I fully support Jordan's intervention here.

Neither this group nor the ICANN Board can legislate for ccTLDs - the strong respecting of the principle of subsidiarity by ICANN is fundamental to the relationship tween the ccTLD community and ICANN, enabling the 2003 Montreal Agreement which rescued the multistakeholder model, reversing the previous year's formal rejection and abandonment of the ICANN system by ccTLDs.



On 22/08/17 10:58, Jordan Carter wrote:

Dear Thiago, dear all,

Dispute resolution regarding ccTLD matters is currently the subject of a
PDP in the ccNSO.

This isn't the perfect link but does give some info:

https://www.icann.org/public-comments/ccnso-pdp-retirement-review-2017-05-24-en

While the existence of the PDP does not prevent this sub-group of the
CCWG discussing this matter, my understanding of ICANN's bylaws is that
the Board would not be able to accept any WS2 recommendation on this
subject.  That is a hard won protection of our ccTLD independence that
has been a feature of the ICANN system since the ccNSO was formed.

As such, the Jurisdiction group may prefer to focus its effort and
energy on matters where implementable recommendations can be made by the
CCWG.

Hope this helps,

Jordan


On Tue, 22 Aug 2017 at 1:32 PM, Thiago Braz Jardim Oliveira
<thiago.jardim@itamaraty.gov.br <mailto:thiago.jardim@itamaraty.gov.br>>

wrote:

    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
    _______________________________________________
    Ws2-jurisdiction mailing list

    Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org>
    https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

--
Jordan Carter | Chief Executive, InternetNZ

+64-21-442-649 | jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>

Sent on the run, apologies for brevity


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