I would like to respond to Greg's suggestion in the call earlier this week. On the call we discussed the meaning of gap analysis and its possible implications. Greg asked if Pedro and I would separately note on list the points we each had been attempting to make on the call. What follows are my personal views. The sub-team was addressing the phrase in paragraph 30 of Annex 12 of the CCWG Final Report asking that we give consideration to, "Confirming and assessing the gap analysis, clarifying all concerns regarding the multi-layer jurisdiction issue." I was/am of the view that the concept of "confirming" recognized that WS1 had in effect performed a gap analysis - the potential gap being whether the accountability measures that were proposed could or could not be applied to, and ultimately enforced against, ICANN. For example, when we decided in WS1 that we wanted the ability to remove board members we asked Sidley/Adler if that was possible within the California form we were analyzing - designator, not membership. If the answer had been that we could not then a gap would have existed. If it was that we could then we asked counsel to put the provision into appropriate legal language. We did the same for all accountability measures we wished to put in place, specifically revising the ICANN Mission, enhancing the IRP, and giving the community power/right to: · Reject ICANN budgets, IANA budgets, or strategic/operating plans; · Reject changes to ICANN's standard bylaws; · Approve changes to new fundamental bylaws, Articles, and ICANN's sale or disposition; · Remove a director; · Recall the entire board; · Initiate binding IRP; · Reject ICANN Board decisions relating to reviews of the IANA functions, including the triggering of Post-Transition IANA separation; and · Right of inspection, investigation. That, to me, was a gap analysis. In fact, Annex 12, paragraph 26, noted that WS1 might well have encountered gaps along the way - it recognized the fact that California law does have limits with respect to accountability mechanisms that might be imposed on ICANN. It is that recognition in paragraph 26 that admits a possible gap that we in the sub-team are meant to assess, as I see it. It is also important to note that our remit to confirm/assess the gap analysis is given to us with two qualifiers in paragraph 30: · First, that the main issues that we need to investigate in WS2 "...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:" (emphasis added) and · Second, our consideration in WS2 "will focus on the settlement of dispute jurisdiction issues and include..." the act of confirming/assessing the gap analysis that we are engaged in, along with identifying potential alternatives. I underscored the word "necessarily" in the first qualifier above because it appears consistent with the notion of being contingent - on us closing any potential gap. Our sub-team job is relatively straightforward: have we (WS1) managed to avoid or close such gaps; in other words, are the accountability mechanisms we chose applicable and enforceable? If we have succeeded then I submit that our work is limited to analyzing jurisdiction only insofar as it relates to settlement of disputes. And that is why our remit to "identify" potential alternatives, also bounded by the two qualifiers, is to examine potential alternatives with our focus being on settlement of dispute jurisdiction. During the call, Jorge listed in the chat certain portions from the CCWG Second Report mentioning gap analysis (addressing such things as ability to sue/be sued to enforce bylaws and other accountability mechanisms; binding-ness of IRP decisions, and more) and which called for more analysis. I believe that further analysis was done and reflected in the Final Report, which gave us the language we are now addressing. It is important to look at the sub-team work in context. In my view, incorporation in California has one distinct advantage over other locations as concerns ICANN - for over 18 years it has worked. It would be imprudent to consider a location change absent a material problem stemming from jurisdiction that is incapable of resolution. Moreover, consideration of an alternative for ICANN's location would entail, per jurisdiction considered, roughly the same investment in time and lawyers' attention that WS1 expended on legal fees. If this sub-team intends to go down that path, something I recommend against, then we need to make sure that we have budget to support such efforts. So in my view it makes practical sense as well as analytical sense (as performed by the CCWG) for the location issue to be out of scope in WS2 other than as it relates, if at all, to settlement of disputes. As Göran Marby said in last week's hearing , ICANN is committed to remaining domiciled in the US, where it has operated successfully and, among other things, put in place thousands of contracts. David David McAuley International Policy Manager Verisign Inc. 703-948-4154
