Dear Paul, Respectfully, even though you may find little in the paper that you don't agree with, others may have a completely different view. Anyway, instead of arguing whether staff comments should be part of the main body or an annex, I would rather suggest that we prepare a separate document named "ICANN staff contribution to WS2 Jurisdiction discussion" which would be utilized as an additional input to our work. The main reference should however remain the Jurisdiction portion of the WS1 report. Kind regards, Secretário Pedro Ivo Ferraz da Silva Divisão da Sociedade da Informação (DI) Ministério das Relações Exteriores - Brasil T: + 55 61 2030-6609 Secretary Pedro Ivo Ferraz da Silva Division of Information Society (DI) Ministry of External Relations - Brazil T: + 55 61 2030-6609 -----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] Em nome de Paul McGrady Enviada em: quarta-feira, 24 de agosto de 2016 12:54 Para: 'Perez Galindo, Rafael'; 'Karen Mulberry'; Jorge.Cancio@bakom.admin.ch; ws2-jurisdiction@icann.org Cc: acct-staff@icann.org; thomas@rickert.net Assunto: Re: [Ws2-jurisdiction] Staff paper on jurisdiction posted Thanks Rafael, I respectfully disagree. A well-written, thoughtful Staff paper on the subject should inform our dialogue on this topic and should not be merely "annexed" away. It doesn't mean we have to agree with everything written in the paper, of course (although I find precious little in the paper that I don't agree with). But, we need not discard it either. Best, Paul Paul D. McGrady, Jr. policy@paulmcgrady.com<mailto:policy@paulmcgrady.com> From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Perez Galindo, Rafael Sent: Wednesday, August 24, 2016 4:18 AM To: Karen Mulberry <karen.mulberry@icann.org<mailto:karen.mulberry@icann.org>>; Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Cc: acct-staff@icann.org<mailto:acct-staff@icann.org>; thomas@rickert.net<mailto:thomas@rickert.net> Subject: Re: [Ws2-jurisdiction] Staff paper on jurisdiction posted Agree. Staff-written paragraphs about e.g. ICANN operational ability should not be the basis for discussions, but left as an annex, if needed. We should kick off discussions on the sole basis of the very text agreed by the CCWG by consensus in WS1. Best Rafael De: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] En nombre de Karen Mulberry Enviado el: martes, 23 de agosto de 2016 18:32 Para: Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> CC: acct-staff@icann.org<mailto:acct-staff@icann.org>; thomas@rickert.net<mailto:thomas@rickert.net> Asunto: Re: [Ws2-jurisdiction] Staff paper on jurisdiction posted Jorge, The Subgroup is free to use the information as it wishes, the intention was to provide some background from WS1 discussions and references to the subgroup as it starts its work. Karen Mulberry Multistakeholder Strategy and Strategic Initiatives ICANN From: "Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>" <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> Date: Tuesday, August 23, 2016 at 10:22 AM To: Karen Mulberry <karen.mulberry@icann.org<mailto:karen.mulberry@icann.org>>, "ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>" <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Cc: ACCT-Staff <acct-staff@icann.org<mailto:acct-staff@icann.org>>, "Thomas Rickert (thomas@rickert.net<mailto:thomas@rickert.net>)" <thomas@rickert.net<mailto:thomas@rickert.net>> Subject: AW: Staff paper on jurisdiction posted 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 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: · 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 Von: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] Im Auftrag von Karen Mulberry Gesendet: Dienstag, 23. August 2016 17:56 An: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Cc: ACCT-Staff <acct-staff@icann.org<mailto:acct-staff@icann.org>>; Thomas Rickert (thomas@rickert.net<mailto:thomas@rickert.net>) <thomas@rickert.net<mailto:thomas@rickert.net>> Betreff: [Ws2-jurisdiction] Staff paper on jurisdiction posted I wanted to let you know that the staff paper on Jurisdiction has been posted at https://community.icann.org/x/khWOAw Karen Mulberry Multistakeholder Strategy and Strategic Initiatives ICANN