Jurisdiction Subgroup Members, As explained by Staff at our last meeting on 9 August, we have until *11 October* to submit a draft set of recommendations to the Plenary for consideration as a first reading if any such recommendations are to be accepted by the Plenary, published for Public Consultation and included in the Final WS2 Report. In other words, we have about *8 weeks* to develop a draft set of recommendations and come to consensus on these. Obviously, given this time-frame, we have to accept that we will not be able to address all issues. In fact, the only realistic approach, if we want to deliver any recommendations, is to pick a handful of issues (2 to 4) on which we can all agree and for which we believe we can propose recommendations that will achieve consensus. I remain optimistic that we can do this if we can agree, meaning everyone will have to compromise, to select this limited number of issues over the next very few weeks and work diligently at meetings and on the list to develop recommendations for these. To reach this objective I would propose the following approach: - *Each participant should pick one issue which they believe is in scope for us and post that issue to the list prior to our meeting of 23 August. More specifically:* - *Issues should be very specific -- avoid open-ended, abstract or omnibus issues* - *Issue description should be succinct -- 12 standard lines maximum* - *Proposed solutions – if you have a possible solution or recommendation which should be considered, please include it (again, being succinct).* - *Put your issue in a new email (not a reply), with the subject ISSUE: [name of issue]* - *The sooner, the better* I look forward to discussing this proposal at our next meeting of *16 August* and I would encourage participants to comment on this proposal in response to this email prior to that meeting. Greg
Dear Greg and all, Here is my feedback: - The “.swiss” input into the questionnaire still stands, which identifies issues and also some possible solutions. (see attached) - In addition, I would like to recall the following inputs I made to the “influence document” (which I found here: https://community.icann.org/display/WEIA/Jurisdiction): “ICANNs main agreements (with registries and registrars) are generally silent on applicable law. This silence may be construed differently by different courts in different jurisdictions, although I feel there is a natural tendency in courts to apply its own laws if the agreement is silent and there are internal/national rules that tilt into a certain direction. This means that the choice of applicable law may be limited nowadays in practice, which in principle may disadvantage stakeholders not familiar with the implicit choice of law. At the same time, registry agreements for IGO/Governmental entities have some flexibilities built in as to applicable law or, to be more precise, as to conflicts arising from diverging obligations coming from the agreement with ICANN and the international law obligations. This is reflected for instance in section 7.16 of the model registry agreement. This flexibility could be extended to other registries confronted with similar conflicts, not only with international law, but also when confronted with conflicts stemming from national law. The flexibility could also take the form of a more wider recognition of freedom to choose the applicable law for the parties in the main agreements ICANN has. The material you mention has, at least at first glance, some relevant rules of choice of law that in a foreigners eye seem to clearly tilt for the "forum" jurisdiction (for instance the "government interest analysis test"). But, what are the rules followed by California? I see that for “contracts” (most relevant to contracting parties) the second restatement is followed apparently which provides the following: "d.Contract: In the first instance, the courts must give effect to the law chosen by the parties. In the absence of any such agreement, the courts are directed to the “significant relationship” test of Section 6. Restatement (Second) of Conflict of Laws § 188. The contacts to take into account in determining those principles are: i.the place of contracting, ii.the place of negotiation of the contract, iii.the place of performance, iv.the location of the subject matter of the contract, and v.the domicile, residence, nationality, place of incorporation and place of business of the parties." It would be interesting to know how these contact points are construed in the relation between ICANN and its contracted parties, i.e. what the place of contracting is, the place of negotiation, place of performance, etc. - how they are intended to be construed by the contracting parties and what have been the actual analysis (if any) in the cases had up to today in disputes. For "torts" (I guess including cases brought for damages by materially harmed parties that are not contractually bound to ICANN) the mentioned "governmental interest analysis" seems to apply ("California uses this test in determining the law applicable to tort claims."). This test means that "the law of the forum is presumed to apply unless a party demonstrates otherwise." I feel this could be seen as a significant tilt. Experiences on how these rules (both on contracts and torts) apply in practice could be of interest and could be contrasted with ICANN, and registries and registrars (and other parties) based in other jurisdictions. That fact-finding exercise would also allow us to see whether and in what instances that "tilting" occurs. A similar fact-finding should be done for what “applicable law” applies in internal mechanisms (such as the IRP). 2) Making sure that the hearings of the IRP are location-neutral 3) In the “multiple layers” doc, under “venue”, I had identified the following issues and solutions: “Under venue or venues: multiplicity of venues and of providers of dispute resolution mechanisms (be it judicial or arbitration). Flexibilities as to standards, election of providers, language of proceedings, freedom to choose for the parties.]“ and “I guess that under “venue” we would need to consider the IRP and other internal redress mechanisms and how well they address the needs of a global stakeholder community, in terms of their composition, the language of proceedings, the venue(s), the providers, etc.].” I may have missed other important points made before, but I’m sure Secretariat could help in collating all our essential inputs. Kind regards Jorge Von: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] Im Auftrag von Greg Shatan Gesendet: Samstag, 12. August 2017 01:13 An: ws2-jurisdiction <ws2-jurisdiction@icann.org> Cc: Thomas Rickert <thomas@rickert.net> Betreff: [Ws2-jurisdiction] Jurisdiction Subgroup: The Path Forward Jurisdiction Subgroup Members, As explained by Staff at our last meeting on 9 August, we have until 11 October to submit a draft set of recommendations to the Plenary for consideration as a first reading if any such recommendations are to be accepted by the Plenary, published for Public Consultation and included in the Final WS2 Report. In other words, we have about 8 weeks to develop a draft set of recommendations and come to consensus on these. Obviously, given this time-frame, we have to accept that we will not be able to address all issues. In fact, the only realistic approach, if we want to deliver any recommendations, is to pick a handful of issues (2 to 4) on which we can all agree and for which we believe we can propose recommendations that will achieve consensus. I remain optimistic that we can do this if we can agree, meaning everyone will have to compromise, to select this limited number of issues over the next very few weeks and work diligently at meetings and on the list to develop recommendations for these. To reach this objective I would propose the following approach: * Each participant should pick one issue which they believe is in scope for us and post that issue to the list prior to our meeting of 23 August. More specifically: * Issues should be very specific -- avoid open-ended, abstract or omnibus issues * Issue description should be succinct -- 12 standard lines maximum * Proposed solutions – if you have a possible solution or recommendation which should be considered, please include it (again, being succinct). * Put your issue in a new email (not a reply), with the subject ISSUE: [name of issue] * The sooner, the better I look forward to discussing this proposal at our next meeting of 16 August and I would encourage participants to comment on this proposal in response to this email prior to that meeting. Greg
dEAR gREG, I have already raised in two communications few questions which are still valid, even though some people ,in a recent peer communication has surprisingly told me believe that I have not raised any question at all during the entire period, which is unfair to say so as I have been very active and raised several questions .However, that is their views for which I do not care. . I may send some explanations in regard with some of them if the time permits. Regards Kavouss On Mon, Aug 14, 2017 at 8:57 AM, <Jorge.Cancio@bakom.admin.ch> wrote:
Dear Greg and all,
Here is my feedback:
- The “.swiss” input into the questionnaire still stands, which identifies issues and also some possible solutions. (see attached)
- In addition, I would like to recall the following inputs I made to the “influence document” (which I found here: https://community.icann.org/display/WEIA/Jurisdiction):
“ICANNs main agreements (with registries and registrars) are generally silent on applicable law. This silence may be construed differently by different courts in different jurisdictions, although I feel there is a natural tendency in courts to apply its own laws if the agreement is silent and there are internal/national rules that tilt into a certain direction. This means that the choice of applicable law may be limited nowadays in practice, which in principle may disadvantage stakeholders not familiar with the implicit choice of law.
At the same time, registry agreements for IGO/Governmental entities have some flexibilities built in as to applicable law or, to be more precise, as to conflicts arising from diverging obligations coming from the agreement with ICANN and the international law obligations. This is reflected for instance in section 7.16 of the model registry agreement.
This flexibility could be extended to other registries confronted with similar conflicts, not only with international law, but also when confronted with conflicts stemming from national law.
The flexibility could also take the form of a more wider recognition of freedom to choose the applicable law for the parties in the main agreements ICANN has.
The material you mention has, at least at first glance, some relevant rules of choice of law that in a foreigners eye seem to clearly tilt for the "forum" jurisdiction (for instance the "government interest analysis test").
But, what are the rules followed by California?
I see that for “contracts” (most relevant to contracting parties) the second restatement is followed apparently which provides the following:
"d.Contract: In the first instance, the courts must give effect to the law chosen by the parties. In the absence of any such agreement, the courts are directed to the “significant relationship” test of Section 6. Restatement (Second) of Conflict of Laws § 188. The contacts to take into account in determining those principles are:
i.the place of contracting,
ii.the place of negotiation of the contract,
iii.the place of performance,
iv.the location of the subject matter of the contract, and
v.the domicile, residence, nationality, place of incorporation and place of business of the parties."
It would be interesting to know how these contact points are construed in the relation between ICANN and its contracted parties, i.e. what the place of contracting is, the place of negotiation, place of performance, etc. - how they are intended to be construed by the contracting parties and what have been the actual analysis (if any) in the cases had up to today in disputes.
For "torts" (I guess including cases brought for damages by materially harmed parties that are not contractually bound to ICANN) the mentioned "governmental interest analysis" seems to apply ("California uses this test in determining the law applicable to tort claims.").
This test means that "the law of the forum is presumed to apply unless a party demonstrates otherwise."
I feel this could be seen as a significant tilt.
*Experiences on how these rules (both on contracts and torts) apply in practice could be of interest and could be contrasted with ICANN, and registries and registrars (and other parties) based in other jurisdictions. That fact-finding exercise would also allow us to see whether and in what instances that "tilting" occurs.*
*A similar fact-finding should be done for what “applicable law” applies in internal mechanisms (such as the IRP).*
2) Making sure that the hearings of the IRP are location-neutral
3) In the “multiple layers” doc, under “venue”, I had identified the following issues and solutions:
“Under venue or venues: multiplicity of venues and of providers of dispute resolution mechanisms (be it judicial or arbitration). Flexibilities as to standards, election of providers, language of proceedings, freedom to choose for the parties.]“ and “I guess that under “venue” we would need to consider the IRP and other internal redress mechanisms and how well they address the needs of a global stakeholder community, in terms of their composition, the language of proceedings, the venue(s), the providers, etc.].”
