Dear Greg, I am only able to comment on the document. I don't know if it is meant to be that way? It won't make things very legible I'm afraid... Best, 2017-06-20 8:54 GMT+02:00 <Jorge.Cancio@bakom.admin.ch>:

Dear Greg,

I’m sorry to having to apologize again.

As to the issues list: I feel that we should take on board all potential issues identified in prior documents (e.g. the multiple layers doc; the impact document, etc.) – perhaps that is a task for staff to do. In my case, I’ve more or less substantially contributed to those docs (and maybe to others) but with other pressing issues on my desk I really won’t have time to restate those issues. In addition, the issues identified by the responses to the questionnaire and in the legal cases should be included.

Thanks and regards

Jorge

*Von:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org] *Im Auftrag von *Greg Shatan *Gesendet:* Dienstag, 20. Juni 2017 08:06 *An:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Betreff:* [Ws2-jurisdiction] Agenda for Jurisdiction Subgroup Meeting 20 June at 19:00 UTC

All,

The agenda for the upcoming meeting is attached. Materials other than Google Drive documents are also attached. Google drive documents will be downloaded and circulated nearer to the meeting.

I particularly encourage members to contribute to the newly-created Proposed Issues List:

https://docs.google.com/spreadsheets/d/1zAMj3Oz8TEqbjauOyqt09Ef- 1ada9TrC7i60Mk-7al4/edit?usp=sharing.

It's important that we collect proposed issues that have already been brought up in various documents and put them in one place.

I look forward to our upcoming meeting.

Greg

_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

-- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15

Jorge, I think we are in agreement on the sources of potential issues for the list. I will see whether Staff has the bandwidth to review those sources and carry over the information. If not, we'll need to rely on the Subgroup to do the work. Hopefully, it will be more a matter of "cutting and pasting" than restating. Sorry you will not be on the call. I look forward to seeing you in Johannesburg. Best regards, Greg On Tue, Jun 20, 2017 at 2:54 AM, <Jorge.Cancio@bakom.admin.ch> wrote:

Dear Greg,

I’m sorry to having to apologize again.

As to the issues list: I feel that we should take on board all potential issues identified in prior documents (e.g. the multiple layers doc; the impact document, etc.) – perhaps that is a task for staff to do. In my case, I’ve more or less substantially contributed to those docs (and maybe to others) but with other pressing issues on my desk I really won’t have time to restate those issues. In addition, the issues identified by the responses to the questionnaire and in the legal cases should be included.

Thanks and regards

Jorge

*Von:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org] *Im Auftrag von *Greg Shatan *Gesendet:* Dienstag, 20. Juni 2017 08:06 *An:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Betreff:* [Ws2-jurisdiction] Agenda for Jurisdiction Subgroup Meeting 20 June at 19:00 UTC

All,

The agenda for the upcoming meeting is attached. Materials other than Google Drive documents are also attached. Google drive documents will be downloaded and circulated nearer to the meeting.

I particularly encourage members to contribute to the newly-created Proposed Issues List:

https://docs.google.com/spreadsheets/d/1zAMj3Oz8TEqbjauOyqt09Ef- 1ada9TrC7i60Mk-7al4/edit?usp=sharing.

It's important that we collect proposed issues that have already been brought up in various documents and put them in one place.

I look forward to our upcoming meeting.

Greg

Benedicto, Thank you for your email. I think your first question is best answered by the Co-Chairs, and I have copied them on this email. As previously noted, this matter is on the Agenda of the CCWG-Plenary F2F in Johannesburg, and will be discussed there. In the same vein, I encourage you to raise your suggestion regarding immunity in the Plenary, as that is where the matter lies at this point. (I will note that we have had quite extended explorations of various immunity concepts on the mailing list of this group over the last several months.) Let me clarify for all: Since this matter rests with the Plenary now and not with the Subgroup, there will not be an extended discussion of the matter on today's call. The "Decision" section of the agenda is intended to be a report from the last week, for the sake of information and continuity. This call will focus on the the proposed issues list, questionnaire responses, and the litigation review. Best regards, Greg On Tue, Jun 20, 2017 at 1:20 PM, Benedicto Fonseca Filho < benedicto.fonseca@itamaraty.gov.br> wrote:

Dear all,

I would like to refer to item 4.1 ("Decision") of the agenda for today´s meeting (#36).

First of all, in regard to *procedural aspects*, may I request a clarification. Does the precedent used in WS1 in regard to "narrowing alternatives" refer to decisions emanating from discussions of the Group as a whole ("bottom-up") or made by the Co-Chairs ("top-down")? On the other hand, considering the different characteristics of the work pursued in both Work streams (focus on one single topic in WS1 vs. different streams of work in dedicated Subgroups in WS2), it would be disturbing, in any case (and a bad precedent, I must say) that the CCWG co-chairs would seek to so heavily interfere with the work of any Subgroup. In other words, do the Co-chairs have the right to substitute their views for the views of the Subgroup in the absence of a clear consensus within the Subgroup itself and also in the absence of a decision by the CCWG-plenary in support of that interference?

Secondly, in *substance*, I would not see a problem, for the sake of moving ahead discussions in the Subgroup, to accept the assumption that the Group should take California legislation as a baseline for its subsequent work (I think it might be too early to speak about actual recommendations at the present stage) and work on solutions founded on this. We can also concur that, in that light, the Subgroup should not pursue recommendations to change ICANN´s jurisdiction of incorporation or headquarters location.

We do not concur, however, that the Group should be impeded to explore, on the other hand, possibilities regarding immunity of ICANN, on the basis of the presumption that "…. there is no possibility of consensus for an immunity-based concept…". We consider the link between the two notions is flawed for three main reasons: (i) as it has been stated before by Brazil and others, it is not correct to assume that no form of immunity from domestic jurisdiction is possible for ICANN in case it remains an organisation incorporated in California, as immunity arrangements are possible under different forms (e.g the ICRC, which has domestic and international law immunities, even though it remains a private organisation governed by Swiss law). Therefore, even if we were to assume that ICANN will not change places, or that it will remain incorporated in California, this assumption does not rule out the immunity solution, which can be limited immunity rather than absolute immunity, and which can take the form, for example, of immunity from adjudication in domestic courts rather than immunity from the local laws; (ii) within the Subgroup itself, there is certainly no consensus that this avenue is entirely out of question and should be further discussed, including with the resort to proper independent legal advice; (iii) in our view, the degree of support of any such idea (which were never duly explored) could only be assessed at the end of the exercise and not lead to and early conclusion that "there is no possibility of consensus".