David Thanks for this remarkable and useful summary of your views, which I am in overall agreement with. Like others who have responded, I reviewed our legal work in WS1 with a fairly close eye and I saw no gaps in the accountability measures we proposed at least none that related in any way to jurisdictional issues. Perhaps we can focus on how our jurisdiction influences internal operational issues as we are tasked . Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com My PGP Key: <http://redbranchconsulting.com/who-we-are/public-pgp-key/> http://redbranchconsulting.com/who-we-are/public-pgp-key/ From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of McAuley, David Sent: Saturday, September 24, 2016 10:00 AM To: ws2-jurisdiction@icann.org Subject: [Ws2-jurisdiction] More on gap analysis I would like to respond to Gregs suggestion in the call earlier this week. On the call we discussed the meaning of gap analysis and its possible implications. Greg asked if Pedro and I would separately note on list the points we each had been attempting to make on the call. What follows are my personal views. The sub-team was addressing the phrase in paragraph 30 of Annex 12 of the CCWG Final Report asking that we give consideration to, Confirming and assessing the gap analysis, clarifying all concerns regarding the multi-layer jurisdiction issue. I was/am of the view that the concept of confirming recognized that WS1 had in effect performed a gap analysis the potential gap being whether the accountability measures that were proposed could or could not be applied to, and ultimately enforced against, ICANN. For example, when we decided in WS1 that we wanted the ability to remove board members we asked Sidley/Adler if that was possible within the California form we were analyzing - designator, not membership. If the answer had been that we could not then a gap would have existed. If it was that we could then we asked counsel to put the provision into appropriate legal language. We did the same for all accountability measures we wished to put in place, specifically revising the ICANN Mission, enhancing the IRP, and giving the community power/right to: * Reject ICANN budgets, IANA budgets, or strategic/operating plans; * Reject changes to ICANNs standard bylaws; * Approve changes to new fundamental bylaws, Articles, and ICANNs sale or disposition; * Remove a director; * Recall the entire board; * Initiate binding IRP; * Reject ICANN Board decisions relating to reviews of the IANA functions, including the triggering of Post-Transition IANA separation; and * Right of inspection, investigation. That, to me, was a gap analysis. In fact, Annex 12, paragraph 26, noted that WS1 might well have encountered gaps along the way it recognized the fact that California law does have limits with respect to accountability mechanisms that might be imposed on ICANN. It is that recognition in paragraph 26 that admits a possible gap that we in the sub-team are meant to assess, as I see it. It is also important to note that our remit to confirm/assess the gap analysis is given to us with two qualifiers in paragraph 30: * First, that the main issues that we need to investigate in WS2 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: (emphasis added) and * Second, our consideration in WS2 will focus on the settlement of dispute jurisdiction issues and include the act of confirming/assessing the gap analysis that we are engaged in, along with identifying potential alternatives. I underscored the word necessarily in the first qualifier above because it appears consistent with the notion of being contingent on us closing any potential gap. Our sub-team job is relatively straightforward: have we (WS1) managed to avoid or close such gaps; in other words, are the accountability mechanisms we chose applicable and enforceable? If we have succeeded then I submit that our work is limited to analyzing jurisdiction only insofar as it relates to settlement of disputes. And that is why our remit to identify potential alternatives, also bounded by the two qualifiers, is to examine potential alternatives with our focus being on settlement of dispute jurisdiction. During the call, Jorge listed in the chat certain portions from the CCWG Second Report mentioning gap analysis (addressing such things as ability to sue/be sued to enforce bylaws and other accountability mechanisms; binding-ness of IRP decisions, and more) and which called for more analysis. I believe that further analysis was done and reflected in the Final Report, which gave us the language we are now addressing. It is important to look at the sub-team work in context. In my view, incorporation in California has one distinct advantage over other locations as concerns ICANN for