I may have missed other important points made before, but I’m sure Secretariat could help in collating all our essential inputs.
Kind regards
Jorge
*Von:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org] *Im Auftrag von *Greg Shatan *Gesendet:* Samstag, 12. August 2017 01:13 *An:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Cc:* Thomas Rickert <thomas@rickert.net> *Betreff:* [Ws2-jurisdiction] Jurisdiction Subgroup: The Path Forward
Jurisdiction Subgroup Members,
As explained by Staff at our last meeting on 9 August, we have until *11 October* to submit a draft set of recommendations to the Plenary for consideration as a first reading if any such recommendations are to be accepted by the Plenary, published for Public Consultation and included in the Final WS2 Report.
In other words, we have about *8 weeks* to develop a draft set of recommendations and come to consensus on these.
Obviously, given this time-frame, we have to accept that we will not be able to address all issues. In fact, the only realistic approach, if we want to deliver any recommendations, is to pick a handful of issues (2 to 4) on which we can all agree and for which we believe we can propose recommendations that will achieve consensus.
I remain optimistic that we can do this if we can agree, meaning everyone will have to compromise, to select this limited number of issues over the next very few weeks and work diligently at meetings and on the list to develop recommendations for these.
To reach this objective I would propose the following approach:
- *Each participant should pick one issue which they believe is in scope for us and post that issue to the list prior to our meeting of 23 August. More specifically:*
- *Issues should be very specific -- avoid open-ended, abstract or omnibus issues* - *Issue description should be succinct -- 12 standard lines maximum* - *Proposed solutions – if you have a possible solution or recommendation which should be considered, please include it (again, being succinct).* - *Put your issue in a new email (not a reply), with the subject ISSUE: [name of issue]* - *The sooner, the better*
I look forward to discussing this proposal at our next meeting of *16 August* and I would encourage participants to comment on this proposal in response to this email prior to that meeting.
Greg
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
All, With apologies, I am traveling with family this weekend, through tomorrow, so I cannot reply individually or in detail until this evening. As a general matter; The Jurisdiction Subgroup has a wiki page All significant documents of the Subgroup should be stored or linked there. Each meeting has a wiki page on the Subgroup wiki. Each page has a recording and captioning and/or transcripts for that meeting. All Subgroup members are expected to review the transcripts or recordings for meetings they do not attend. If captioning/transcripts are unclear, they can be clarified by listening to the recording. All Google Docs have been shared in emails in this group. All Google Docs are stored in a Jurisdiction Subgroup folder. This folder has been shared in emails in this group. Most of the significant documents have been referred to and linked in our Work Plan, which is in the folder, on the wiki and in emails. Please use these tools to find documents, meeting information and emails. That would be very helpful to our progress. I will provide links this evening. I encourage others, unless time does not permit, to provide links to documents to which they refer, and I thank those who have done so in their correspondence. Greg On Mon, Aug 14, 2017 at 3:41 AM, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote:
dEAR gREG, I have already raised in two communications few questions which are still valid, even though some people ,in a recent peer communication has surprisingly told me believe that I have not raised any question at all during the entire period, which is unfair to say so as I have been very active and raised several questions .However, that is their views for which I do not care. . I may send some explanations in regard with some of them if the time permits. Regards Kavouss
On Mon, Aug 14, 2017 at 8:57 AM, <Jorge.Cancio@bakom.admin.ch> wrote:
Dear Greg and all,
Here is my feedback:
- The “.swiss” input into the questionnaire still stands, which identifies issues and also some possible solutions. (see attached)
- In addition, I would like to recall the following inputs I made to the “influence document” (which I found here: https://community.icann.org/display/WEIA/Jurisdiction):
“ICANNs main agreements (with registries and registrars) are generally silent on applicable law. This silence may be construed differently by different courts in different jurisdictions, although I feel there is a natural tendency in courts to apply its own laws if the agreement is silent and there are internal/national rules that tilt into a certain direction. This means that the choice of applicable law may be limited nowadays in practice, which in principle may disadvantage stakeholders not familiar with the implicit choice of law.
At the same time, registry agreements for IGO/Governmental entities have some flexibilities built in as to applicable law or, to be more precise, as to conflicts arising from diverging obligations coming from the agreement with ICANN and the international law obligations. This is reflected for instance in section 7.16 of the model registry agreement.
This flexibility could be extended to other registries confronted with similar conflicts, not only with international law, but also when confronted with conflicts stemming from national law.
The flexibility could also take the form of a more wider recognition of freedom to choose the applicable law for the parties in the main agreements ICANN has.
The material you mention has, at least at first glance, some relevant rules of choice of law that in a foreigners eye seem to clearly tilt for the "forum" jurisdiction (for instance the "government interest analysis test").
But, what are the rules followed by California?
I see that for “contracts” (most relevant to contracting parties) the second restatement is followed apparently which provides the following:
"d.Contract: In the first instance, the courts must give effect to the law chosen by the parties. In the absence of any such agreement, the courts are directed to the “significant relationship” test of Section 6. Restatement (Second) of Conflict of Laws § 188. The contacts to take into account in determining those principles are:
i.the place of contracting,
ii.the place of negotiation of the contract,
iii.the place of performance,
iv.the location of the subject matter of the contract, and
v.the domicile, residence, nationality, place of incorporation and place of business of the parties."
It would be interesting to know how these contact points are construed in the relation between ICANN and its contracted parties, i.e. what the place of contracting is, the place of negotiation, place of performance, etc. - how they are intended to be construed by the contracting parties and what have been the actual analysis (if any) in the cases had up to today in disputes.
For "torts" (I guess including cases brought for damages by materially harmed parties that are not contractually bound to ICANN) the mentioned "governmental interest analysis" seems to apply ("California uses this test in determining the law applicable to tort claims.").
This test means that "the law of the forum is presumed to apply unless a party demonstrates otherwise."
I feel this could be seen as a significant tilt.
*Experiences on how these rules (both on contracts and torts) apply in practice could be of interest and could be contrasted with ICANN, and registries and registrars (and other parties) based in other jurisdictions. That fact-finding exercise would also allow us to see whether and in what instances that "tilting" occurs.*
*A similar fact-finding should be done for what “applicable law” applies in internal mechanisms (such as the IRP).*
2) Making sure that the hearings of the IRP are location-neutral
3) In the “multiple layers” doc, under “venue”, I had identified the following issues and solutions:
“Under venue or venues: multiplicity of venues and of providers of dispute resolution mechanisms (be it judicial or arbitration). Flexibilities as to standards, election of providers, language of proceedings, freedom to choose for the parties.]“ and “I guess that under “venue” we would need to consider the IRP and other internal redress mechanisms and how well they address the needs of a global stakeholder community, in terms of their composition, the language of proceedings, the venue(s), the providers, etc.].”
I may have missed other important points made before, but I’m sure Secretariat could help in collating all our essential inputs.
Kind regards
Jorge
*Von:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounc es@icann.org] *Im Auftrag von *Greg Shatan *Gesendet:* Samstag, 12. August 2017 01:13 *An:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Cc:* Thomas Rickert <thomas@rickert.net> *Betreff:* [Ws2-jurisdiction] Jurisdiction Subgroup: The Path Forward
Jurisdiction Subgroup Members,
As explained by Staff at our last meeting on 9 August, we have until *11 October* to submit a draft set of recommendations to the Plenary for consideration as a first reading if any such recommendations are to be accepted by the Plenary, published for Public Consultation and included in the Final WS2 Report.
In other words, we have about *8 weeks* to develop a draft set of recommendations and come to consensus on these.
Obviously, given this time-frame, we have to accept that we will not be able to address all issues. In fact, the only realistic approach, if we want to deliver any recommendations, is to pick a handful of issues (2 to 4) on which we can all agree and for which we believe we can propose recommendations that will achieve consensus.
I remain optimistic that we can do this if we can agree, meaning everyone will have to compromise, to select this limited number of issues over the next very few weeks and work diligently at meetings and on the list to develop recommendations for these.
To reach this objective I would propose the following approach:
- *Each participant should pick one issue which they believe is in scope for us and post that issue to the list prior to our meeting of 23 August. More specifically:*
- *Issues should be very specific -- avoid open-ended, abstract or omnibus issues* - *Issue description should be succinct -- 12 standard lines maximum* - *Proposed solutions – if you have a possible solution or recommendation which should be considered, please include it (again, being succinct).* - *Put your issue in a new email (not a reply), with the subject ISSUE: [name of issue]* - *The sooner, the better*
I look forward to discussing this proposal at our next meeting of *16 August* and I would encourage participants to comment on this proposal in response to this email prior to that meeting.
Greg
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
As promised, here is the email regarding Subgroup resources, with links now added for your convenience. On Mon, Aug 14, 2017 at 9:49 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
All,
With apologies, I am traveling with family this weekend, through tomorrow, so I cannot reply individually or in detail until this evening.
As a general matter;
The Jurisdiction Subgroup has a wiki page https://community.icann.org/display/WEIA/Jurisdiction All significant documents of the Subgroup should be stored or linked there. Each meeting has a wiki page on the Subgroup wiki. Each page has a recording and captioning and/or transcripts for that meeting.
All Subgroup members are expected to review the transcripts or recordings for meetings they do not attend. If captioning/transcripts are unclear, they can be clarified by listening to the recording.
All Google Docs have been shared in emails in this group. All Google Docs are stored in a Jurisdiction Subgroup folder. This folder has been shared in emails in this group. https://drive.google.com/drive/folders/0B90h5wcghspFVHkxWUN1TXJOQzQ?usp=shar...
Most of the significant documents have been referred to and linked in our Work Plan, which is in the folder, on the wiki and in emails. https://community.icann.org/download/attachments/59643282/RevisedWorkPlanand...
https://docs.google.com/document/d/1I0rHFcjW9kWU62lGMLZNbXkyWu4ROZaRT-qJnWzvb-A/edit?usp=sharing
Please use these tools to find documents, meeting information and emails. That would be very helpful to our progress.
