisdiction? If there is a gap it would seem logical to seek a simple solution which would not require moving incorporation. So we should do a gap analysis to confirm if there are gaps (but this does not need to be a work for the ages given our timeframe). · Pedro da Silva: One of the tools for helping us to decide if we need to consider re-incorporation should be the gap analysis. · David McAuley: I understand what PDS is saying but it would be good to know what we need to check for Jurisdiction is important. · Greg Shatan: Unless there is a critical that cannot be solved in California then the incorporation discussion should be ended. · Avri Doria: Some feel the gap analysis has not been properly done. Once this is done we would look at these gaps, if any, to see what solutions could be applicable - but moving incorporation would be a very last resort. But to be clear gap, for me, does not automatically imply moving jurisdiction. · Greg Shatan: Agree with AD. · Paul McGrady 2: I agree with Avri - gaps do not automatically= moving out of California. · Cheryl Langdon-Orr (CLO): Agree Avri · Greg Shatan: Uless there are other comments we should look at doing some form of an analysis without re-inventing the wheel or incurring significant legal costs should be done? We need, as a group, to initially identify any potential gaps and if these are confirmed then we can consider if these need to go to the lawyers. Would prefer assignment model - where people tell us what they will look at. · David McAuley (RySG): we should formulate an agreed base question as well - that we will be uniformly following as we review the report. · Greg Shatan: Support DM suggestion. We need a limited time to get this done - 2 weeks? No objections. Action Item: We will review the results at our October 10th meeting. · Pedro da Silva: So you are proposing that we divide amongst ourselves WS1 recommendations to look for gaps - if this is the case we should make a clear separation between requirements and implementation. For the EC this should be doable - we should have a table with the powers of the EC in one column listing the power and then another column listing the mechanisms for implementation. · Greg Shatan: why look alternatives if there is no gap. · Pedro da Silva: as pointed out by PC the EC is not membership. · David McAuley: Agree with GS that we should not look for new jurisdiction until there is a real gap that cannot be resolved otherwise. Should the rapporteurs should get a clear crisp mandate which has been checked by the co-chairs. · Greg Shatan: DM good suggestion. Action Item we should aim to have a completed gap analysis to present in Hyderabad. · Paul McGrady 2: Not just before we identify gaps, but before we identify gaps that can't be fixed by new mechanisms while staying put... · Paul McGrady 2: while staying put... · Philip Corwin: Didn't our expert and not inexpensive outside legal experts provide us with reasonable assurance that all the accountability powers of the designator model could be reasonably and effectively exercised under CA law? · Paul McGrady 2: @Phil - I thought they did and that was what was "sold" to the community before the Marrakech vote. · Greg Shatan: The answer is yes but we have been asked to validate this as a community opinion vs a US legal opinion. · Philip Corwin: Also, BTW, since the Board was effectively able to veto the member model maybe we should take their temperature on whether they have any sympathy for considering an ICANN organization change of jurisdiction in the near term. As they have accepted the designator model under CA law, should we expend any substantial time or $ on looking at other jurisdictions to cure "gaps" if in the end the Board is going to tell us that they reject the concept of moving at this time? They did dispatch the new CEO to Capitol Hill two weeks ago to tell US Senators that ICANN had full intent to remain in the USA. · Pedro da Silva: Support DM suggestion to prepare a set of questions. · Greg Shatan: Is there anything beyond the question beyond the recommendation and how it is implemented. Uncertain about PDS issues. We will produce a question and then proceed to the analysis. Would ask participants to work with the list for questions. Meeting adjourned.

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Agenda for Jurisdiction Subgroup Meeting #5
by Greg Shatan Sept. 26, 2016

Sept. 26, 2016

With apologies for sending this so close to the meeting, I've attached the agenda for today's meeting. It would be great if you have been following the Gap Analysis Discussion started this weekend; this should carry over into the call. Best regards, Greg & Vinay

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Agenda for Meeting #4
by Greg Shatan Sept. 26, 2016

Sept. 26, 2016

All, The agenda for meeting #4 is attached. We look forward to the call. Greg & Vinay

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More on gap analysis
by McAuley, David Sept. 26, 2016