over 18 years it has worked. It would be imprudent to consider a location change absent a material problem stemming from jurisdiction that is incapable of resolution. Moreover, consideration of an alternative for ICANNs location would entail, per jurisdiction considered, roughly the same investment in time and lawyers attention that WS1 expended on legal fees. If this sub-team intends to go down that path, something I recommend against, then we need to make sure that we have budget to support such efforts. So in my view it makes practical sense as well as analytical sense (as performed by the CCWG) for the location issue to be out of scope in WS2 other than as it relates, if at all, to settlement of disputes. As Göran Marby said in last weeks hearing , ICANN is committed to remaining domiciled in the US, where it has operated successfully and, among other things, put in place thousands of contracts. David David McAuley International Policy Manager Verisign Inc. 703-948-4154
As others have noted - this makes a lot of sense. I very much agree with the following: /So in my view it makes practical sense as well as analytical sense (as performed by the CCWG) for the location issue to be out of scope in WS2 other than as it relates, if at all, to settlement of disputes.// / I also noted as such in my responses to Greg's e-mail of the 19th entitled: [Ws2-jurisdiction] Items for CCWG-Plenary: (1) Place of Incorporation Matthew On 24/09/2016 09:59, McAuley, David wrote:
I would like to respond to Greg’s suggestion in the call earlier this week. On the call we discussed the meaning of gap analysis and its possible implications. Greg asked if Pedro and I would separately note on list the points we each had been attempting to make on the call. What follows are my personal views.
The sub-team was addressing the phrase in paragraph 30 of Annex 12 of the CCWG Final Report asking that we give consideration to, “Confirming and assessing the gap analysis, clarifying all concerns regarding the multi-layer jurisdiction issue.”
I was/am of the view that the concept of “confirming” recognized that WS1 had in effect performed a gap analysis – the potential gap being whether the accountability measures that were proposed could or could not be applied to, and ultimately enforced against, ICANN.
For example, when we decided in WS1 that we wanted the ability to remove board members we asked Sidley/Adler if that was possible within the California form we were analyzing - designator, not membership. If the answer had been that we could not then a gap would have existed. If it was that we could then we asked counsel to put the provision into appropriate legal language.
We did the same for all accountability measures we wished to put in place, specifically revising the ICANN Mission, enhancing the IRP, and giving the community power/right to:
·Reject ICANN budgets, IANA budgets, or strategic/operating plans;
·Reject changes to ICANN’s standard bylaws;
·Approve changes to new fundamental bylaws, Articles, and ICANN’s sale or disposition;
·Remove a director;
·Recall the entire board;
·Initiate binding IRP;
·Reject ICANN Board decisions relating to reviews of the IANA functions, including the triggering of Post-Transition IANA separation; and
·Right of inspection, investigation.
That, to me, was a gap analysis.
In fact, Annex 12, paragraph 26, noted that WS1 might well have encountered gaps along the way – it recognized the fact that California law does have limits with respect to accountability mechanisms that might be imposed on ICANN. It is that recognition in paragraph 26 that admits a possible gap that we in the sub-team are meant to assess, as I see it.
It is also important to note that our remit to confirm/assess the gap analysis is given to us with two qualifiers in paragraph 30:
·First, that the main issues that we need to investigate in WS2 “…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:” (emphasis added) and
·Second, our consideration in WS2 “will focus on the settlement of dispute jurisdiction issues and include…” the act of confirming/assessing the gap analysis that we are engaged in, along with identifying potential alternatives.
I underscored the word “necessarily” in the first qualifier above because it appears consistent with the notion of being contingent – on us closing any potential gap. Our sub-team job is relatively straightforward: have we (WS1) managed to avoid or close such gaps; in other words, are the accountability mechanisms we chose applicable and enforceable? If we have succeeded then I submit that our work is limited to analyzing jurisdiction only insofar as it relates to settlement of disputes.
And that is why our remit to “identify” potential alternatives, also bounded by the two qualifiers, is to examine potential alternatives with our focus being on settlement of dispute jurisdiction.