I will provide links this evening. I encourage others, unless time does not permit, to provide links to documents to which they refer, and I thank those who have done so in their correspondence.
Greg
On Mon, Aug 14, 2017 at 3:41 AM, Kavouss Arasteh < kavouss.arasteh@gmail.com> wrote:
dEAR gREG, I have already raised in two communications few questions which are still valid, even though some people ,in a recent peer communication has surprisingly told me believe that I have not raised any question at all during the entire period, which is unfair to say so as I have been very active and raised several questions .However, that is their views for which I do not care. . I may send some explanations in regard with some of them if the time permits. Regards Kavouss
On Mon, Aug 14, 2017 at 8:57 AM, <Jorge.Cancio@bakom.admin.ch> wrote:
Dear Greg and all,
Here is my feedback:
- The “.swiss” input into the questionnaire still stands, which identifies issues and also some possible solutions. (see attached)
- In addition, I would like to recall the following inputs I made to the “influence document” (which I found here: https://community.icann.org/display/WEIA/Jurisdiction):
“ICANNs main agreements (with registries and registrars) are generally silent on applicable law. This silence may be construed differently by different courts in different jurisdictions, although I feel there is a natural tendency in courts to apply its own laws if the agreement is silent and there are internal/national rules that tilt into a certain direction. This means that the choice of applicable law may be limited nowadays in practice, which in principle may disadvantage stakeholders not familiar with the implicit choice of law.
At the same time, registry agreements for IGO/Governmental entities have some flexibilities built in as to applicable law or, to be more precise, as to conflicts arising from diverging obligations coming from the agreement with ICANN and the international law obligations. This is reflected for instance in section 7.16 of the model registry agreement.
This flexibility could be extended to other registries confronted with similar conflicts, not only with international law, but also when confronted with conflicts stemming from national law.
The flexibility could also take the form of a more wider recognition of freedom to choose the applicable law for the parties in the main agreements ICANN has.
The material you mention has, at least at first glance, some relevant rules of choice of law that in a foreigners eye seem to clearly tilt for the "forum" jurisdiction (for instance the "government interest analysis test").
But, what are the rules followed by California?
I see that for “contracts” (most relevant to contracting parties) the second restatement is followed apparently which provides the following:
"d.Contract: In the first instance, the courts must give effect to the law chosen by the parties. In the absence of any such agreement, the courts are directed to the “significant relationship” test of Section 6. Restatement (Second) of Conflict of Laws § 188. The contacts to take into account in determining those principles are:
i.the place of contracting,
ii.the place of negotiation of the contract,
iii.the place of performance,
iv.the location of the subject matter of the contract, and
v.the domicile, residence, nationality, place of incorporation and place of business of the parties."
It would be interesting to know how these contact points are construed in the relation between ICANN and its contracted parties, i.e. what the place of contracting is, the place of negotiation, place of performance, etc. - how they are intended to be construed by the contracting parties and what have been the actual analysis (if any) in the cases had up to today in disputes.
For "torts" (I guess including cases brought for damages by materially harmed parties that are not contractually bound to ICANN) the mentioned "governmental interest analysis" seems to apply ("California uses this test in determining the law applicable to tort claims.").
This test means that "the law of the forum is presumed to apply unless a party demonstrates otherwise."
I feel this could be seen as a significant tilt.
*Experiences on how these rules (both on contracts and torts) apply in practice could be of interest and could be contrasted with ICANN, and registries and registrars (and other parties) based in other jurisdictions. That fact-finding exercise would also allow us to see whether and in what instances that "tilting" occurs.*
*A similar fact-finding should be done for what “applicable law” applies in internal mechanisms (such as the IRP).*
2) Making sure that the hearings of the IRP are location-neutral
3) In the “multiple layers” doc, under “venue”, I had identified the following issues and solutions:
“Under venue or venues: multiplicity of venues and of providers of dispute resolution mechanisms (be it judicial or arbitration). Flexibilities as to standards, election of providers, language of proceedings, freedom to choose for the parties.]“ and “I guess that under “venue” we would need to consider the IRP and other internal redress mechanisms and how well they address the needs of a global stakeholder community, in terms of their composition, the language of proceedings, the venue(s), the providers, etc.].”
I may have missed other important points made before, but I’m sure Secretariat could help in collating all our essential inputs.
Kind regards
Jorge
*Von:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounc es@icann.org] *Im Auftrag von *Greg Shatan *Gesendet:* Samstag, 12. August 2017 01:13 *An:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Cc:* Thomas Rickert <thomas@rickert.net> *Betreff:* [Ws2-jurisdiction] Jurisdiction Subgroup: The Path Forward
Jurisdiction Subgroup Members,
As explained by Staff at our last meeting on 9 August, we have until *11 October* to submit a draft set of recommendations to the Plenary for consideration as a first reading if any such recommendations are to be accepted by the Plenary, published for Public Consultation and included in the Final WS2 Report.
In other words, we have about *8 weeks* to develop a draft set of recommendations and come to consensus on these.
Obviously, given this time-frame, we have to accept that we will not be able to address all issues. In fact, the only realistic approach, if we want to deliver any recommendations, is to pick a handful of issues (2 to 4) on which we can all agree and for which we believe we can propose recommendations that will achieve consensus.
I remain optimistic that we can do this if we can agree, meaning everyone will have to compromise, to select this limited number of issues over the next very few weeks and work diligently at meetings and on the list to develop recommendations for these.
To reach this objective I would propose the following approach:
- *Each participant should pick one issue which they believe is in scope for us and post that issue to the list prior to our meeting of 23 August. More specifically:*
- *Issues should be very specific -- avoid open-ended, abstract or omnibus issues* - *Issue description should be succinct -- 12 standard lines maximum* - *Proposed solutions – if you have a possible solution or recommendation which should be considered, please include it (again, being succinct).* - *Put your issue in a new email (not a reply), with the subject ISSUE: [name of issue]* - *The sooner, the better*
I look forward to discussing this proposal at our next meeting of *16 August* and I would encourage participants to comment on this proposal in response to this email prior to that meeting.
Greg
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Greg Yes, everyone shd look up the transcripts, and one tries to do as much as one can. But one may miss things, and answers to ones questions may not even be there. So, am I to take that you refuse to answer the question about this new process where you have disconnected from the earlier process of issues framing and begun an entirely new one, with a doc containing, as far as I know, completely arbitrarily chosen few issues, and not others from the original document? parminder On Monday 14 August 2017 07:19 PM, Greg Shatan wrote:
All,
With apologies, I am traveling with family this weekend, through tomorrow, so I cannot reply individually or in detail until this evening.
As a general matter;
The Jurisdiction Subgroup has a wiki page All significant documents of the Subgroup should be stored or linked there. Each meeting has a wiki page on the Subgroup wiki. Each page has a recording and captioning and/or transcripts for that meeting.
All Subgroup members are expected to review the transcripts or recordings for meetings they do not attend. If captioning/transcripts are unclear, they can be clarified by listening to the recording.
All Google Docs have been shared in emails in this group. All Google Docs are stored in a Jurisdiction Subgroup folder. This folder has been shared in emails in this group.
Most of the significant documents have been referred to and linked in our Work Plan, which is in the folder, on the wiki and in emails.
Please use these tools to find documents, meeting information and emails. That would be very helpful to our progress.
I will provide links this evening. I encourage others, unless time does not permit, to provide links to documents to which they refer, and I thank those who have done so in their correspondence.
Greg
On Mon, Aug 14, 2017 at 3:41 AM, Kavouss Arasteh <kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com>> wrote:
dEAR gREG, I have already raised in two communications few questions which are still valid, even though some people ,in a recent peer communication has surprisingly told me believe that I have not raised any question at all during the entire period, which is unfair to say so as I have been very active and raised several questions .However, that is their views for which I do not care. . I may send some explanations in regard with some of them if the time permits. Regards Kavouss
On Mon, Aug 14, 2017 at 8:57 AM, <Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch>> wrote:
Dear Greg and all,
Here is my feedback:
- The “.swiss” input into the questionnaire still stands, which identifies issues and also some possible solutions. (see attached)
- In addition, I would like to recall the following inputs I made to the “influence document” (which I found here: https://community.icann.org/display/WEIA/Jurisdiction <https://community.icann.org/display/WEIA/Jurisdiction>):
“ICANNs main agreements (with registries and registrars) are generally silent on applicable law. This silence may be construed differently by different courts in different jurisdictions, although I feel there is a natural tendency in courts to apply its own laws if the agreement is silent and there are internal/national rules that tilt into a certain direction. This means that the choice of applicable law may be limited nowadays in practice, which in principle may disadvantage stakeholders not familiar with the implicit choice of law.
At the same time, registry agreements for IGO/Governmental entities have some flexibilities built in as to applicable law or, to be more precise, as to conflicts arising from diverging obligations coming from the agreement with ICANN and the international law obligations. This is reflected for instance in section 7.16 of the model registry agreement.
This flexibility could be extended to other registries confronted with similar conflicts, not only with international law, but also when confronted with conflicts stemming from national law.
The flexibility could also take the form of a more wider recognition of freedom to choose the applicable law for the parties in the main agreements ICANN has.
The material you mention has, at least at first glance, some relevant rules of choice of law that in a foreigners eye seem to clearly tilt for the "forum" jurisdiction (for instance the "government interest analysis test").
But, what are the rules followed by California?
I see that for “contracts” (most relevant to contracting parties) the second restatement is followed apparently which provides the following:
"d.Contract: In the first instance, the courts must give effect to the law chosen by the parties. In the absence of any such agreement, the courts are directed to the “significant relationship” test of Section 6. Restatement (Second) of Conflict of Laws § 188. The contacts to take into account in determining those principles are:
i.the place of contracting,
ii.the place of negotiation of the contract,
iii.the place of performance,
iv.the location of the subject matter of the contract, and
v.the domicile, residence, nationality, place of incorporation and place of business of the parties."
It would be interesting to know how these contact points are construed in the relation between ICANN and its contracted parties, i.e. what the place of contracting is, the place of negotiation, place of performance, etc. - how they are intended to be construed by the contracting parties and what have been the actual analysis (if any) in the cases had up to today in disputes.