I therefore call for removal of the restriction on the group exploring possibilities related to immunity. In our view – and without prejudice to concerns previously expressed in regard to procedural aspects -, retaining the rest of the proposed language by the Co-chairs can be acceptable in the present circumstances as providing a way forward but this should not impede the Group to explore a possibility deemed by some members (among which, may I say, the majority of government representantives) to be crucial. Needless to say that any recommendation in that sense should not undermine other representatives positions and interests. We are convinced this would be indeed possible but to get there we need to pursue substantive discussions, benefitting of the narrower focus proposed by the Co-Chairs in regard to ICANN´s jurisdiction of incorporation and headquarters.

May I conclude by recalling that the Subgroup had previously agreed to (i) identify issues before it goes on to explore remedies; (ii) look at proposed remedies; (iii) not to discuss a remedy until an issue has been identified that requires discussion of that remedy. The co-Chair´s "Decision" inverts that logic by establishing an ex-ante position in abstract. We agree that in the present circumstances to continue discussion changes of ICANN´s jurisdiction of incorporation and headquarters might not be helpuful but a different thing would be to rule out discussion on alternatives that might lead to a satisfactory set of rules from the perspective of many governments while being acceptable to others. That approach would be detrimental to the whole process as it might alienate many participants from discussion, including, possibly, the Brazilian government.

In my view, independently of the outcomes of this afternoon´s call, the whole subject should be discussed at the CCWG plenary F2F meeting next Sunday.

Best regards,

Benedicto

*Benedicto Fonseca Filho* *Director, Department of Scientific and Technological Themes* *Ministry of External Relations* *BRAZIL* *Phone: (+5561) 2030-9164 <+55%2061%202030-9164>/9165*

------------------------------ *De:* ws2-jurisdiction-bounces@icann.org [ws2-jurisdiction-bounces@ icann.org] em nome de Greg Shatan [gregshatanipc@gmail.com] *Enviado:* terça-feira, 20 de junho de 2017 3:06 *Para:* ws2-jurisdiction *Assunto:* [Ws2-jurisdiction] Agenda for Jurisdiction Subgroup Meeting 20 June at 19:00 UTC

All,

The agenda for the upcoming meeting is attached. Materials other than Google Drive documents are also attached. Google drive documents will be downloaded and circulated nearer to the meeting.

I particularly encourage members to contribute to the newly-created Proposed Issues List:

https://docs.google.com/spreadsheets/d/1zAMj3Oz8TEqbjauOyqt09Ef- 1ada9TrC7i60Mk-7al4/edit?usp=sharing.

It's important that we collect proposed issues that have already been brought up in various documents and put them in one place.

I look forward to our upcoming meeting.

Greg

Well said, Benedicto. Immunity in international law is now a quite complex concept. Long are gone days when absolute immunity was the rule.

From our work so far, we see that interference in ICANN’s core activities is quite small but happening. As long as courts prevent substantial interference the situation may go on but we should be vigilant. Considering alternatives is difficult as accountability means no immunity against the ICANN Community. Stakeholder control is always necessary and best implemented in State-based organisations. Recent examples show a strong weakness with private international organisations but there is also the example of the International Committee of the Red Cross. The ICANN accountability model needs a strong jurisdiction and Callifornia law can provide that. Alternatives are missing so far but can be developed. Thus, we should move on developing the principle that courts should not interfere with ICANN’s core activities, under whatever concept (e.g. not a genuine link of the jurisdiction or third party interests). Best, Erich Schweighofer