During the call, Jorge listed in the chat certain portions from the CCWG Second Report mentioning gap analysis (addressing such things as ability to sue/be sued to enforce bylaws and other accountability mechanisms; binding-ness of IRP decisions, and more) and which called for more analysis. I believe that further analysis was done and reflected in the Final Report, which gave us the language we are now addressing.
It is important to look at the sub-team work in context. In my view, incorporation in California has one distinct advantage over other locations as concerns ICANN – for over 18 years it has worked. It would be imprudent to consider a location change absent a material problem stemming from jurisdiction that is incapable of resolution.
Moreover, consideration of an alternative for ICANN’s location would entail, per jurisdiction considered, roughly the same investment in time and lawyers’ attention that WS1 expended on legal fees. If this sub-team intends to go down that path, something I recommend against, then we need to make sure that we have budget to support such efforts.
So in my view it makes practical sense as well as analytical sense (as performed by the CCWG) for the location issue to be out of scope in WS2 other than as it relates, if at all, to settlement of disputes. As Göran Marby said in last week’s hearing , ICANN is committed to remaining domiciled in the US, where it has operated successfully and, among other things, put in place thousands of contracts.
David
David McAuley
International Policy Manager
Verisign Inc.
703-948-4154
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
-- -------------- Matthew Shears Global Internet Policy and Human Rights Center for Democracy & Technology (CDT) + 44 771 2472987
Dear David and colleagues, Please find below the reasons why I believe that a gap analysis should be done within WS2: · The idea of a gap analysis emerged during jurisdiction related discussions prior to the CCWG-Accountability meeting in Istambul (March/2015). In an email a week before the meeting (March 201th), I wrote: "[...] 3) The CCWG has agreed on a working methodology which makes a clear separation between requirements and implementation. For Brazil, 'requirements' are understood as those accountability objectives required by the community and 'implementation' are the specific mechanisms that needs to be in place in order to accomplish the requirements previously defined. While specifying those mechanisms, the CCWG should also clearly indicate those cases when requirements are partially met, either because the group wasn't able to conceive a better structured process to that date or because ICANN's current legal presence imposes certain restrictions. This kind of clarity is in line with principle of 'transparency' under which this group operates and will be essential for the following work of the CCWG. 4) For the reason above, the legal analysis to be provided by the external law firm and the expert's group should already include considerations on jurisdictional limitations and options. Again: in that way, the CCWG will be transparent by showing the eventual limitations of its recommendations and will be able to provide important input for WS2 or other future accountability recommendation work." · Following this initial debate, a formal discussion (well remembered by Jorge Cancio) was led by Mathieu Weill during July 2015 and concluded, inter alia, in what was called a "initial gap assessment" (document attached): "CCWG-Accountability found the association of all its requirement under California Law possible, but challenging, and requiring some forms of trade-offs, especially with regards to the Community empowerment model" "Some concerns were raised with regards to the possibility that IRP decisions might prevail over local jurisdiction decisions. [TO BE REFINED ONCE WE FINALISE IRP PROPOSAL]" · The conclusions above were made based on requirements agreed by that time and clearly indicate that the work should be resumed at a later stage. Although the work of the CCWG evolved and requirements were further enhanced, there is no material evidence that this exercise was resumed before or right after the CCWG concluded its WS1 work. · So far, what we have seen were statements made merely on personal capacity indicating that there are no gaps between accountability requirements and implementation. A formal CCWG process, involving the whole group or even a subgroup of members/participant, was never conducted. · Further to that, I couldn't find any evidence that even the contracted law firms have formally made such a gap assessment. · I understand that with the variety of information we have at our disposal (CCWG WS1 report, CCWG mailing archive, law firm memos, etc) some colleagues are tempted to jump into conclusions about the ability of California non-profit law to conform to the CCWG requirements. However, given that this is not a straightforward exercise and stakeholders from distinct geographies and stakeholder groups have diverse viewpoints about it, it is important that a formal and impartial effort is made so it can be considered legitimate. An informal gap analysis solely based on individual assessments is not likely to be recognized as a relevant input to the community. 