For "torts" (I guess including cases brought for damages by materially harmed parties that are not contractually bound to ICANN) the mentioned "governmental interest analysis" seems to apply ("California uses this test in determining the law applicable to tort claims.").
This test means that "the law of the forum is presumed to apply unless a party demonstrates otherwise."
I feel this could be seen as a significant tilt.
_Experiences on how these rules (both on contracts and torts) apply in practice could be of interest and could be contrasted with ICANN, and registries and registrars (and other parties) based in other jurisdictions. That fact-finding exercise would also allow us to see whether and in what instances that "tilting" occurs._
_A similar fact-finding should be done for what “applicable law” applies in internal mechanisms (such as the IRP)._
2) Making sure that the hearings of the IRP are location-neutral
3) In the “multiple layers” doc, under “venue”, I had identified the following issues and solutions:
“Under venue or venues: multiplicity of venues and of providers of dispute resolution mechanisms (be it judicial or arbitration). Flexibilities as to standards, election of providers, language of proceedings, freedom to choose for the parties.]“ and “I guess that under “venue” we would need to consider the IRP and other internal redress mechanisms and how well they address the needs of a global stakeholder community, in terms of their composition, the language of proceedings, the venue(s), the providers, etc.].”
I may have missed other important points made before, but I’m sure Secretariat could help in collating all our essential inputs.
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 *Greg Shatan *Gesendet:* Samstag, 12. August 2017 01:13 *An:* ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>> *Cc:* Thomas Rickert <thomas@rickert.net <mailto:thomas@rickert.net>> *Betreff:* [Ws2-jurisdiction] Jurisdiction Subgroup: The Path Forward
Jurisdiction Subgroup Members,
As explained by Staff at our last meeting on 9 August, we have until *11 October* to submit a draft set of recommendations to the Plenary for consideration as a first reading if any such recommendations are to be accepted by the Plenary, published for Public Consultation and included in the Final WS2 Report.
In other words, we have about *8 weeks* to develop a draft set of recommendations and come to consensus on these.
Obviously, given this time-frame, we have to accept that we will not be able to address all issues. In fact, the only realistic approach, if we want to deliver any recommendations, is to pick a handful of issues (2 to 4) on which we can all agree and for which we believe we can propose recommendations that will achieve consensus.
I remain optimistic that we can do this if we can agree, meaning everyone will have to compromise, to select this limited number of issues over the next very few weeks and work diligently at meetings and on the list to develop recommendations for these.
To reach this objective I would propose the following approach:
* *Each participant should pick _one_ issue which they believe is in scope for us and post that issue to the list prior to our meeting of 23 August. More specifically:*
o *Issues should be very specific -- avoid open-ended, abstract or omnibus issues* o *Issue description should be succinct -- 12 standard lines maximum* o *Proposed solutions – if you have a possible solution or recommendation which should be considered, please include it (again, being succinct).* o *Put your issue in a new email (not a reply), with the subject ISSUE: [name of issue]* o *The sooner, the better*
I look forward to discussing this proposal at our next meeting of *16 August* and I would encourage participants to comment on this proposal in response to this email prior to that meeting.
Greg
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
The answers are quite clearly in the transcripts and on the email list, and have been pointed by others. There is no basis for you to claim that i am refusing to answer, other than to be inflammatory. I have already stated that I have been traveling the last several days and unable to answer in detail. The "new" document you are referring to was created on *June 16*, as an empty list. The idea was to pull the potential issues from the multiple different documents where such potential issues have been suggested and have a single combined list of all of these issues to work from. Specifically, the idea was that members who either had put forward issues or had worked on litigation reviews or questionnaire response analysis where issues were raised would add those issues to the list. This idea was proposed to the group in June and there were no significant objections at that time. On virtually every agenda and call for the last two months, I have called for participants to add potential issues to the list. The "arbitrarily chosen few issues" are those put on the list by those participants who responded to this request. As for an "original document" that served as a central repository for the proposed issues, I'm honestly uncertain what document you are referring to. Can you please provide the specific "original issues doc" you refer to? That would be helpful. Greg On Wed, Aug 16, 2017 at 12:28 AM, parminder <parminder@itforchange.net> wrote:
Greg Yes, everyone shd look up the transcripts, and one tries to do as much as one can. But one may miss things, and answers to ones questions may not even be there.
So, am I to take that you refuse to answer the question about this new process where you have disconnected from the earlier process of issues framing and begun an entirely new one, with a doc containing, as far as I know, completely arbitrarily chosen few issues, and not others from the original document?
parminder
On Monday 14 August 2017 07:19 PM, Greg Shatan wrote:
All,
With apologies, I am traveling with family this weekend, through tomorrow, so I cannot reply individually or in detail until this evening.
As a general matter;
The Jurisdiction Subgroup has a wiki page All significant documents of the Subgroup should be stored or linked there. Each meeting has a wiki page on the Subgroup wiki. Each page has a recording and captioning and/or transcripts for that meeting.
All Subgroup members are expected to review the transcripts or recordings for meetings they do not attend. If captioning/transcripts are unclear, they can be clarified by listening to the recording.
All Google Docs have been shared in emails in this group. All Google Docs are stored in a Jurisdiction Subgroup folder. This folder has been shared in emails in this group.
Most of the significant documents have been referred to and linked in our Work Plan, which is in the folder, on the wiki and in emails.
Please use these tools to find documents, meeting information and emails. That would be very helpful to our progress.
I will provide links this evening. I encourage others, unless time does not permit, to provide links to documents to which they refer, and I thank those who have done so in their correspondence.
Greg
On Mon, Aug 14, 2017 at 3:41 AM, Kavouss Arasteh < kavouss.arasteh@gmail.com> wrote:
dEAR gREG, I have already raised in two communications few questions which are still valid, even though some people ,in a recent peer communication has surprisingly told me believe that I have not raised any question at all during the entire period, which is unfair to say so as I have been very active and raised several questions .However, that is their views for which I do not care. . I may send some explanations in regard with some of them if the time permits. Regards Kavouss
On Mon, Aug 14, 2017 at 8:57 AM, <Jorge.Cancio@bakom.admin.ch> wrote:
Dear Greg and all,
Here is my feedback:
- The “.swiss” input into the questionnaire still stands, which identifies issues and also some possible solutions. (see attached)
- In addition, I would like to recall the following inputs I made to the “influence document” (which I found here: https://community.icann.org/display/WEIA/Jurisdiction):
“ICANNs main agreements (with registries and registrars) are generally silent on applicable law. This silence may be construed differently by different courts in different jurisdictions, although I feel there is a natural tendency in courts to apply its own laws if the agreement is silent and there are internal/national rules that tilt into a certain direction. This means that the choice of applicable law may be limited nowadays in practice, which in principle may disadvantage stakeholders not familiar with the implicit choice of law.
At the same time, registry agreements for IGO/Governmental entities have some flexibilities built in as to applicable law or, to be more precise, as to conflicts arising from diverging obligations coming from the agreement with ICANN and the international law obligations. This is reflected for instance in section 7.16 of the model registry agreement.
This flexibility could be extended to other registries confronted with similar conflicts, not only with international law, but also when confronted with conflicts stemming from national law.
The flexibility could also take the form of a more wider recognition of freedom to choose the applicable law for the parties in the main agreements ICANN has.
The material you mention has, at least at first glance, some relevant rules of choice of law that in a foreigners eye seem to clearly tilt for the "forum" jurisdiction (for instance the "government interest analysis test").
But, what are the rules followed by California?
I see that for “contracts” (most relevant to contracting parties) the second restatement is followed apparently which provides the following:
"d.Contract: In the first instance, the courts must give effect to the law chosen by the parties. In the absence of any such agreement, the courts are directed to the “significant relationship” test of Section 6. Restatement (Second) of Conflict of Laws § 188. The contacts to take into account in determining those principles are:
i.the place of contracting,
ii.the place of negotiation of the contract,
iii.the place of performance,
iv.the location of the subject matter of the contract, and
v.the domicile, residence, nationality, place of incorporation and place of business of the parties."
It would be interesting to know how these contact points are construed in the relation between ICANN and its contracted parties, i.e. what the place of contracting is, the place of negotiation, place of performance, etc. - how they are intended to be construed by the contracting parties and what have been the actual analysis (if any) in the cases had up to today in disputes.
For "torts" (I guess including cases brought for damages by materially harmed parties that are not contractually bound to ICANN) the mentioned "governmental interest analysis" seems to apply ("California uses this test in determining the law applicable to tort claims.").
This test means that "the law of the forum is presumed to apply unless a party demonstrates otherwise."
I feel this could be seen as a significant tilt.
*Experiences on how these rules (both on contracts and torts) apply in practice could be of interest and could be contrasted with ICANN, and registries and registrars (and other parties) based in other jurisdictions. That fact-finding exercise would also allow us to see whether and in what instances that "tilting" occurs.*
*A similar fact-finding should be done for what “applicable law” applies in internal mechanisms (such as the IRP).*
2) Making sure that the hearings of the IRP are location-neutral
3) In the “multiple layers” doc, under “venue”, I had identified the following issues and solutions:
“Under venue or venues: multiplicity of venues and of providers of dispute resolution mechanisms (be it judicial or arbitration). Flexibilities as to standards, election of providers, language of proceedings, freedom to choose for the parties.]“ and “I guess that under “venue” we would need to consider the IRP and other internal redress mechanisms and how well they address the needs of a global stakeholder community, in terms of their composition, the language of proceedings, the venue(s), the providers, etc.].”
I may have missed other important points made before, but I’m sure Secretariat could help in collating all our essential inputs.
Kind regards
Jorge
*Von:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounc es@icann.org] *Im Auftrag von *Greg Shatan *Gesendet:* Samstag, 12. August 2017 01:13 *An:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Cc:* Thomas Rickert <thomas@rickert.net> *Betreff:* [Ws2-jurisdiction] Jurisdiction Subgroup: The Path Forward
Jurisdiction Subgroup Members,
As explained by Staff at our last meeting on 9 August, we have until *11 October* to submit a draft set of recommendations to the Plenary for consideration as a first reading if any such recommendations are to be accepted by the Plenary, published for Public Consultation and included in the Final WS2 Report.