Von: Arasteh<mailto:kavouss.arasteh@gmail.com> Gesendet: Dienstag, 20. Juni 2017 23:47 An: Benedicto Fonseca Filho<mailto:benedicto.fonseca@itamaraty.gov.br> Cc: ws2-jurisdiction<mailto:ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] RES: Agenda for Jurisdiction Subgroup Meeting 20 June at 19:00 UTC Dear All I wholeheartedly support every item , word expressed by Benedicto Regards Kavouss Sent from my iPhone On 20 Jun 2017, at 13:20, Benedicto Fonseca Filho <benedicto.fonseca@itamaraty.gov.br<mailto:benedicto.fonseca@itamaraty.gov.br>> wrote: Dear all, I would like to refer to item 4.1 ("Decision") of the agenda for today´s meeting (#36). First of all, in regard to procedural aspects, may I request a clarification. Does the precedent used in WS1 in regard to "narrowing alternatives" refer to decisions emanating from discussions of the Group as a whole ("bottom-up") or made by the Co-Chairs ("top-down")? On the other hand, considering the different characteristics of the work pursued in both Work streams (focus on one single topic in WS1 vs. different streams of work in dedicated Subgroups in WS2), it would be disturbing, in any case (and a bad precedent, I must say) that the CCWG co-chairs would seek to so heavily interfere with the work of any Subgroup. In other words, do the Co-chairs have the right to substitute their views for the views of the Subgroup in the absence of a clear consensus within the Subgroup itself and also in the absence of a decision by the CCWG-plenary in support of that interference? Secondly, in substance, I would not see a problem, for the sake of moving ahead discussions in the Subgroup, to accept the assumption that the Group should take California legislation as a baseline for its subsequent work (I think it might be too early to speak about actual recommendations at the present stage) and work on solutions founded on this. We can also concur that, in that light, the Subgroup should not pursue recommendations to change ICANN´s jurisdiction of incorporation or headquarters location. We do not concur, however, that the Group should be impeded to explore, on the other hand, possibilities regarding immunity of ICANN, on the basis of the presumption that "…. there is no possibility of consensus for an immunity-based concept…". We consider the link between the two notions is flawed for three main reasons: (i) as it has been stated before by Brazil and others, it is not correct to assume that no form of immunity from domestic jurisdiction is possible for ICANN in case it remains an organisation incorporated in California, as immunity arrangements are possible under different forms (e.g the ICRC, which has domestic and international law immunities, even though it remains a private organisation governed by Swiss law). Therefore, even if we were to assume that ICANN will not change places, or that it will remain incorporated in California, this assumption does not rule out the immunity solution, which can be limited immunity rather than absolute immunity, and which can take the form, for example, of immunity from adjudication in domestic courts rather than immunity from the local laws; (ii) within the Subgroup itself, there is certainly no consensus that this avenue is entirely out of question and should be further discussed, including with the resort to proper independent legal advice; (iii) in our view, the degree of support of any such idea (which were never duly explored) could only be assessed at the end of the exercise and not lead to and early conclusion that "there is no possibility of consensus". I therefore call for removal of the restriction on the group exploring possibilities related to immunity. In our view – and without prejudice to concerns previously expressed in regard to procedural aspects -, retaining the rest of the proposed language by the Co-chairs can be acceptable in the present circumstances as providing a way forward but this should not impede the Group to explore a possibility deemed by some members (among which, may I say, the majority of government representantives) to be crucial. Needless to say that any recommendation in that sense should not undermine other representatives positions and interests. We are convinced this would be indeed possible but to get there we need to pursue substantive discussions, benefitting of the narrower focus proposed by the Co-Chairs in regard to ICANN´s jurisdiction of incorporation and headquarters. May I conclude by recalling that the Subgroup had previously agreed to (i) identify issues before it goes on to explore remedies; (ii) look at proposed remedies; (iii) not to discuss a remedy until an issue has been identified that requires discussion of that remedy. The co-Chair´s "Decision" inverts that logic by establishing an ex-ante position in abstract. We agree that in the present circumstances to continue discussion changes of ICANN´s jurisdiction of incorporation and headquarters might not be helpuful but a different thing would be to rule out discussion on alternatives that might lead to a satisfactory set of rules from the perspective of many governments while being acceptable to others. That approach would be detrimental to the whole process as it might alienate many participants from discussion, including, possibly, the Brazilian government. In my view, independently of the outcomes of this afternoon´s call, the whole subject should be discussed at the CCWG plenary F2F meeting next Sunday. Best regards, Benedicto Benedicto Fonseca Filho Director, Department of Scientific and Technological Themes Ministry of External Relations BRAZIL Phone: (+5561) 2030-9164/9165 ________________________________ De: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>] em nome de Greg Shatan [gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>] Enviado: terça-feira, 20 de junho de 2017 3:06 Para: ws2-jurisdiction Assunto: [Ws2-jurisdiction] Agenda for Jurisdiction Subgroup Meeting 20 June at 19:00 UTC All, The agenda for the upcoming meeting is attached. Materials other than Google Drive documents are also attached. Google drive documents will be downloaded and circulated nearer to the meeting. I particularly encourage members to contribute to the newly-created Proposed Issues List: https://docs.google.com/spreadsheets/d/1zAMj3Oz8TEqbjauOyqt09Ef-1ada9TrC7i60.... It's important that we collect proposed issues that have already been brought up in various documents and put them in one place. I look forward to our upcoming meeting. Greg _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

As one who fights ICANN in many legal matters, on behalf of clients from all over the world, I cannot imagine why anyone would want ICANN to be immune from lawsuits in California or anywhere else. But, therefore, I am in favor of substantive discussion to understand why anyone would think that way, and to have a chance to refute such thinking with real-world examples that have already happened or all still ongoing. Thanks, Mike Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.com On Tue, Jun 20, 2017 at 11:49 PM, <Jorge.Cancio@bakom.admin.ch> wrote:

Dear all,

I would also like to associate myself with the wise words of Ambassador Fonseca.

Kind regards

Jorge

*Von:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org] *Im Auftrag von *Arasteh *Gesendet:* Dienstag, 20. Juni 2017 23:47 *An:* Benedicto Fonseca Filho <benedicto.fonseca@itamaraty.gov.br> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Betreff:* Re: [Ws2-jurisdiction] RES: Agenda for Jurisdiction Subgroup Meeting 20 June at 19:00 UTC

Dear All

I wholeheartedly support every item , word expressed by Benedicto

Regards

Kavouss

Sent from my iPhone

On 20 Jun 2017, at 13:20, Benedicto Fonseca Filho < benedicto.fonseca@itamaraty.gov.br> wrote:

Dear all,

I would like to refer to item 4.1 ("Decision") of the agenda for today´s meeting (#36).

First of all, in regard to *procedural aspects*, may I request a clarification. Does the precedent used in WS1 in regard to "narrowing alternatives" refer to decisions emanating from discussions of the Group as a whole ("bottom-up") or made by the Co-Chairs ("top-down")? On the other hand, considering the different characteristics of the work pursued in both Work streams (focus on one single topic in WS1 vs. different streams of work in dedicated Subgroups in WS2), it would be disturbing, in any case (and a bad precedent, I must say) that the CCWG co-chairs would seek to so heavily interfere with the work of any Subgroup. In other words, do the Co-chairs have the right to substitute their views for the views of the Subgroup in the absence of a clear consensus within the Subgroup itself and also in the absence of a decision by the CCWG-plenary in support of that interference?

Secondly, in *substance*, I would not see a problem, for the sake of moving ahead discussions in the Subgroup, to accept the assumption that the Group should take California legislation as a baseline for its subsequent work (I think it might be too early to speak about actual recommendations at the present stage) and work on solutions founded on this. We can also concur that, in that light, the Subgroup should not pursue recommendations to change ICANN´s jurisdiction of incorporation or headquarters location.