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 De: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] Em nome de McAuley, David Enviada em: sábado, 24 de setembro de 2016 11:00 Para: ws2-jurisdiction@icann.org Assunto: [Ws2-jurisdiction] More on gap analysis I would like to respond to Greg's suggestion in the call earlier this week. On the call we discussed the meaning of gap analysis and its possible implications. Greg asked if Pedro and I would separately note on list the points we each had been attempting to make on the call. What follows are my personal views. The sub-team was addressing the phrase in paragraph 30 of Annex 12 of the CCWG Final Report asking that we give consideration to, "Confirming and assessing the gap analysis, clarifying all concerns regarding the multi-layer jurisdiction issue." I was/am of the view that the concept of "confirming" recognized that WS1 had in effect performed a gap analysis - the potential gap being whether the accountability measures that were proposed could or could not be applied to, and ultimately enforced against, ICANN. For example, when we decided in WS1 that we wanted the ability to remove board members we asked Sidley/Adler if that was possible within the California form we were analyzing - designator, not membership. If the answer had been that we could not then a gap would have existed. If it was that we could then we asked counsel to put the provision into appropriate legal language. We did the same for all accountability measures we wished to put in place, specifically revising the ICANN Mission, enhancing the IRP, and giving the community power/right to: · Reject ICANN budgets, IANA budgets, or strategic/operating plans; · Reject changes to ICANN's standard bylaws; · Approve changes to new fundamental bylaws, Articles, and ICANN's sale or disposition; · Remove a director; · Recall the entire board; · Initiate binding IRP; · Reject ICANN Board decisions relating to reviews of the IANA functions, including the triggering of Post-Transition IANA separation; and · Right of inspection, investigation. That, to me, was a gap analysis. In fact, Annex 12, paragraph 26, noted that WS1 might well have encountered gaps along the way - it recognized the fact that California law does have limits with respect to accountability mechanisms that might be imposed on ICANN. It is that recognition in paragraph 26 that admits a possible gap that we in the sub-team are meant to assess, as I see it. It is also important to note that our remit to confirm/assess the gap analysis is given to us with two qualifiers in paragraph 30: · First, that the main issues that we need to investigate in WS2 "...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:" (emphasis added) and · Second, our consideration in WS2 "will focus on the settlement of dispute jurisdiction issues and include..." the act of confirming/assessing the gap analysis that we are engaged in, along with identifying potential alternatives. I underscored the word "necessarily" in the first qualifier above because it appears consistent with the notion of being contingent - on us closing any potential gap. Our sub-team job is relatively straightforward: have we (WS1) managed to avoid or close such gaps; in other words, are the accountability mechanisms we chose applicable and enforceable? If we have succeeded then I submit that our work is limited to analyzing jurisdiction only insofar as it relates to settlement of disputes. And that is why our remit to "identify" potential alternatives, also bounded by the two qualifiers, is to examine potential alternatives with our focus being on settlement of dispute jurisdiction. During the call, Jorge listed in the chat certain portions from the CCWG Second Report mentioning gap analysis (addressing such things as ability to sue/be sued to enforce bylaws and other accountability mechanisms; binding-ness of IRP decisions, and more) and which called for more analysis. I believe that further analysis was done and reflected in the Final Report, which gave us the language we are now addressing. It is important to look at the sub-team work in context. In my view, incorporation in California has one distinct advantage over other locations as concerns ICANN - for over 18 years it has worked. It would be imprudent to consider a location change absent a material problem stemming from jurisdiction that is incapable of resolution. Moreover, consideration of an alternative for ICANN's location would entail, per jurisdiction considered, roughly the same investment in time and lawyers' attention that WS1 expended on legal fees. If this sub-team intends to go down that path, something I recommend against, then we need to make sure that we have budget to support such efforts. So in my view it makes practical sense as well as analytical sense (as performed by the CCWG) for the location issue to be out of scope in WS2 other than as it relates, if at all, to settlement of disputes. As Göran Marby said in last week's hearing , ICANN is committed to remaining domiciled in the US, where it has operated successfully and, among other things, put in place thousands of contracts. David David McAuley International Policy Manager Verisign Inc. 703-948-4154