In other words, we have about *8 weeks* to develop a draft set of recommendations and come to consensus on these.
Obviously, given this time-frame, we have to accept that we will not be able to address all issues. In fact, the only realistic approach, if we want to deliver any recommendations, is to pick a handful of issues (2 to 4) on which we can all agree and for which we believe we can propose recommendations that will achieve consensus.
I remain optimistic that we can do this if we can agree, meaning everyone will have to compromise, to select this limited number of issues over the next very few weeks and work diligently at meetings and on the list to develop recommendations for these.
To reach this objective I would propose the following approach:
- *Each participant should pick one issue which they believe is in scope for us and post that issue to the list prior to our meeting of 23 August. More specifically:*
- *Issues should be very specific -- avoid open-ended, abstract or omnibus issues* - *Issue description should be succinct -- 12 standard lines maximum* - *Proposed solutions – if you have a possible solution or recommendation which should be considered, please include it (again, being succinct).* - *Put your issue in a new email (not a reply), with the subject ISSUE: [name of issue]* - *The sooner, the better*
I look forward to discussing this proposal at our next meeting of *16 August* and I would encourage participants to comment on this proposal in response to this email prior to that meeting.
Greg
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
_______________________________________________ Ws2-jurisdiction mailing listWs2-jurisdiction@icann.orghttps://mm.icann.org/mailman/listinfo/ws2-jurisdiction
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Dear Greg, I wish to point out the FOLLOWINGS: 1. I have provided you with the list of questions that i raised and did kindly include them in a more substantive list which is still valid PLUS those new questions raised at that famous meeting 2. I have asked, as supported by three other participants, a written answer to be provided by SAM taking into account the following: 2.1. Transcript was incomplete with sometimes broken and incoherent sentences and 2.2. Some of the questions were not answered. I INDICATED that to Bernie and he kindly confirmed that he has sent the raw transcript to the central office and expect to receive the corrected and valid version .I have not seen that version yet 2.3. I have also forwarded a copy of a blog received by 13 January 2017 in which many issues of our interest are well described together with some possible solution. I therefore do not see any reasons that I bother you and repeat them I reply on your kind action to consolidate them in a new list or amend the previously existed list . Regards Kavouss On Wed, Aug 16, 2017 at 6:52 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
The answers are quite clearly in the transcripts and on the email list, and have been pointed by others.
There is no basis for you to claim that i am refusing to answer, other than to be inflammatory. I have already stated that I have been traveling the last several days and unable to answer in detail.
The "new" document you are referring to was created on *June 16*, as an empty list. The idea was to pull the potential issues from the multiple different documents where such potential issues have been suggested and have a single combined list of all of these issues to work from. Specifically, the idea was that members who either had put forward issues or had worked on litigation reviews or questionnaire response analysis where issues were raised would add those issues to the list. This idea was proposed to the group in June and there were no significant objections at that time. On virtually every agenda and call for the last two months, I have called for participants to add potential issues to the list. The "arbitrarily chosen few issues" are those put on the list by those participants who responded to this request.
As for an "original document" that served as a central repository for the proposed issues, I'm honestly uncertain what document you are referring to. Can you please provide the specific "original issues doc" you refer to? That would be helpful.
Greg
On Wed, Aug 16, 2017 at 12:28 AM, parminder <parminder@itforchange.net> wrote:
Greg Yes, everyone shd look up the transcripts, and one tries to do as much as one can. But one may miss things, and answers to ones questions may not even be there.
So, am I to take that you refuse to answer the question about this new process where you have disconnected from the earlier process of issues framing and begun an entirely new one, with a doc containing, as far as I know, completely arbitrarily chosen few issues, and not others from the original document?
parminder
On Monday 14 August 2017 07:19 PM, Greg Shatan wrote:
All,
With apologies, I am traveling with family this weekend, through tomorrow, so I cannot reply individually or in detail until this evening.
As a general matter;
The Jurisdiction Subgroup has a wiki page All significant documents of the Subgroup should be stored or linked there. Each meeting has a wiki page on the Subgroup wiki. Each page has a recording and captioning and/or transcripts for that meeting.
All Subgroup members are expected to review the transcripts or recordings for meetings they do not attend. If captioning/transcripts are unclear, they can be clarified by listening to the recording.
All Google Docs have been shared in emails in this group. All Google Docs are stored in a Jurisdiction Subgroup folder. This folder has been shared in emails in this group.
Most of the significant documents have been referred to and linked in our Work Plan, which is in the folder, on the wiki and in emails.
Please use these tools to find documents, meeting information and emails. That would be very helpful to our progress.
I will provide links this evening. I encourage others, unless time does not permit, to provide links to documents to which they refer, and I thank those who have done so in their correspondence.
Greg
On Mon, Aug 14, 2017 at 3:41 AM, Kavouss Arasteh < kavouss.arasteh@gmail.com> wrote:
dEAR gREG, I have already raised in two communications few questions which are still valid, even though some people ,in a recent peer communication has surprisingly told me believe that I have not raised any question at all during the entire period, which is unfair to say so as I have been very active and raised several questions .However, that is their views for which I do not care. . I may send some explanations in regard with some of them if the time permits. Regards Kavouss
On Mon, Aug 14, 2017 at 8:57 AM, <Jorge.Cancio@bakom.admin.ch> wrote:
Dear Greg and all,
Here is my feedback:
- The “.swiss” input into the questionnaire still stands, which identifies issues and also some possible solutions. (see attached)
- In addition, I would like to recall the following inputs I made to the “influence document” (which I found here: https://community.icann.org/display/WEIA/Jurisdiction):
“ICANNs main agreements (with registries and registrars) are generally silent on applicable law. This silence may be construed differently by different courts in different jurisdictions, although I feel there is a natural tendency in courts to apply its own laws if the agreement is silent and there are internal/national rules that tilt into a certain direction. This means that the choice of applicable law may be limited nowadays in practice, which in principle may disadvantage stakeholders not familiar with the implicit choice of law.
At the same time, registry agreements for IGO/Governmental entities have some flexibilities built in as to applicable law or, to be more precise, as to conflicts arising from diverging obligations coming from the agreement with ICANN and the international law obligations. This is reflected for instance in section 7.16 of the model registry agreement.
This flexibility could be extended to other registries confronted with similar conflicts, not only with international law, but also when confronted with conflicts stemming from national law.
The flexibility could also take the form of a more wider recognition of freedom to choose the applicable law for the parties in the main agreements ICANN has.
The material you mention has, at least at first glance, some relevant rules of choice of law that in a foreigners eye seem to clearly tilt for the "forum" jurisdiction (for instance the "government interest analysis test").
But, what are the rules followed by California?
I see that for “contracts” (most relevant to contracting parties) the second restatement is followed apparently which provides the following:
"d.Contract: In the first instance, the courts must give effect to the law chosen by the parties. In the absence of any such agreement, the courts are directed to the “significant relationship” test of Section 6. Restatement (Second) of Conflict of Laws § 188. The contacts to take into account in determining those principles are:
i.the place of contracting,
ii.the place of negotiation of the contract,
iii.the place of performance,
iv.the location of the subject matter of the contract, and
v.the domicile, residence, nationality, place of incorporation and place of business of the parties."
It would be interesting to know how these contact points are construed in the relation between ICANN and its contracted parties, i.e. what the place of contracting is, the place of negotiation, place of performance, etc. - how they are intended to be construed by the contracting parties and what have been the actual analysis (if any) in the cases had up to today in disputes.
For "torts" (I guess including cases brought for damages by materially harmed parties that are not contractually bound to ICANN) the mentioned "governmental interest analysis" seems to apply ("California uses this test in determining the law applicable to tort claims.").
This test means that "the law of the forum is presumed to apply unless a party demonstrates otherwise."
I feel this could be seen as a significant tilt.
*Experiences on how these rules (both on contracts and torts) apply in practice could be of interest and could be contrasted with ICANN, and registries and registrars (and other parties) based in other jurisdictions. That fact-finding exercise would also allow us to see whether and in what instances that "tilting" occurs.*
*A similar fact-finding should be done for what “applicable law” applies in internal mechanisms (such as the IRP).*
2) Making sure that the hearings of the IRP are location-neutral
3) In the “multiple layers” doc, under “venue”, I had identified the following issues and solutions:
“Under venue or venues: multiplicity of venues and of providers of dispute resolution mechanisms (be it judicial or arbitration). Flexibilities as to standards, election of providers, language of proceedings, freedom to choose for the parties.]“ and “I guess that under “venue” we would need to consider the IRP and other internal redress mechanisms and how well they address the needs of a global stakeholder community, in terms of their composition, the language of proceedings, the venue(s), the providers, etc.].”
I may have missed other important points made before, but I’m sure Secretariat could help in collating all our essential inputs.
Kind regards
Jorge
*Von:* ws2-jurisdiction-bounces@icann.org [mailto: ws2-jurisdiction-bounces@icann.org] *Im Auftrag von *Greg Shatan *Gesendet:* Samstag, 12. August 2017 01:13 *An:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Cc:* Thomas Rickert <thomas@rickert.net> *Betreff:* [Ws2-jurisdiction] Jurisdiction Subgroup: The Path Forward
Jurisdiction Subgroup Members,
As explained by Staff at our last meeting on 9 August, we have until *11 October* to submit a draft set of recommendations to the Plenary for consideration as a first reading if any such recommendations are to be accepted by the Plenary, published for Public Consultation and included in the Final WS2 Report.
In other words, we have about *8 weeks* to develop a draft set of recommendations and come to consensus on these.
Obviously, given this time-frame, we have to accept that we will not be able to address all issues. In fact, the only realistic approach, if we want to deliver any recommendations, is to pick a handful of issues (2 to 4) on which we can all agree and for which we believe we can propose recommendations that will achieve consensus.
I remain optimistic that we can do this if we can agree, meaning everyone will have to compromise, to select this limited number of issues over the next very few weeks and work diligently at meetings and on the list to develop recommendations for these.