We do not concur, however, that the Group should be impeded to explore, on the other hand, possibilities regarding immunity of ICANN, on the basis of the presumption that "…. there is no possibility of consensus for an immunity-based concept…". We consider the link between the two notions is flawed for three main reasons: (i) as it has been stated before by Brazil and others, it is not correct to assume that no form of immunity from domestic jurisdiction is possible for ICANN in case it remains an organisation incorporated in California, as immunity arrangements are possible under different forms (e.g the ICRC, which has domestic and international law immunities, even though it remains a private organisation governed by Swiss law). Therefore, even if we were to assume that ICANN will not change places, or that it will remain incorporated in California, this assumption does not rule out the immunity solution, which can be limited immunity rather than absolute immunity, and which can take the form, for example, of immunity from adjudication in domestic courts rather than immunity from the local laws; (ii) within the Subgroup itself, there is certainly no consensus that this avenue is entirely out of question and should be further discussed, including with the resort to proper independent legal advice; (iii) in our view, the degree of support of any such idea (which were never duly explored) could only be assessed at the end of the exercise and not lead to and early conclusion that "there is no possibility of consensus".

I therefore call for removal of the restriction on the group exploring possibilities related to immunity. In our view – and without prejudice to concerns previously expressed in regard to procedural aspects -, retaining the rest of the proposed language by the Co-chairs can be acceptable in the present circumstances as providing a way forward but this should not impede the Group to explore a possibility deemed by some members (among which, may I say, the majority of government representantives) to be crucial. Needless to say that any recommendation in that sense should not undermine other representatives positions and interests. We are convinced this would be indeed possible but to get there we need to pursue substantive discussions, benefitting of the narrower focus proposed by the Co-Chairs in regard to ICANN´s jurisdiction of incorporation and headquarters.

May I conclude by recalling that the Subgroup had previously agreed to (i) identify issues before it goes on to explore remedies; (ii) look at proposed remedies; (iii) not to discuss a remedy until an issue has been identified that requires discussion of that remedy. The co-Chair´s "Decision" inverts that logic by establishing an ex-ante position in abstract. We agree that in the present circumstances to continue discussion changes of ICANN´s jurisdiction of incorporation and headquarters might not be helpuful but a different thing would be to rule out discussion on alternatives that might lead to a satisfactory set of rules from the perspective of many governments while being acceptable to others. That approach would be detrimental to the whole process as it might alienate many participants from discussion, including, possibly, the Brazilian government.

In my view, independently of the outcomes of this afternoon´s call, the whole subject should be discussed at the CCWG plenary F2F meeting next Sunday.

Best regards,

Benedicto

*Benedicto Fonseca Filho*

*Director, Department of Scientific and Technological Themes*

*Ministry of External Relations*

*BRAZIL*

*Phone: (+5561) 2030-9164 <+55%2061%202030-9164>/9165*

------------------------------

*De:* ws2-jurisdiction-bounces@icann.org [ws2-jurisdiction-bounces@ icann.org] em nome de Greg Shatan [gregshatanipc@gmail.com] *Enviado:* terça-feira, 20 de junho de 2017 3:06 *Para:* ws2-jurisdiction *Assunto:* [Ws2-jurisdiction] Agenda for Jurisdiction Subgroup Meeting 20 June at 19:00 UTC

All,

The agenda for the upcoming meeting is attached. Materials other than Google Drive documents are also attached. Google drive documents will be downloaded and circulated nearer to the meeting.

I particularly encourage members to contribute to the newly-created Proposed Issues List:

https://docs.google.com/spreadsheets/d/1zAMj3Oz8TEqbjauOyqt09Ef- 1ada9TrC7i60Mk-7al4/edit?usp=sharing.

It's important that we collect proposed issues that have already been brought up in various documents and put them in one place.

I look forward to our upcoming meeting.