Sept. 26, 2016

I would like to respond to Greg's suggestion in the call earlier this week. On the call we discussed the meaning of gap analysis and its possible implications. Greg asked if Pedro and I would separately note on list the points we each had been attempting to make on the call. What follows are my personal views. The sub-team was addressing the phrase in paragraph 30 of Annex 12 of the CCWG Final Report asking that we give consideration to, "Confirming and assessing the gap analysis, clarifying all concerns regarding the multi-layer jurisdiction issue." I was/am of the view that the concept of "confirming" recognized that WS1 had in effect performed a gap analysis - the potential gap being whether the accountability measures that were proposed could or could not be applied to, and ultimately enforced against, ICANN. For example, when we decided in WS1 that we wanted the ability to remove board members we asked Sidley/Adler if that was possible within the California form we were analyzing - designator, not membership. If the answer had been that we could not then a gap would have existed. If it was that we could then we asked counsel to put the provision into appropriate legal language. We did the same for all accountability measures we wished to put in place, specifically revising the ICANN Mission, enhancing the IRP, and giving the community power/right to: · Reject ICANN budgets, IANA budgets, or strategic/operating plans; · Reject changes to ICANN's standard bylaws; · Approve changes to new fundamental bylaws, Articles, and ICANN's sale or disposition; · Remove a director; · Recall the entire board; · Initiate binding IRP; · Reject ICANN Board decisions relating to reviews of the IANA functions, including the triggering of Post-Transition IANA separation; and · Right of inspection, investigation. That, to me, was a gap analysis. In fact, Annex 12, paragraph 26, noted that WS1 might well have encountered gaps along the way - it recognized the fact that California law does have limits with respect to accountability mechanisms that might be imposed on ICANN. It is that recognition in paragraph 26 that admits a possible gap that we in the sub-team are meant to assess, as I see it. It is also important to note that our remit to confirm/assess the gap analysis is given to us with two qualifiers in paragraph 30: · First, that the main issues that we need to investigate in WS2 "...relate to the influence that ICANN´s existing jurisdiction may have on the actual operation of policies and accountability mechanisms. This refers primarily to the process for the settlement of disputes within ICANN, involving the choice of jurisdiction and of the applicable laws, but not necessarily the location where ICANN is incorporated:" (emphasis added) and · Second, our consideration in WS2 "will focus on the settlement of dispute jurisdiction issues and include..." the act of confirming/assessing the gap analysis that we are engaged in, along with identifying potential alternatives. I underscored the word "necessarily" in the first qualifier above because it appears consistent with the notion of being contingent - on us closing any potential gap. Our sub-team job is relatively straightforward: have we (WS1) managed to avoid or close such gaps; in other words, are the accountability mechanisms we chose applicable and enforceable? If we have succeeded then I submit that our work is limited to analyzing jurisdiction only insofar as it relates to settlement of disputes. And that is why our remit to "identify" potential alternatives, also bounded by the two qualifiers, is to examine potential alternatives with our focus being on settlement of dispute jurisdiction. During the call, Jorge listed in the chat certain portions from the CCWG Second Report mentioning gap analysis (addressing such things as ability to sue/be sued to enforce bylaws and other accountability mechanisms; binding-ness of IRP decisions, and more) and which called for more analysis. I believe that further analysis was done and reflected in the Final Report, which gave us the language we are now addressing. It is important to look at the sub-team work in context. In my view, incorporation in California has one distinct advantage over other locations as concerns ICANN - for over 18 years it has worked. It would be imprudent to consider a location change absent a material problem stemming from jurisdiction that is incapable of resolution. Moreover, consideration of an alternative for ICANN's location would entail, per jurisdiction considered, roughly the same investment in time and lawyers' attention that WS1 expended on legal fees. If this sub-team intends to go down that path, something I recommend against, then we need to make sure that we have budget to support such efforts. So in my view it makes practical sense as well as analytical sense (as performed by the CCWG) for the location issue to be out of scope in WS2 other than as it relates, if at all, to settlement of disputes. As Göran Marby said in last week's hearing , ICANN is committed to remaining domiciled in the US, where it has operated successfully and, among other things, put in place thousands of contracts. David David McAuley International Policy Manager Verisign Inc. 703-948-4154

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