To reach this objective I would propose the following approach:
- *Each participant should pick one issue which they believe is in scope for us and post that issue to the list prior to our meeting of 23 August. More specifically:*
- *Issues should be very specific -- avoid open-ended, abstract or omnibus issues* - *Issue description should be succinct -- 12 standard lines maximum* - *Proposed solutions – if you have a possible solution or recommendation which should be considered, please include it (again, being succinct).* - *Put your issue in a new email (not a reply), with the subject ISSUE: [name of issue]* - *The sooner, the better*
I look forward to discussing this proposal at our next meeting of *16 August* and I would encourage participants to comment on this proposal in response to this email prior to that meeting.
Greg
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
_______________________________________________ Ws2-jurisdiction mailing listWs2-jurisdiction@icann.orghttps://mm.icann.org/mailman/listinfo/ws2-jurisdiction
_______________________________________________ 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 Greg I think those colleagues that comment on immunity or partial immunity removal problems perhaps could be kind enough to propose solutions for the fundamental and crucial problems such as OFAC. It may be necessary to indicate obstacle for such removal but it would be also necessary or even fundamental to propose solutions Every one is capable to raise concerns but everyone should also from time to time express sympathy and propose solutions WS2 would not be successful if we are not able to address these issues impartially and objectively Regards Kavouss Sent from my iPhone
On 16 Aug 2017, at 08:14, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote:
Dear Greg, I wish to point out the FOLLOWINGS:
1. I have provided you with the list of questions that i raised and did kindly include them in a more substantive list which is still valid PLUS those new questions raised at that famous meeting 2. I have asked, as supported by three other participants, a written answer to be provided by SAM taking into account the following: 2.1. Transcript was incomplete with sometimes broken and incoherent sentences and 2.2. Some of the questions were not answered. I INDICATED that to Bernie and he kindly confirmed that he has sent the raw transcript to the central office and expect to receive the corrected and valid version .I have not seen that version yet 2.3. I have also forwarded a copy of a blog received by 13 January 2017 in which many issues of our interest are well described together with some possible solution. I therefore do not see any reasons that I bother you and repeat them I reply on your kind action to consolidate them in a new list or amend the previously existed list . Regards Kavouss
On Wed, Aug 16, 2017 at 6:52 AM, Greg Shatan <gregshatanipc@gmail.com> wrote: The answers are quite clearly in the transcripts and on the email list, and have been pointed by others.
There is no basis for you to claim that i am refusing to answer, other than to be inflammatory. I have already stated that I have been traveling the last several days and unable to answer in detail.
The "new" document you are referring to was created on June 16, as an empty list. The idea was to pull the potential issues from the multiple different documents where such potential issues have been suggested and have a single combined list of all of these issues to work from. Specifically, the idea was that members who either had put forward issues or had worked on litigation reviews or questionnaire response analysis where issues were raised would add those issues to the list. This idea was proposed to the group in June and there were no significant objections at that time. On virtually every agenda and call for the last two months, I have called for participants to add potential issues to the list. The "arbitrarily chosen few issues" are those put on the list by those participants who responded to this request.
As for an "original document" that served as a central repository for the proposed issues, I'm honestly uncertain what document you are referring to. Can you please provide the specific "original issues doc" you refer to? That would be helpful.
Greg
On Wed, Aug 16, 2017 at 12:28 AM, parminder <parminder@itforchange.net> wrote: Greg
Yes, everyone shd look up the transcripts, and one tries to do as much as one can. But one may miss things, and answers to ones questions may not even be there.
So, am I to take that you refuse to answer the question about this new process where you have disconnected from the earlier process of issues framing and begun an entirely new one, with a doc containing, as far as I know, completely arbitrarily chosen few issues, and not others from the original document?
parminder
On Monday 14 August 2017 07:19 PM, Greg Shatan wrote: All,
With apologies, I am traveling with family this weekend, through tomorrow, so I cannot reply individually or in detail until this evening.
As a general matter;
The Jurisdiction Subgroup has a wiki page All significant documents of the Subgroup should be stored or linked there. Each meeting has a wiki page on the Subgroup wiki. Each page has a recording and captioning and/or transcripts for that meeting.
All Subgroup members are expected to review the transcripts or recordings for meetings they do not attend. If captioning/transcripts are unclear, they can be clarified by listening to the recording.
All Google Docs have been shared in emails in this group. All Google Docs are stored in a Jurisdiction Subgroup folder. This folder has been shared in emails in this group.
Most of the significant documents have been referred to and linked in our Work Plan, which is in the folder, on the wiki and in emails.
Please use these tools to find documents, meeting information and emails. That would be very helpful to our progress.
I will provide links this evening. I encourage others, unless time does not permit, to provide links to documents to which they refer, and I thank those who have done so in their correspondence.
Greg
On Mon, Aug 14, 2017 at 3:41 AM, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote:
dEAR gREG, I have already raised in two communications few questions which are still valid, even though some people ,in a recent peer communication has surprisingly told me believe that I have not raised any question at all during the entire period, which is unfair to say so as I have been very active and raised several questions .However, that is their views for which I do not care. . I may send some explanations in regard with some of them if the time permits. Regards Kavouss
On Mon, Aug 14, 2017 at 8:57 AM, <Jorge.Cancio@bakom.admin.ch> wrote:
Dear Greg and all,
Here is my feedback:
- The “.swiss” input into the questionnaire still stands, which identifies issues and also some possible solutions. (see attached)
- In addition, I would like to recall the following inputs I made to the “influence document” (which I found here: https://community.icann.org/display/WEIA/Jurisdiction):
“ICANNs main agreements (with registries and registrars) are generally silent on applicable law. This silence may be construed differently by different courts in different jurisdictions, although I feel there is a natural tendency in courts to apply its own laws if the agreement is silent and there are internal/national rules that tilt into a certain direction. This means that the choice of applicable law may be limited nowadays in practice, which in principle may disadvantage stakeholders not familiar with the implicit choice of law.
At the same time, registry agreements for IGO/Governmental entities have some flexibilities built in as to applicable law or, to be more precise, as to conflicts arising from diverging obligations coming from the agreement with ICANN and the international law obligations. This is reflected for instance in section 7.16 of the model registry agreement.
This flexibility could be extended to other registries confronted with similar conflicts, not only with international law, but also when confronted with conflicts stemming from national law.
The flexibility could also take the form of a more wider recognition of freedom to choose the applicable law for the parties in the main agreements ICANN has.
The material you mention has, at least at first glance, some relevant rules of choice of law that in a foreigners eye seem to clearly tilt for the "forum" jurisdiction (for instance the "government interest analysis test").
But, what are the rules followed by California?
I see that for “contracts” (most relevant to contracting parties) the second restatement is followed apparently which provides the following:
"d.Contract: In the first instance, the courts must give effect to the law chosen by the parties. In the absence of any such agreement, the courts are directed to the “significant relationship” test of Section 6. Restatement (Second) of Conflict of Laws § 188. The contacts to take into account in determining those principles are:
i.the place of contracting,
ii.the place of negotiation of the contract,
iii.the place of performance,
iv.the location of the subject matter of the contract, and
v.the domicile, residence, nationality, place of incorporation and place of business of the parties."
It would be interesting to know how these contact points are construed in the relation between ICANN and its contracted parties, i.e. what the place of contracting is, the place of negotiation, place of performance, etc. - how they are intended to be construed by the contracting parties and what have been the actual analysis (if any) in the cases had up to today in disputes.
For "torts" (I guess including cases brought for damages by materially harmed parties that are not contractually bound to ICANN) the mentioned "governmental interest analysis" seems to apply ("California uses this test in determining the law applicable to tort claims.").
This test means that "the law of the forum is presumed to apply unless a party demonstrates otherwise."
I feel this could be seen as a significant tilt.
Experiences on how these rules (both on contracts and torts) apply in practice could be of interest and could be contrasted with ICANN, and registries and registrars (and other parties) based in other jurisdictions. That fact-finding exercise would also allow us to see whether and in what instances that "tilting" occurs.
A similar fact-finding should be done for what “applicable law” applies in internal mechanisms (such as the IRP).
2) Making sure that the hearings of the IRP are location-neutral
3) In the “multiple layers” doc, under “venue”, I had identified the following issues and solutions:
“Under venue or venues: multiplicity of venues and of providers of dispute resolution mechanisms (be it judicial or arbitration). Flexibilities as to standards, election of providers, language of proceedings, freedom to choose for the parties.]“ and “I guess that under “venue” we would need to consider the IRP and other internal redress mechanisms and how well they address the needs of a global stakeholder community, in terms of their composition, the language of proceedings, the venue(s), the providers, etc.].”
I may have missed other important points made before, but I’m sure Secretariat could help in collating all our essential inputs.
Kind regards
Jorge
Von: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] Im Auftrag von Greg Shatan Gesendet: Samstag, 12. August 2017 01:13 An: ws2-jurisdiction <ws2-jurisdiction@icann.org> Cc: Thomas Rickert <thomas@rickert.net> Betreff: [Ws2-jurisdiction] Jurisdiction Subgroup: The Path Forward
Jurisdiction Subgroup Members,
As explained by Staff at our last meeting on 9 August, we have until 11 October to submit a draft set of recommendations to the Plenary for consideration as a first reading if any such recommendations are to be accepted by the Plenary, published for Public Consultation and included in the Final WS2 Report.
In other words, we have about 8 weeks to develop a draft set of recommendations and come to consensus on these.
Obviously, given this time-frame, we have to accept that we will not be able to address all issues. In fact, the only realistic approach, if we want to deliver any recommendations, is to pick a handful of issues (2 to 4) on which we can all agree and for which we believe we can propose recommendations that will achieve consensus.
I remain optimistic that we can do this if we can agree, meaning everyone will have to compromise, to select this limited number of issues over the next very few weeks and work diligently at meetings and on the list to develop recommendations for these.
To reach this objective I would propose the following approach:
Each participant should pick one issue which they believe is in scope for us and post that issue to the list prior to our meeting of 23 August. More specifically: Issues should be very specific -- avoid open-ended, abstract or omnibus issues Issue description should be succinct -- 12 standard lines maximum Proposed solutions – if you have a possible solution or recommendation which should be considered, please include it (again, being succinct). Put your issue in a new email (not a reply), with the subject ISSUE: [name of issue] The sooner, the better I look forward to discussing this proposal at our next meeting of 16 August and I would encourage participants to comment on this proposal in response to this email prior to that meeting.