Now with the attachment ...and I obviously meant March 20th 2015 :-) 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 De: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] Em nome de Pedro Ivo Ferraz da Silva Enviada em: segunda-feira, 26 de setembro de 2016 13:08 Para: 'McAuley, David'; ws2-jurisdiction@icann.org Assunto: [Ws2-jurisdiction] RES: More on gap analysis Dear David and colleagues, Please find below the reasons why I believe that a gap analysis should be done within WS2: · The idea of a gap analysis emerged during jurisdiction related discussions prior to the CCWG-Accountability meeting in Istambul (March/2015). In an email a week before the meeting (March 201th), I wrote: "[...] 3) The CCWG has agreed on a working methodology which makes a clear separation between requirements and implementation. For Brazil, 'requirements' are understood as those accountability objectives required by the community and 'implementation' are the specific mechanisms that needs to be in place in order to accomplish the requirements previously defined. While specifying those mechanisms, the CCWG should also clearly indicate those cases when requirements are partially met, either because the group wasn't able to conceive a better structured process to that date or because ICANN's current legal presence imposes certain restrictions. This kind of clarity is in line with principle of 'transparency' under which this group operates and will be essential for the following work of the CCWG. 4) For the reason above, the legal analysis to be provided by the external law firm and the expert's group should already include considerations on jurisdictional limitations and options. Again: in that way, the CCWG will be transparent by showing the eventual limitations of its recommendations and will be able to provide important input for WS2 or other future accountability recommendation work." · Following this initial debate, a formal discussion (well remembered by Jorge Cancio) was led by Mathieu Weill during July 2015 and concluded, inter alia, in what was called a "initial gap assessment" (document attached): "CCWG-Accountability found the association of all its requirement under California Law possible, but challenging, and requiring some forms of trade-offs, especially with regards to the Community empowerment model" "Some concerns were raised with regards to the possibility that IRP decisions might prevail over local jurisdiction decisions. [TO BE REFINED ONCE WE FINALISE IRP PROPOSAL]" · The conclusions above were made based on requirements agreed by that time and clearly indicate that the work should be resumed at a later stage. Although the work of the CCWG evolved and requirements were further enhanced, there is no material evidence that this exercise was resumed before or right after the CCWG concluded its WS1 work. · So far, what we have seen were statements made merely on personal capacity indicating that there are no gaps between accountability requirements and implementation. A formal CCWG process, involving the whole group or even a subgroup of members/participant, was never conducted. · Further to that, I couldn't find any evidence that even the contracted law firms have formally made such a gap assessment. · I understand that with the variety of information we have at our disposal (CCWG WS1 report, CCWG mailing archive, law firm memos, etc) some colleagues are tempted to jump into conclusions about the ability of California non-profit law to conform to the CCWG requirements. However, given that this is not a straightforward exercise and stakeholders from distinct geographies and stakeholder groups have diverse viewpoints about it, it is important that a formal and impartial effort is made so it can be considered legitimate. An informal gap analysis solely based on individual assessments is not likely to be recognized as a relevant input to the community. 