Thanks for this information.

I wonder whether we are allowed to make comments to the staff document. A change/edit modus would probably be helpful.

As a general remark, I feel that staff comments/opinions should be clearly labeled as such and distinguished from what was agreed in the ws1 paper (i.e. Annex 12), where we said basically the following:

In the summary (points 2 and 5)

“Addressing jurisdiction-related questions, namely: “Can ICANN’s accountability be

enhanced depending on the laws applicable to its actions?” The CCWG-Accountability

anticipates focusing on the question of applicable law for contracts and dispute

settlements.“

And in the “topic development” (starting at point 25):

“25 Jurisdiction

26 Jurisdiction directly influences the way ICANN’s accountability processes are structured and

operationalized. The fact that ICANN is incorporated under the laws of the U.S. State of

California grants the corporation certain rights and implies the existence of certain accountability

mechanisms. It also imposes some limits with respect to the accountability mechanisms it can

adopt.

27 The topic of jurisdiction is, as a consequence, very relevant for the CCWG-Accountability.

ICANN is a nonprofit public benefit corporation incorporated in California and subject to

applicable California state laws, applicable U.S. federal laws and both state and federal court

jurisdiction. ICANN is subject to a provision in paragraph eight1 of the Affirmation of

Commitments, signed in 2009 between ICANN and the U.S. Government.

28 ICANN’s Bylaws (Article XVIII) also state that its principal offices shall be in California.

29 The CCWG-Accountability has acknowledged that jurisdiction is a multi-layered issue and has

identified the following "layers”:

· Place and jurisdiction of incorporation and operations, including governance of internal

affairs, tax system, human resources, etc.

· Jurisdiction of places of physical presence.

· Governing law for contracts with registrars and registries and the ability to sue and be

sued in a specific jurisdiction about contractual relationships.

· Ability to sue and be sued in a specific jurisdiction for action or inaction of staff and for

redress and review of Board action or inaction, including as relates to IRP outcomes and

other accountability and transparency issues, including the Affirmation of Commitments.

· Relationships with the national jurisdictions for particular domestic issues (ccTLDs

managers, protected names either for international institutions or country and other

geographic names, national security, etc.), privacy, freedom of expression.

· Meeting NTIA requirements.

30 At this point in the CCWG-Accountability’s work, the main issues that need to be investigated

within Work Stream 2 relate to the influence that ICANNīs 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:

· Consideration of jurisdiction in Work Stream 2 will focus on the settlement of dispute

jurisdiction issues and include:

o Confirming and assessing the gap analysis, clarifying all concerns regarding the

multi-layer jurisdiction issue.

o Identifying potential alternatives and benchmarking their ability to match all

CCWG-Accountability requirements using the current framework.

o Consider potential Work Stream 2 recommendations based on the conclusions of

this analysis.

31 A specific Subgroup of the CCWG-Accountability will be formed to undertake this work.”

As I commented also in another subgroup, I feel that we should start exactly where we left the different issues in ws1 (i.e. the final report), and not try to reword, selectively quote and/or reorder what was decided then.

Hope this is helpful

Regards

Jorge