Greg
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
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_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
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I’m actually trying Kavouss. But in order to do that I need to know which laws you think ICANN should be exempt from. OFAC is one example and the answer to that is probably a general license rather than a formal immunity. The license is much easier to achieve. So there … that’s a solution. Another problem – the lack of choice of law in registrar/registry agreements – is also solvable (if we think it is important enough) by recommending the inclusion of choice of law in contracts. We don’t need immunity for that either. So … we can solve problems if they are specified with granularity. Tell me which laws are adverse to ICANN’s accountability and we can work on fixing the problem. Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Arasteh Sent: Saturday, August 19, 2017 11:53 AM To: Greg Shatan <gregshatanipc@gmail.com> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Jurisdiction Subgroup: The Path Forward Dear Greg I think those colleagues that comment on immunity or partial immunity removal problems perhaps could be kind enough to propose solutions for the fundamental and crucial problems such as OFAC. It may be necessary to indicate obstacle for such removal but it would be also necessary or even fundamental to propose solutions Every one is capable to raise concerns but everyone should also from time to time express sympathy and propose solutions WS2 would not be successful if we are not able to address these issues impartially and objectively Regards Kavouss Sent from my iPhone On 16 Aug 2017, at 08:14, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote: Dear Greg, I wish to point out the FOLLOWINGS: 1. I have provided you with the list of questions that i raised and did kindly include them in a more substantive list which is still valid PLUS those new questions raised at that famous meeting 2. I have asked, as supported by three other participants, a written answer to be provided by SAM taking into account the following: 2.1. Transcript was incomplete with sometimes broken and incoherent sentences and 2.2. Some of the questions were not answered. I INDICATED that to Bernie and he kindly confirmed that he has sent the raw transcript to the central office and expect to receive the corrected and valid version .I have not seen that version yet 2.3. I have also forwarded a copy of a blog received by 13 January 2017 in which many issues of our interest are well described together with some possible solution. I therefore do not see any reasons that I bother you and repeat them I reply on your kind action to consolidate them in a new list or amend the previously existed list . Regards Kavouss On Wed, Aug 16, 2017 at 6:52 AM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> > wrote: The answers are quite clearly in the transcripts and on the email list, and have been pointed by others. There is no basis for you to claim that i am refusing to answer, other than to be inflammatory. I have already stated that I have been traveling the last several days and unable to answer in detail. The "new" document you are referring to was created on June 16, as an empty list. The idea was to pull the potential issues from the multiple different documents where such potential issues have been suggested and have a single combined list of all of these issues to work from. Specifically, the idea was that members who either had put forward issues or had worked on litigation reviews or questionnaire response analysis where issues were raised would add those issues to the list. This idea was proposed to the group in June and there were no significant objections at that time. On virtually every agenda and call for the last two months, I have called for participants to add potential issues to the list. The "arbitrarily chosen few issues" are those put on the list by those participants who responded to this request. As for an "original document" that served as a central repository for the proposed issues, I'm honestly uncertain what document you are referring to. Can you please provide the specific "original issues doc" you refer to? That would be helpful. Greg On Wed, Aug 16, 2017 at 12:28 AM, parminder <parminder@itforchange.net <mailto:parminder@itforchange.net> > wrote: Greg Yes, everyone shd look up the transcripts, and one tries to do as much as one can. But one may miss things, and answers to ones questions may not even be there. So, am I to take that you refuse to answer the question about this new process where you have disconnected from the earlier process of issues framing and begun an entirely new one, with a doc containing, as far as I know, completely arbitrarily chosen few issues, and not others from the original document? parminder On Monday 14 August 2017 07:19 PM, Greg Shatan wrote: All, With apologies, I am traveling with family this weekend, through tomorrow, so I cannot reply individually or in detail until this evening. As a general matter; The Jurisdiction Subgroup has a wiki page All significant documents of the Subgroup should be stored or linked there. Each meeting has a wiki page on the Subgroup wiki. Each page has a recording and captioning and/or transcripts for that meeting. All Subgroup members are expected to review the transcripts or recordings for meetings they do not attend. If captioning/transcripts are unclear, they can be clarified by listening to the recording. All Google Docs have been shared in emails in this group. All Google Docs are stored in a Jurisdiction Subgroup folder. This folder has been shared in emails in this group. Most of the significant documents have been referred to and linked in our Work Plan, which is in the folder, on the wiki and in emails. Please use these tools to find documents, meeting information and emails. That would be very helpful to our progress. I will provide links this evening. I encourage others, unless time does not permit, to provide links to documents to which they refer, and I thank those who have done so in their correspondence. Greg On Mon, Aug 14, 2017 at 3:41 AM, Kavouss Arasteh <kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com> > wrote: dEAR gREG, I have already raised in two communications few questions which are still valid, even though some people ,in a recent peer communication has surprisingly told me believe that I have not raised any question at all during the entire period, which is unfair to say so as I have been very active and raised several questions .However, that is their views for which I do not care. . I may send some explanations in regard with some of them if the time permits. Regards Kavouss On Mon, Aug 14, 2017 at 8:57 AM, <Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> > wrote: Dear Greg and all, Here is my feedback: - The “.swiss” input into the questionnaire still stands, which identifies issues and also some possible solutions. (see attached) - In addition, I would like to recall the following inputs I made to the “influence document” (which I found here: https://community.icann.org/display/WEIA/Jurisdiction): “ICANNs main agreements (with registries and registrars) are generally silent on applicable law. This silence may be construed differently by different courts in different jurisdictions, although I feel there is a natural tendency in courts to apply its own laws if the agreement is silent and there are internal/national rules that tilt into a certain direction. This means that the choice of applicable law may be limited nowadays in practice, which in principle may disadvantage stakeholders not familiar with the implicit choice of law. At the same time, registry agreements for IGO/Governmental entities have some flexibilities built in as to applicable law or, to be more precise, as to conflicts arising from diverging obligations coming from the agreement with ICANN and the international law obligations. This is reflected for instance in section 7.16 of the model registry agreement. This flexibility could be extended to other registries confronted with similar conflicts, not only with international law, but also when confronted with conflicts stemming from national law. The flexibility could also take the form of a more wider recognition of freedom to choose the applicable law for the parties in the main agreements ICANN has. The material you mention has, at least at first glance, some relevant rules of choice of law that in a foreigners eye seem to clearly tilt for the "forum" jurisdiction (for instance the "government interest analysis test"). But, what are the rules followed by California? I see that for “contracts” (most relevant to contracting parties) the second restatement is followed apparently which provides the following: "d.Contract: In the first instance, the courts must give effect to the law chosen by the parties. In the absence of any such agreement, the courts are directed to the “significant relationship” test of Section 6. Restatement (Second) of Conflict of Laws § 188. The contacts to take into account in determining those principles are: i.the place of contracting, ii.the place of negotiation of the contract, iii.the place of performance, iv.the location of the subject matter of the contract, and v.the domicile, residence, nationality, place of incorporation and place of business of the parties." It would be interesting to know how these contact points are construed in the relation between ICANN and its contracted parties, i.e. what the place of contracting is, the place of negotiation, place of performance, etc. - how they are intended to be construed by the contracting parties and what have been the actual analysis (if any) in the cases had up to today in disputes. For "torts" (I guess including cases brought for damages by materially harmed parties that are not contractually bound to ICANN) the mentioned "governmental interest analysis" seems to apply ("California uses this test in determining the law applicable to tort claims."). This test means that "the law of the forum is presumed to apply unless a party demonstrates otherwise." I feel this could be seen as a significant tilt. Experiences on how these rules (both on contracts and torts) apply in practice could be of interest and could be contrasted with ICANN, and registries and registrars (and other parties) based in other jurisdictions. That fact-finding exercise would also allow us to see whether and in what instances that "tilting" occurs. A similar fact-finding should be done for what “applicable law” applies in internal mechanisms (such as the IRP). 2) Making sure that the hearings of the IRP are location-neutral 3) In the “multiple layers” doc, under “venue”, I had identified the following issues and solutions: “Under venue or venues: multiplicity of venues and of providers of dispute resolution mechanisms (be it judicial or arbitration). Flexibilities as to standards, election of providers, language of proceedings, freedom to choose for the parties.]“ and “I guess that under “venue” we would need to consider the IRP and other internal redress mechanisms and how well they address the needs of a global stakeholder community, in terms of their composition, the language of proceedings, the venue(s), the providers, etc.].” I may have missed other important points made before, but I’m sure Secretariat could help in collating all our essential inputs. 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 Greg Shatan Gesendet: Samstag, 12. August 2017 01:13 An: ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> > Cc: Thomas Rickert <thomas@rickert.net <mailto:thomas@rickert.net> > Betreff: [Ws2-jurisdiction] Jurisdiction Subgroup: The Path Forward Jurisdiction Subgroup Members, As explained by Staff at our last meeting on 9 August, we have until 11 October to submit a draft set of recommendations to the Plenary for consideration as a first reading if any such recommendations are to be accepted by the Plenary, published for Public Consultation and included in the Final WS2 Report. In other words, we have about 8 weeks to develop a draft set of recommendations and come to consensus on these. Obviously, given this time-frame, we have to accept that we will not be able to address all issues. In fact, the only realistic approach, if we want to deliver any recommendations, is to pick a handful of issues (2 to 4) on which we can all agree and for which we believe we can propose recommendations that will achieve consensus. I remain optimistic that we can do this if we can agree, meaning everyone will have to compromise, to select this limited number of issues over the next very few weeks and work diligently at meetings and on the list to develop recommendations for these. To reach this objective I would propose the following approach: * Each participant should pick one issue which they believe is in scope for us and post that issue to the list prior to our meeting of 23 August. More specifically: * Issues should be very specific -- avoid open-ended, abstract or omnibus issues * Issue description should be succinct -- 12 standard lines maximum * Proposed solutions – if you have a possible solution or recommendation which should be considered, please include it (again, being succinct). * Put your issue in a new email (not a reply), with the subject ISSUE: [name of issue] * The sooner, the better I look forward to discussing this proposal at our next meeting of 16 August and I would encourage participants to comment on this proposal in response to this email prior to that 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 <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
On Wednesday 16 August 2017 10:22 AM, Greg Shatan wrote:
snip
As for an "original document" that served as a central repository for the proposed issues, I'm honestly uncertain what document you are referring to. Can you please provide the specific "original issues doc" you refer to? That would be helpful.
https://community.icann.org/download/attachments/59643282/InfluenceofExistin... parminder
Greg
On Wed, Aug 16, 2017 at 12:28 AM, parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>> wrote:
Greg
Yes, everyone shd look up the transcripts, and one tries to do as much as one can. But one may miss things, and answers to ones questions may not even be there.
