On Wednesday 30 November 2016 12:49 PM, Greg Shatan wrote:
To be clear, I don't think anyone has suggested that the subgroup would be limited to "understanding the past" or to looking only at prior experiences. A paucity of information about actual past experiences involving "ICANN's jurisdiction" led to the questionnaire proposal. The fact that we were looking for facts was not a limitation, it was merely intended to give us more knowledge.
One can appreciate and agree with that. It has just been proposed by many that even more knowledge about problems and risks from the given institutional/ legal setup of the current jurisdiction over ICANN would also be extremely helpful... parminder
I think we've spent a considerable amount of time already considering potential effects, and we need to spend more. This is readily apparent (on both counts) in looking at the Google Doc "What is the influence of ICANN’s existing jurisdiction(s) relating to resolution of disputes (i.e., choice of law and venue)
PL make clear, does this doc only include such issues where, to quote 'choice of law and venue' is supposed to be available. In that case, this document cannot in text pertaining to issues where laws of the applicable jurisdiction necessarily apply and there is no choice (whether you want to call it public law or not)... This as per my current understanding is an inappropriate circumscription of the scope of this group.
on the actual operation of ICANN’s policies and accountability mechanisms?"
Yes part is fine, because indeed anything which we discuss must have impact on actual operation of ICANN policies and accountability mechanisms... parminder
https://docs.google.com/document/d/1_uxN8A5J3iaofnGlr5gYoFVKudgg_DuwDgIuyICP...
I encourage, indeed I implore, members of the group to continue considering potential effects and to put proposals into this Google Doc, and to comment on suggestions that are already in the document. This document is the current project of the group, and we need to move it along.
Greg
On Tue, Nov 29, 2016 at 4:05 PM, avri doria <avri@acm.org <mailto:avri@acm.org>> wrote:
Hi,
Much has been said about our mandate. I went and grabbed the appropriate text from the ByLaws and the Proposal.
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/Bylaws/
277.1.b
(vi) Addressing jurisdiction-related questions, including how choice of jurisdiction and applicable laws for dispute settlement impact ICANN's accountability;
/from Report/
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 eight(1) 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.
(1) 8. ICANN affirms its commitments to: (a) maintain the capacity and ability to coordinate the Internet DNS at the overall level and to work for the maintenance of a single, interoperable Internet; (b) remain a not for profit corporation, headquartered in the United States of America with offices around the world to meet the needs of a global community; and (c) to operate as a multi stakeholder, private sector led organization with input from the public, for whose benefit ICANN shall in all events act.
rec 12 line 234
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.
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Language that speaks of choice, applicable laws, and enhancement hardly seems to rest on only understanding the past, a past that was experienced when the current condition of transition had not been achieved. They also do not seem to limit our questions and discussion to the status quo. Even when speaking of 'existing jurisdiction' it speaks of effects that it "may have". Not that it has been shown to have in the past. It speaks of "clarifying all concerns" and ïdentifying alternatives".
>From my re-reading, neither a narrow based questionnaire nor a narrow approach seem consistent with our mandate or the job we need to get done.
avri
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