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.
From:
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>;
Jorge.Cancio@bakom.admin.ch;
ws2-jurisdiction@icann.org
Cc: acct-staff@icann.org;
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]
En nombre de Karen Mulberry Enviado el: martes, 23 de agosto de 2016 18:32
Para: Jorge.Cancio@bakom.admin.ch;
ws2-jurisdiction@icann.org
CC: acct-staff@icann.org;
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" <Jorge.Cancio@bakom.admin.ch>
Date: Tuesday, August 23, 2016 at 10:22 AM
To: Karen Mulberry <karen.mulberry@icann.org>, "ws2-jurisdiction@icann.org"
<ws2-jurisdiction@icann.org>
Cc: ACCT-Staff <acct-staff@icann.org>, "Thomas Rickert (thomas@rickert.net)"
<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]
Im Auftrag von Karen Mulberry
Gesendet: Dienstag, 23. August 2016 17:56
An: ws2-jurisdiction@icann.org
Cc: ACCT-Staff <acct-staff@icann.org>; Thomas Rickert (thomas@rickert.net)
<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