Greg

_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

Dear Erich, Thank you. Let me add my voice to the points you rightly make. The rule of immunity, which need not be absolute, is correctly understood as a mechanism to make sure legal disputes are adjudicated by the most appropriate forum, which can be national courts, international panels or tribunals, arbitration, etc. Take the example of disputes involving the management of ccTLDs. It should not be open to the courts of any country other than the country responsible for a given ccTLD to adjudicate on matters relating to that ccTLD. This is what Tunis Agenda, paragraph 63, says: "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." And what is a mechanism through which the above principle can be uphold? Jurisdictional immunity, which enhances ICANN's accountably, as defined in the NETmundial multistakeholder statement. Accountability towards all stakeholders, Governments included, supposes mechanisms for redress that are independent and meet stakeholders expectations, one of which was embodied in paragraph 63 of the 2005 Tunis Agenda. Best, Thiago -----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] Em nome de Schweighofer Erich Enviada em: quinta-feira, 22 de junho de 2017 06:12 Para: Mike Rodenbaugh; Jorge.Cancio@bakom.admin.ch Cc: ws2-jurisdiction Assunto: Re: [Ws2-jurisdiction] RES: Agenda for Jurisdiction Subgroup Meeting 20 June at 19:00 UTC Good argument but please think differently. Immunity of States and international entities nowadays should not and is be seen that much in the traditional sense - full immunity from legal actions - but more determining the appropriate legal forum (e.g. questions juri imperii should be handled by the courts of the concerned State, with known exceptions). Immunity of International Organisations is much too broad and internal controls are not always working well. For ICANN, it is the question which is the most appropriate forum to fight against Board decisions concerning IANA competences and if the present redress procedures are sufficient. In my view, it does not make much sense that such decisions could be challenged in every court worldwide. Best, Erich Schweighofer Von: Mike Rodenbaugh<mailto:mike@rodenbaugh.com> Gesendet: Mittwoch, 21. Juni 2017 22:02 An: Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Cc: ws2-jurisdiction<mailto:ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] RES: Agenda for Jurisdiction Subgroup Meeting 20 June at 19:00 UTC As one who fights ICANN in many legal matters, on behalf of clients from all over the world, I cannot imagine why anyone would want ICANN to be immune from lawsuits in California or anywhere else. But, therefore, I am in favor of substantive discussion to understand why anyone would think that way, and to have a chance to refute such thinking with real-world examples that have already happened or all still ongoing. Thanks, Mike Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.com On Tue, Jun 20, 2017 at 11:49 PM, <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> wrote: Dear all, I would also like to associate myself with the wise words of Ambassador Fonseca. Kind regards Jorge Von: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>] Im Auftrag von Arasteh Gesendet: Dienstag, 20. Juni 2017 23:47 An: Benedicto Fonseca Filho <benedicto.fonseca@itamaraty.gov.br<mailto:benedicto.fonseca@itamaraty.gov.br>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Betreff: Re: [Ws2-jurisdiction] RES: Agenda for Jurisdiction Subgroup Meeting 20 June at 19:00 UTC Dear All I wholeheartedly support every item , word expressed by Benedicto Regards Kavouss Sent from my iPhone On 20 Jun 2017, at 13:20, Benedicto Fonseca Filho <benedicto.fonseca@itamaraty.gov.br<mailto:benedicto.fonseca@itamaraty.gov.br>> wrote: Dear all, I would like to refer to item 4.1 ("Decision") of the agenda for today´s meeting (#36). First of all, in regard to procedural aspects, may I request a clarification. Does the precedent used in WS1 in regard to "narrowing alternatives" refer to decisions emanating from discussions of the Group as a whole ("bottom-up") or made by the Co-Chairs ("top-down")? On the other hand, considering the different characteristics of the work pursued in both Work streams (focus on one single topic in WS1 vs. different streams of work in dedicated Subgroups in WS2), it would be disturbing, in any case (and a bad precedent, I must say) that the CCWG co-chairs would seek to so heavily interfere with the work of any Subgroup. In other words, do the Co-chairs have the right to substitute their views for the views of the Subgroup in the absence of a clear consensus within the Subgroup itself and also in the absence of a decision by the CCWG-plenary in support of that interference? Secondly, in substance, I would not see a problem, for the sake of moving ahead discussions in the Subgroup, to accept the assumption that the Group should take California legislation as a baseline for its subsequent work (I think it might be too early to speak about actual recommendations at the present stage) and work on solutions founded on this. We can also concur that, in that light, the Subgroup should not pursue recommendations to change ICANN´s jurisdiction of incorporation or headquarters location. We do not concur, however, that the Group should be impeded to explore, on the other hand, possibilities regarding immunity of ICANN, on the basis of the presumption that ".. there is no possibility of consensus for an immunity-based concept.". We consider the link between the two notions is flawed for three main reasons: (i) as it has been stated before by Brazil and others, it is not correct to assume that no form of immunity from domestic jurisdiction is possible for ICANN in case it remains an organisation incorporated in California, as immunity arrangements are possible under different forms (e.g the ICRC, which has domestic and international law immunities, even though it remains a private organisation governed by Swiss law). Therefore, even if we were to assume that ICANN will not change places, or that it will remain incorporated in California, this assumption does not rule out the immunity solution, which can be limited immunity rather than absolute immunity, and which can take the form, for example, of immunity from adjudication in domestic courts rather than immunity from the local laws; (ii) within the Subgroup itself, there is certainly no consensus that this avenue is entirely out of question and should be further discussed, including with the resort to proper independent legal advice; (iii) in our view, the degree of support of any such idea (which were never duly explored) could only be assessed at the end of the exercise and not lead to and early conclusion that "there is no possibility of consensus". I therefore call for removal of the restriction on the group exploring possibilities related to immunity. In our view - and without prejudice to concerns previously expressed in regard to procedural aspects -, retaining the rest of the proposed language by the Co-chairs can be acceptable in the present circumstances as providing a way forward but this should not impede the Group to explore a possibility deemed by some members (among which, may I say, the majority of government representantives) to be crucial. Needless to say that any recommendation in that sense should not undermine other representatives positions and interests. We are convinced this would be indeed possible but to get there we need to pursue substantive discussions, benefitting of the narrower focus proposed by the Co-Chairs in regard to ICANN´s jurisdiction of incorporation and headquarters. May I conclude by recalling that the Subgroup had previously agreed to (i) identify issues before it goes on to explore remedies; (ii) look at proposed remedies; (iii) not to discuss a remedy until an issue has been identified that requires discussion of that remedy. The co-Chair´s "Decision" inverts that logic by establishing an ex-ante position in abstract. We agree that in the present circumstances to continue discussion changes of ICANN´s jurisdiction of incorporation and headquarters might not be helpuful but a different thing would be to rule out discussion on alternatives that might lead to a satisfactory set of rules from the perspective of many governments while being acceptable to others. That approach would be detrimental to the whole process as it might alienate many participants from discussion, including, possibly, the Brazilian government. In my view, independently of the outcomes of this afternoon´s call, the whole subject should be discussed at the CCWG plenary F2F meeting next Sunday. Best regards, Benedicto Benedicto Fonseca Filho Director, Department of Scientific and Technological Themes Ministry of External Relations BRAZIL Phone: (+5561) 2030-9164<tel:+55%2061%202030-9164>/9165 ________________________________ De: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>] em nome de Greg Shatan [gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>] Enviado: terça-feira, 20 de junho de 2017 3:06 Para: ws2-jurisdiction Assunto: [Ws2-jurisdiction] Agenda for Jurisdiction Subgroup Meeting 20 June at 19:00 UTC All, The agenda for the upcoming meeting is attached. Materials other than Google Drive documents are also attached. Google drive documents will be downloaded and circulated nearer to the meeting. I particularly encourage members to contribute to the newly-created Proposed Issues List: https://docs.google.com/spreadsheets/d/1zAMj3Oz8TEqbjauOyqt09Ef-1ada9TrC7i60.... It's important that we collect proposed issues that have already been brought up in various documents and put them in one place. I look forward to our upcoming meeting. Greg _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