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 De: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] Em nome de McAuley, David Enviada em: sábado, 24 de setembro de 2016 11:00 Para: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Assunto: [Ws2-jurisdiction] More on gap analysis I would like to respond to Greg's suggestion in the call earlier this week. On the call we discussed the meaning of gap analysis and its possible implications. Greg asked if Pedro and I would separately note on list the points we each had been attempting to make on the call. What follows are my personal views. The sub-team was addressing the phrase in paragraph 30 of Annex 12 of the CCWG Final Report asking that we give consideration to, "Confirming and assessing the gap analysis, clarifying all concerns regarding the multi-layer jurisdiction issue." I was/am of the view that the concept of "confirming" recognized that WS1 had in effect performed a gap analysis - the potential gap being whether the accountability measures that were proposed could or could not be applied to, and ultimately enforced against, ICANN. For example, when we decided in WS1 that we wanted the ability to remove board members we asked Sidley/Adler if that was possible within the California form we were analyzing - designator, not membership. If the answer had been that we could not then a gap would have existed. If it was that we could then we asked counsel to put the provision into appropriate legal language. We did the same for all accountability measures we wished to put in place, specifically revising the ICANN Mission, enhancing the IRP, and giving the community power/right to: · Reject ICANN budgets, IANA budgets, or strategic/operating plans; · Reject changes to ICANN's standard bylaws; · Approve changes to new fundamental bylaws, Articles, and ICANN's sale or disposition; · Remove a director; · Recall the entire board; · Initiate binding IRP; · Reject ICANN Board decisions relating to reviews of the IANA functions, including the triggering of Post-Transition IANA separation; and · Right of inspection, investigation. That, to me, was a gap analysis. In fact, Annex 12, paragraph 26, noted that WS1 might well have encountered gaps along the way - it recognized the fact that California law does have limits with respect to accountability mechanisms that might be imposed on ICANN. It is that recognition in paragraph 26 that admits a possible gap that we in the sub-team are meant to assess, as I see it. It is also important to note that our remit to confirm/assess the gap analysis is given to us with two qualifiers in paragraph 30: · First, that the main issues that we need to investigate in WS2 "...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:" (emphasis added) and · Second, our consideration in WS2 "will focus on the settlement of dispute jurisdiction issues and include..." the act of confirming/assessing the gap analysis that we are engaged in, along with identifying potential alternatives. I underscored the word "necessarily" in the first qualifier above because it appears consistent with the notion of being contingent - on us closing any potential gap. Our sub-team job is relatively straightforward: have we (WS1) managed to avoid or close such gaps; in other words, are the accountability mechanisms we chose applicable and enforceable? If we have succeeded then I submit that our work is limited to analyzing jurisdiction only insofar as it relates to settlement of disputes. And that is why our remit to "identify" potential alternatives, also bounded by the two qualifiers, is to examine potential alternatives with our focus being on settlement of dispute jurisdiction. During the call, Jorge listed in the chat certain portions from the CCWG Second Report mentioning gap analysis (addressing such things as ability to sue/be sued to enforce bylaws and other accountability mechanisms; binding-ness of IRP decisions, and more) and which called for more analysis. I believe that further analysis was done and reflected in the Final Report, which gave us the language we are now addressing. It is important to look at the sub-team work in context. In my view, incorporation in California has one distinct advantage over other locations as concerns ICANN - for over 18 years it has worked. It would be imprudent to consider a location change absent a material problem stemming from jurisdiction that is incapable of resolution. Moreover, consideration of an alternative for ICANN's location would entail, per jurisdiction considered, roughly the same investment in time and lawyers' attention that WS1 expended on legal fees. If this sub-team intends to go down that path, something I recommend against, then we need to make sure that we have budget to support such efforts. So in my view it makes practical sense as well as analytical sense (as performed by the CCWG) for the location issue to be out of scope in WS2 other than as it relates, if at all, to settlement of disputes. As Göran Marby said in last week's hearing , ICANN is committed to remaining domiciled in the US, where it has operated successfully and, among other things, put in place thousands of contracts. David David McAuley International Policy Manager Verisign Inc. 703-948-4154
