On Friday 23 June 2017 02:58 AM, Thomas Rickert wrote:

Dear all,
As previously mentioned, we will address the issue of the procedural decision the co-chairs took during our meeting at ICANN59 in detail. 

However, given the ongoing debate on the list, let me please offer a clarification on one aspect of what I said and, more importantly, what was not said. 

The co-chairs established that

1. Relocalization of ICANN to another jurisdiction and
2. Making ICANN an immune organization

were suggestions that did not get sufficient traction to be further pursued. 

I did not speak to the question of partial immunity.

Thomas, Let me quote your decision as officially recorded, taking the liberty to highlight relevant parts.

We have concluded that the Jurisdiction sub-group will take California jurisdiction as a base line for all its recommendations, and that the sub-team not pursue recommendations to change ICANN's jurisdiction of incorporation, location of headquarters or seek immunity for ICANN. With this decision we are recognizing that there is no possibility that there would be consensus for an immunity based concept or a change of place of incorporation. As such I would establish in the minutes of this call that we focus on the solution that gets most traction. Recognizing that this does not eliminate, as I think Avri said during last week's call, that we can discuss all issues that might arise during the deliberations. But that we actually focus on the status quo being California law and place of incorporation. and work on solutions that are founded on this.

(quote ends)

You clearly removed discussions and possible recommendations on "an immunity based concept", which evidently includes everything related to possible immunities, that phrase seems specifically tailored to cover anything that included the concept of immunity - partial immunity, tailored immunity, whatever. Expecting that you made this sweeping decision after having closely observed the concerned discussions on the list, or being duly reported about them, I cannot see how you could have missed the fact that much of the immunity discussions involved partial or tailored immunity.

In the circumstances, I see this post facto amendment to the decision, after facing strong criticism about the process adopted by you to arrive at it, as an attempt to some make adjustments to its substance to cover up what are strong procedural faults with the decision. The process you adopted was wrong, and the decision should be withdrawn in all aspects for that reason alone.

regards, parminder


Please note that this clarification is in no way intended to be understood as an endorsement of the concept of partial or relative immunity, but I thought it was necessary to go on the record on this aspect. 

Thanks and kind regards,
Thomas
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