Dear all, thanks for your comments. Be sure that I am aware of jurisdictional consequences as an international lawyer. In the project RESPECT, we have done a quite deep study about monitoring of the international finance system, legally and technically. It is much more complex than OFAC. Best, Erich Schweighofer Von: Kavouss Arasteh [mailto:kavouss.arasteh@gmail.com] Gesendet: Donnerstag, 22. Juni 2017 15:58 An: Thiago Braz Jardim Oliveira Cc: Schweighofer Erich; ws2-jurisdiction Betreff: Re: [Ws2-jurisdiction] RES: RES: Agenda for Jurisdiction Subgroup Meeting 20 June at 19:00 UTC Dear All, I fully support the argument submitted above, Erich needs to kindly listen to others and realize that we MUST find solutions for impact of maintaining Jurisdiction under California Law. PEOPLE SHOULD NOT PUT OBSTACLE ,ONE AFTER THE OTHER, TO ADDRESS THE CONSEQUENCE OF REMAINING IN CALIFORNIA AND ACCEPTING us Jurisdiction. There are problems OFAC is another headache that Erich does not recognize to be a difficulty .We understand that but there are other nations seriously suffering from OFAXC which was not designed to treat TLD. Regards Kavouss 2017-06-22 15:31 GMT+02:00 Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br<mailto:thiago.jardim@itamaraty.gov.br>>: Dear Erich, Thank you. Let me add my voice to the points you rightly make. The rule of immunity, which need not be absolute, is correctly understood as a mechanism to make sure legal disputes are adjudicated by the most appropriate forum, which can be national courts, international panels or tribunals, arbitration, etc. Take the example of disputes involving the management of ccTLDs. It should not be open to the courts of any country other than the country responsible for a given ccTLD to adjudicate on matters relating to that ccTLD. This is what Tunis Agenda, paragraph 63, says: "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." And what is a mechanism through which the above principle can be uphold? Jurisdictional immunity, which enhances ICANN's accountably, as defined in the NETmundial multistakeholder statement. Accountability towards all stakeholders, Governments included, supposes mechanisms for redress that are independent and meet stakeholders expectations, one of which was embodied in paragraph 63 of the 2005 Tunis Agenda. Best, Thiago -----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>] Em nome de Schweighofer Erich Enviada em: quinta-feira, 22 de junho de 2017 06:12 Para: Mike Rodenbaugh; Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Cc: ws2-jurisdiction Assunto: Re: [Ws2-jurisdiction] RES: Agenda for Jurisdiction Subgroup Meeting 20 June at 19:00 UTC Good argument but please think differently. Immunity of States and international entities nowadays should not and is be seen that much in the traditional sense - full immunity from legal actions - but more determining the appropriate legal forum (e.g. questions juri imperii should be handled by the courts of the concerned State, with known exceptions). Immunity of International Organisations is much too broad and internal controls are not always working well. For ICANN, it is the question which is the most appropriate forum to fight against Board decisions concerning IANA competences and if the present redress procedures are sufficient. In my view, it does not make much sense that such decisions could be challenged in every court worldwide. Best, Erich Schweighofer Von: Mike Rodenbaugh<mailto:mike@rodenbaugh.com<mailto:mike@rodenbaugh.com>> Gesendet: Mittwoch, 21. Juni 2017 22:02 An: Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch><mailto:Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> Cc: ws2-jurisdiction<mailto:ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Betreff: Re: [Ws2-jurisdiction] RES: Agenda for Jurisdiction Subgroup Meeting 20 June at 19:00 UTC As one who fights ICANN in many legal matters, on behalf of clients from all over the world, I cannot imagine why anyone would want ICANN to be immune from lawsuits in California or anywhere else. But, therefore, I am in favor of substantive discussion to understand why anyone would think that way, and to have a chance to refute such thinking with real-world examples that have already happened or all still ongoing. Thanks, Mike Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087<tel:%2B1.415.738.8087> http://rodenbaugh.com On Tue, Jun 20, 2017 at 11:49 PM, <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch><mailto:Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>> wrote: Dear all, I would also like to associate myself with the wise words of Ambassador Fonseca. Kind regards Jorge Von: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org><mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>> [mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org><mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>>] Im Auftrag von Arasteh Gesendet: Dienstag, 20. Juni 2017 23:47 An: Benedicto Fonseca Filho <benedicto.fonseca@itamaraty.gov.br<mailto:benedicto.fonseca@itamaraty.gov.br><mailto:benedicto.fonseca@itamaraty.gov.br<mailto:benedicto.fonseca@itamaraty.gov.br>>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org><mailto:ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>>> Betreff: Re: [Ws2-jurisdiction] RES: Agenda for Jurisdiction Subgroup Meeting 20 June at 19:00 UTC Dear All I wholeheartedly support every item , word expressed by Benedicto Regards Kavouss Sent from my iPhone On 20 Jun 2017, at 13:20, Benedicto Fonseca Filho <benedicto.fonseca@itamaraty.gov.br<mailto:benedicto.fonseca@itamaraty.gov.br><mailto:benedicto.fonseca@itamaraty.gov.br<mailto:benedicto.fonseca@itamaraty.gov.br>>> wrote: Dear all, I would like to refer to item 4.1 ("Decision") of the agenda for today´s meeting (#36). First of all, in regard to procedural aspects, may I request a clarification. Does the precedent used in WS1 in regard to "narrowing alternatives" refer to decisions emanating from discussions of the Group as a whole ("bottom-up") or made by the Co-Chairs ("top-down")? On the other hand, considering the different characteristics of the work pursued in both Work streams (focus on one single topic in WS1 vs. different streams of work in dedicated Subgroups in WS2), it would be disturbing, in any case (and a bad precedent, I must say) that the CCWG co-chairs would seek to so heavily interfere with the work of any Subgroup. In other words, do the Co-chairs have the right to substitute their views for the views of the Subgroup in the absence of a clear consensus within the Subgroup itself and also in the absence of a decision by the CCWG-plenary in support of that interference? Secondly, in substance, I would not see a problem, for the sake of moving ahead discussions in the Subgroup, to accept the assumption that the Group should take California legislation as a baseline for its subsequent work (I think it might be too early to speak about actual recommendations at the present stage) and work on solutions founded on this. We can also concur that, in that light, the Subgroup should not pursue recommendations to change ICANN´s jurisdiction of incorporation or headquarters location. We do not concur, however, that the Group should be impeded to explore, on the other hand, possibilities regarding immunity of ICANN, on the basis of the presumption that ".. there is no possibility of consensus for an immunity-based concept.". We consider the link between the two notions is flawed for three main reasons: (i) as it has been stated before by Brazil and others, it is not correct to assume that no form of immunity from domestic jurisdiction is possible for ICANN in case it remains an organisation incorporated in California, as immunity arrangements are possible under different forms (e.g the ICRC, which has domestic and international law immunities, even though it remains a private organisation governed by Swiss law). Therefore, even if we were to assume that ICANN will not change places, or that it will remain incorporated in California, this assumption does not rule out the immunity solution, which can be limited immunity rather than absolute immunity, and which can take the form, for example, of immunity from adjudication in domestic courts rather than immunity from the local laws; (ii) within the Subgroup itself, there is certainly no consensus that this avenue is entirely out of question and should be further discussed, including with the resort to proper independent legal advice; (iii) in our view, the degree of support of any such idea (which were never duly explored) could only be assessed at the end of the exercise and not lead to and early conclusion that "there is no possibility of consensus". I therefore call for removal of the restriction on the group exploring possibilities related to immunity. In our view - and without prejudice to concerns previously expressed in regard to procedural aspects -, retaining the rest of the proposed language by the Co-chairs can be acceptable in the present circumstances as providing a way forward but this should not impede the Group to explore a possibility deemed by some members (among which, may I say, the majority of government representantives) to be crucial. Needless to say that any recommendation in that sense should not undermine other representatives positions and interests. We are convinced this would be indeed possible but to get there we need to pursue substantive discussions, benefitting of the narrower focus proposed by the Co-Chairs in regard to ICANN´s jurisdiction of incorporation and headquarters. May I conclude by recalling that the Subgroup had previously agreed to (i) identify issues before it goes on to explore remedies; (ii) look at proposed remedies; (iii) not to discuss a remedy until an issue has been identified that requires discussion of that remedy. The co-Chair´s "Decision" inverts that logic by establishing an ex-ante position in abstract. We agree that in the present circumstances to continue discussion changes of ICANN´s jurisdiction of incorporation and headquarters might not be helpuful but a different thing would be to rule out discussion on alternatives that might lead to a satisfactory set of rules from the perspective of many governments while being acceptable to others. That approach would be detrimental to the whole process as it might alienate many participants from discussion, including, possibly, the Brazilian government. In my view, independently of the outcomes of this afternoon´s call, the whole subject should be discussed at the CCWG plenary F2F meeting next Sunday. Best regards, Benedicto Benedicto Fonseca Filho Director, Department of Scientific and Technological Themes Ministry of External Relations BRAZIL Phone: (+5561) 2030-9164<tel:%28%2B5561%29%202030-9164><tel:+55%2061%202030-9164>/9165 ________________________________ De: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org><mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>> [ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org><mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>>] em nome de Greg Shatan [gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com><mailto:gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>] Enviado: terça-feira, 20 de junho de 2017 3:06 Para: ws2-jurisdiction Assunto: [Ws2-jurisdiction] Agenda for Jurisdiction Subgroup Meeting 20 June at 19:00 UTC All, The agenda for the upcoming meeting is attached. Materials other than Google Drive documents are also attached. Google drive documents will be downloaded and circulated nearer to the meeting. I particularly encourage members to contribute to the newly-created Proposed Issues List: https://docs.google.com/spreadsheets/d/1zAMj3Oz8TEqbjauOyqt09Ef-1ada9TrC7i60.... It's important that we collect proposed issues that have already been brought up in various documents and put them in one place. I look forward to our upcoming meeting. Greg _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org><mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org><mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