I think Pedro makes important points. In particular, I see a compatibility between his conclusion: * I understand that with the variety of information we have at our disposal (CCWG WS1 report, CCWG mailing archive, law firm memos, etc) some colleagues are tempted to jump into conclusions about the ability of California non-profit law to conform to the CCWG requirements. However, given that this is not a straightforward exercise and stakeholders from distinct geographies and stakeholder groups have diverse viewpoints about it, it is important that a formal and impartial effort is made so it can be considered legitimate. An informal gap analysis solely based on individual assessments is not likely to be recognized as a relevant input to the community. ...and the conclusion of Steve De Bianco that * "This WS2 team should look at that gap analysis and confirm the conclusion. If there are enforceability gaps noted by our lawyers, we should analyze whether those gaps could be closed using ANY form of incorporation in ANY jurisdiction." In other words, even though WS 1 suggests that there are no major or glaring gaps, this WS 2 needs to review and confirm (or find holes in) that initial (hasty) gap analysis. I think that is a procedure we can all agree on. Although for efficiency's sake I would not want to evaluate "any/every" jurisdiction but only those put forward by informed people as possible alternatives. --MM
It's unfortunate that we even have to consider this: if the community had insisted on the member model in fall 2015 there would be no possible gap between CCWG requirements and California law. But that is water under a bridge that we have burned behind us. However, the notion that we can pick and choose from various jurisdictions to address supposed gaps between some part of the CCWG requirements and CA law is simplistic. ICANN can only be incorporated in one jurisdiction - there can be no "Chinese menu" approach to selecting this jurisdiction for one function and that jurisdiction for another. If a purported gap between a particular CCWG requirement and CA law is identified one cannot simply say that the law of Country X would better suit that function - an analysis must be done of the fit between the entirety of Country X's laws and all the CCWG requirements to see if the totality of the fit is better than California (which is doubtful, as our outside counsel have already advised during WS1 that the designator model accountability framework works within the context of CA law, as it was designed to do). One must also consider the reputation of Country X's judicial system for efficiency and fair judgments under law, as well as whether its legislature might be inclined to alter some aspect of its law if ICANN moves to incorporate there. One also has to consider that the two new elements of the ICANN structure - the Empowered Community and the PTI - are required to be incorporated in California law by new fundamental Bylaws. So one would also need to analyze what gaps might result from having them interact with an ICANN that is no longer incorporated in CA. Let's be realistic about what is really required to be analyzed in even contemplating moving ICANN out of California. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Mueller, Milton L Sent: Monday, September 26, 2016 12:18 PM To: Pedro Ivo Ferraz da Silva; 'McAuley, David'; ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] More on gap analysis I think Pedro makes important points. In particular, I see a compatibility between his conclusion: * I understand that with the variety of information we have at our disposal (CCWG WS1 report, CCWG mailing archive, law firm memos, etc) some colleagues are tempted to jump into conclusions about the ability of California non-profit law to conform to the CCWG requirements. However, given that this is not a straightforward exercise and stakeholders from distinct geographies and stakeholder groups have diverse viewpoints about it, it is important that a formal and impartial effort is made so it can be considered legitimate. An informal gap analysis solely based on individual assessments is not likely to be recognized as a relevant input to the community. ...and the conclusion of Steve De Bianco that * "This WS2 team should look at that gap analysis and confirm the conclusion. If there are enforceability gaps noted by our lawyers, we should analyze whether those gaps could be closed using ANY form of incorporation in ANY jurisdiction." In other words, even though WS 1 suggests that there are no major or glaring gaps, this WS 2 needs to review and confirm (or find holes in) that initial (hasty) gap analysis. I think that is a procedure we can all agree on. Although for efficiency's sake I would not want to evaluate "any/every" jurisdiction but only those put forward by informed people as possible alternatives. --MM ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7797 / Virus Database: 4656/13076 - Release Date: 09/24/16
participants (6)
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matthew shears -
McAuley, David -
Mueller, Milton L -
Paul Rosenzweig -
Pedro Ivo Ferraz da Silva -
Phil Corwin