Milton is right, with one small caveat. *NEW* ccTLD delegations are governed by ICANN-developed policies. Or rather they would be, if we weren't still operating on pre-ICANN developed policy (for ASCII strings). Delegations before ICANN existed cannot be *governed* by anything of ICANN's in a strict sense. But the vast majority of ccTLDs abide by the existing consensus, simply becuase it's sensible. (NB: there are one or two, government or royal-controlled ones that don't accept the consensus view, but they are outliers). If a public authority wishes to formally control, or nationalise a ccTLD operator, it may, subject to the rule of law (if the country is a _rechtstaat), do so by virtue of the simple requirement (which predates ICANN) that there be an administative presence in the country concerned. The statement that the relevant government(s) is or are the ultimate authority on matters of public policy in respect of ccTLDs is, of course, simply trite law, since they are the fount of authority in ALL matters of public policy in that country.

...

-----Original Message-----

Take the example of disputes involving the management of ccTLDs. It should not be open to the courts of any country other than the country responsibleccTLD delegations are governed by ICANN-developed policies for a given ccTLD to adjudicate on matters relating to that ccTLD.

For the record, I don't necessarily agree with this. (via ccNSO, etc.). A California or US court could be and should be involved in determining whether ICANN broke its own rules in some kind of a decision related to cc's. Note that the US court is NOT making the policy; it is simply providing recourse if ICANN breaks its bylaws or otherwise ignores proper process.

...

This is what Tunis Agenda, paragraph 63, says: "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."

But this assumes that ccTLDs are subject to national sovereignty, which is a policy that has not been accepted even by GAC, much less by the rest of the ICANN community. Nor is there any international legal basis for asserting national sovereignty over cc's.

Remember that the Tunis Agenda was NOT a policy that achieved consensus amongst all stakeholder groups. It was a document drafted, negotiated and approved by states with some consultation with other groups.

Dr. Milton L Mueller Professor, School of Public Policy Georgia Institute of Technology Internet Governance Project http://internetgovernance.org/

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Dear Milton, I have noted that you have gradually recognized what we were talking about since months even at the last f2f meeting I have argued that we have been driven to that path as of 15 April 2015 when the external klawyers pushed us to that direction. It was mentioned s by some of us that we can not REDO WS1 thus must focus on impact of the prevailing situation. OFAC is one issue, some carefully studied and tailored immunity is the second issue There may be others. If people understand that we need to think of the problems that exist and finding solution or remedy for that that is already not too bad, Pls kindly do not refer to 3 or 4 .There is a silent society which supporta these 3 or 4. Regards Kavouss 2017-06-22 17:43 GMT+02:00 Mueller, Milton L <milton@gatech.edu>:

As I understand it, Director Filho (and 3 or 4 people who agreed with him) are saying three important things.

1) They fundamentally agree with the determination that California law should be used as the baseline for solutions going forward;

2) They do not think the group has sufficient basis to restrict any discussion of some form of immunity, especially when immunity need not be absolute;

3) Related to #2, they think we need to clearly identify and agree on issues (i.e., problems to be solved) before coming up with remedies, and by ruling out a discussion of any form of immunity before we have agreed on what problems we need to solve, we are reversing that sequence.

I think these are all reasonable points and point #1 shows that we are truly reaching consensus on a significant issue.

On the topic of immunity/ies, it is clear that some form of broad immunity will never get traction and many if not most of us consider it to be anathema to the accountability reforms. I also believe that some application of the US Immunities Act to ICANN is also out of the question. But if some limited and carefully scoped form of immunity appears, down the road, to be a solution to a known problem that we all agree is a problem (e.g., OFAC) then we should certainly be able to discuss it.

Hoping you have productive discussions in Johannesburg

*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org] *On Behalf Of *Benedicto Fonseca Filho *Sent:* Tuesday, June 20, 2017 1:20 PM *To:* Greg Shatan <gregshatanipc@gmail.com>; ws2-jurisdiction < ws2-jurisdiction@icann.org> *Subject:* [Ws2-jurisdiction] RES: Agenda for Jurisdiction Subgroup Meeting 20 June at 19:00 UTC

Dear all,

I would like to refer to item 4.1 ("Decision") of the agenda for today´s meeting (#36).

First of all, in regard to *procedural aspects*, may I request a clarification. Does the precedent used in WS1 in regard to "narrowing alternatives" refer to decisions emanating from discussions of the Group as a whole ("bottom-up") or made by the Co-Chairs ("top-down")? On the other hand, considering the different characteristics of the work pursued in both Work streams (focus on one single topic in WS1 vs. different streams of work in dedicated Subgroups in WS2), it would be disturbing, in any case (and a bad precedent, I must say) that the CCWG co-chairs would seek to so heavily interfere with the work of any Subgroup. In other words, do the Co-chairs have the right to substitute their views for the views of the Subgroup in the absence of a clear consensus within the Subgroup itself and also in the absence of a decision by the CCWG-plenary in support of that interference?

Secondly, in *substance*, I would not see a problem, for the sake of moving ahead discussions in the Subgroup, to accept the assumption that the Group should take California legislation as a baseline for its subsequent work (I think it might be too early to speak about actual recommendations at the present stage) and work on solutions founded on this. We can also concur that, in that light, the Subgroup should not pursue recommendations to change ICANN´s jurisdiction of incorporation or headquarters location.

We do not concur, however, that the Group should be impeded to explore, on the other hand, possibilities regarding immunity of ICANN, on the basis of the presumption that "…. there is no possibility of consensus for an immunity-based concept…". We consider the link between the two notions is flawed for three main reasons: (i) as it has been stated before by Brazil and others, it is not correct to assume that no form of immunity from domestic jurisdiction is possible for ICANN in case it remains an organisation incorporated in California, as immunity arrangements are possible under different forms (e.g the ICRC, which has domestic and international law immunities, even though it remains a private organisation governed by Swiss law). Therefore, even if we were to assume that ICANN will not change places, or that it will remain incorporated in California, this assumption does not rule out the immunity solution, which can be limited immunity rather than absolute immunity, and which can take the form, for example, of immunity from adjudication in domestic courts rather than immunity from the local laws; (ii) within the Subgroup itself, there is certainly no consensus that this avenue is entirely out of question and should be further discussed, including with the resort to proper independent legal advice; (iii) in our view, the degree of support of any such idea (which were never duly explored) could only be assessed at the end of the exercise and not lead to and early conclusion that "there is no possibility of consensus".

I therefore call for removal of the restriction on the group exploring possibilities related to immunity. In our view – and without prejudice to concerns previously expressed in regard to procedural aspects -, retaining the rest of the proposed language by the Co-chairs can be acceptable in the present circumstances as providing a way forward but this should not impede the Group to explore a possibility deemed by some members (among which, may I say, the majority of government representantives) to be crucial. Needless to say that any recommendation in that sense should not undermine other representatives positions and interests. We are convinced this would be indeed possible but to get there we need to pursue substantive discussions, benefitting of the narrower focus proposed by the Co-Chairs in regard to ICANN´s jurisdiction of incorporation and headquarters.

May I conclude by recalling that the Subgroup had previously agreed to (i) identify issues before it goes on to explore remedies; (ii) look at proposed remedies; (iii) not to discuss a remedy until an issue has been identified that requires discussion of that remedy. The co-Chair´s "Decision" inverts that logic by establishing an ex-ante position in abstract. We agree that in the present circumstances to continue discussion changes of ICANN´s jurisdiction of incorporation and headquarters might not be helpuful but a different thing would be to rule out discussion on alternatives that might lead to a satisfactory set of rules from the perspective of many governments while being acceptable to others. That approach would be detrimental to the whole process as it might alienate many participants from discussion, including, possibly, the Brazilian government.

In my view, independently of the outcomes of this afternoon´s call, the whole subject should be discussed at the CCWG plenary F2F meeting next Sunday.

Best regards,

Benedicto

*Benedicto Fonseca Filho*

*Director, Department of Scientific and Technological Themes*

*Ministry of External Relations*

*BRAZIL*

*Phone: (+5561) 2030-9164 <+55%2061%202030-9164>/9165*

------------------------------

*De:* ws2-jurisdiction-bounces@icann.org [ws2-jurisdiction-bounces@ icann.org] em nome de Greg Shatan [gregshatanipc@gmail.com] *Enviado:* terça-feira, 20 de junho de 2017 3:06 *Para:* ws2-jurisdiction *Assunto:* [Ws2-jurisdiction] Agenda for Jurisdiction Subgroup Meeting 20 June at 19:00 UTC

All,

The agenda for the upcoming meeting is attached. Materials other than Google Drive documents are also attached. Google drive documents will be downloaded and circulated nearer to the meeting.

I particularly encourage members to contribute to the newly-created Proposed Issues List:

https://docs.google.com/spreadsheets/d/1zAMj3Oz8TEqbjauOyqt09Ef- 1ada9TrC7i60Mk-7al4/edit?usp=sharing.

It's important that we collect proposed issues that have already been brought up in various documents and put them in one place.

I look forward to our upcoming meeting.

Greg

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