So, am I to take that you refuse to answer the question about this new process where you have disconnected from the earlier process of issues framing and begun an entirely new one, with a doc containing, as far as I know, completely arbitrarily chosen few issues, and not others from the original document?
parminder
On Monday 14 August 2017 07:19 PM, Greg Shatan wrote:
All,
With apologies, I am traveling with family this weekend, through tomorrow, so I cannot reply individually or in detail until this evening.
As a general matter;
The Jurisdiction Subgroup has a wiki page All significant documents of the Subgroup should be stored or linked there. Each meeting has a wiki page on the Subgroup wiki. Each page has a recording and captioning and/or transcripts for that meeting.
All Subgroup members are expected to review the transcripts or recordings for meetings they do not attend. If captioning/transcripts are unclear, they can be clarified by listening to the recording.
All Google Docs have been shared in emails in this group. All Google Docs are stored in a Jurisdiction Subgroup folder. This folder has been shared in emails in this group.
Most of the significant documents have been referred to and linked in our Work Plan, which is in the folder, on the wiki and in emails.
Please use these tools to find documents, meeting information and emails. That would be very helpful to our progress.
I will provide links this evening. I encourage others, unless time does not permit, to provide links to documents to which they refer, and I thank those who have done so in their correspondence.
Greg
On Mon, Aug 14, 2017 at 3:41 AM, Kavouss Arasteh <kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com>> wrote:
dEAR gREG, I have already raised in two communications few questions which are still valid, even though some people ,in a recent peer communication has surprisingly told me believe that I have not raised any question at all during the entire period, which is unfair to say so as I have been very active and raised several questions .However, that is their views for which I do not care. . I may send some explanations in regard with some of them if the time permits. Regards Kavouss
On Mon, Aug 14, 2017 at 8:57 AM, <Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch>> wrote:
Dear Greg and all,
Here is my feedback:
- The “.swiss” input into the questionnaire still stands, which identifies issues and also some possible solutions. (see attached)
- In addition, I would like to recall the following inputs I made to the “influence document” (which I found here: https://community.icann.org/display/WEIA/Jurisdiction <https://community.icann.org/display/WEIA/Jurisdiction>):
“ICANNs main agreements (with registries and registrars) are generally silent on applicable law. This silence may be construed differently by different courts in different jurisdictions, although I feel there is a natural tendency in courts to apply its own laws if the agreement is silent and there are internal/national rules that tilt into a certain direction. This means that the choice of applicable law may be limited nowadays in practice, which in principle may disadvantage stakeholders not familiar with the implicit choice of law.
At the same time, registry agreements for IGO/Governmental entities have some flexibilities built in as to applicable law or, to be more precise, as to conflicts arising from diverging obligations coming from the agreement with ICANN and the international law obligations. This is reflected for instance in section 7.16 of the model registry agreement.
This flexibility could be extended to other registries confronted with similar conflicts, not only with international law, but also when confronted with conflicts stemming from national law.
The flexibility could also take the form of a more wider recognition of freedom to choose the applicable law for the parties in the main agreements ICANN has.
The material you mention has, at least at first glance, some relevant rules of choice of law that in a foreigners eye seem to clearly tilt for the "forum" jurisdiction (for instance the "government interest analysis test").
But, what are the rules followed by California?
I see that for “contracts” (most relevant to contracting parties) the second restatement is followed apparently which provides the following:
"d.Contract: In the first instance, the courts must give effect to the law chosen by the parties. In the absence of any such agreement, the courts are directed to the “significant relationship” test of Section 6. Restatement (Second) of Conflict of Laws § 188. The contacts to take into account in determining those principles are:
i.the place of contracting,
ii.the place of negotiation of the contract,
iii.the place of performance,
iv.the location of the subject matter of the contract, and
v.the domicile, residence, nationality, place of incorporation and place of business of the parties."
It would be interesting to know how these contact points are construed in the relation between ICANN and its contracted parties, i.e. what the place of contracting is, the place of negotiation, place of performance, etc. - how they are intended to be construed by the contracting parties and what have been the actual analysis (if any) in the cases had up to today in disputes.
For "torts" (I guess including cases brought for damages by materially harmed parties that are not contractually bound to ICANN) the mentioned "governmental interest analysis" seems to apply ("California uses this test in determining the law applicable to tort claims.").
This test means that "the law of the forum is presumed to apply unless a party demonstrates otherwise."
I feel this could be seen as a significant tilt.
_Experiences on how these rules (both on contracts and torts) apply in practice could be of interest and could be contrasted with ICANN, and registries and registrars (and other parties) based in other jurisdictions. That fact-finding exercise would also allow us to see whether and in what instances that "tilting" occurs._
_A similar fact-finding should be done for what “applicable law” applies in internal mechanisms (such as the IRP)._
2) Making sure that the hearings of the IRP are location-neutral
3) In the “multiple layers” doc, under “venue”, I had identified the following issues and solutions:
“Under venue or venues: multiplicity of venues and of providers of dispute resolution mechanisms (be it judicial or arbitration). Flexibilities as to standards, election of providers, language of proceedings, freedom to choose for the parties.]“ and “I guess that under “venue” we would need to consider the IRP and other internal redress mechanisms and how well they address the needs of a global stakeholder community, in terms of their composition, the language of proceedings, the venue(s), the providers, etc.].”
I may have missed other important points made before, but I’m sure Secretariat could help in collating all our essential inputs.
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 *Greg Shatan *Gesendet:* Samstag, 12. August 2017 01:13 *An:* ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>> *Cc:* Thomas Rickert <thomas@rickert.net <mailto:thomas@rickert.net>> *Betreff:* [Ws2-jurisdiction] Jurisdiction Subgroup: The Path Forward
Jurisdiction Subgroup Members,
As explained by Staff at our last meeting on 9 August, we have until *11 October* to submit a draft set of recommendations to the Plenary for consideration as a first reading if any such recommendations are to be accepted by the Plenary, published for Public Consultation and included in the Final WS2 Report.
In other words, we have about *8 weeks* to develop a draft set of recommendations and come to consensus on these.
Obviously, given this time-frame, we have to accept that we will not be able to address all issues. In fact, the only realistic approach, if we want to deliver any recommendations, is to pick a handful of issues (2 to 4) on which we can all agree and for which we believe we can propose recommendations that will achieve consensus.
I remain optimistic that we can do this if we can agree, meaning everyone will have to compromise, to select this limited number of issues over the next very few weeks and work diligently at meetings and on the list to develop recommendations for these.
To reach this objective I would propose the following approach:
* *Each participant should pick _one_ issue which they believe is in scope for us and post that issue to the list prior to our meeting of 23 August. More specifically:*
o *Issues should be very specific -- avoid open-ended, abstract or omnibus issues* o *Issue description should be succinct -- 12 standard lines maximum* o *Proposed solutions – if you have a possible solution or recommendation which should be considered, please include it (again, being succinct).* o *Put your issue in a new email (not a reply), with the subject ISSUE: [name of issue]* o *The sooner, the better*
I look forward to discussing this proposal at our next meeting of *16 August* and I would encourage participants to comment on this proposal in response to this email prior to that meeting.
Greg
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>
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Dear Greg, May I kindly request confirmation that you have read this message and will take the „issues“ I mention on the latest document? (a task where staff could certainly lend a hand) Best regards Jorge Von: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] Im Auftrag von Jorge.Cancio@bakom.admin.ch Gesendet: Montag, 14. August 2017 08:57 An: gregshatanipc@gmail.com; ws2-jurisdiction@icann.org Cc: thomas@rickert.net Betreff: Re: [Ws2-jurisdiction] Jurisdiction Subgroup: The Path Forward Dear Greg and all, Here is my feedback: - The “.swiss” input into the questionnaire still stands, which identifies issues and also some possible solutions. (see attached) - In addition, I would like to recall the following inputs I made to the “influence document” (which I found here: https://community.icann.org/display/WEIA/Jurisdiction): “ICANNs main agreements (with registries and registrars) are generally silent on applicable law. This silence may be construed differently by different courts in different jurisdictions, although I feel there is a natural tendency in courts to apply its own laws if the agreement is silent and there are internal/national rules that tilt into a certain direction. This means that the choice of applicable law may be limited nowadays in practice, which in principle may disadvantage stakeholders not familiar with the implicit choice of law. At the same time, registry agreements for IGO/Governmental entities have some flexibilities built in as to applicable law or, to be more precise, as to conflicts arising from diverging obligations coming from the agreement with ICANN and the international law obligations. This is reflected for instance in section 7.16 of the model registry agreement. This flexibility could be extended to other registries confronted with similar conflicts, not only with international law, but also when confronted with conflicts stemming from national law. The flexibility could also take the form of a more wider recognition of freedom to choose the applicable law for the parties in the main agreements ICANN has. The material you mention has, at least at first glance, some relevant rules of choice of law that in a foreigners eye seem to clearly tilt for the "forum" jurisdiction (for instance the "government interest analysis test"). But, what are the rules followed by California? I see that for “contracts” (most relevant to contracting parties) the second restatement is followed apparently which provides the following: "d.Contract: In the first instance, the courts must give effect to the law chosen by the parties. In the absence of any such agreement, the courts are directed to the “significant relationship” test of Section 6. Restatement (Second) of Conflict of Laws § 188. The contacts to take into account in determining those principles are: i.the place of contracting, ii.the place of negotiation of the contract, iii.the place of performance, iv.the location of the subject matter of the contract, and v.the domicile, residence, nationality, place of incorporation and place of business of the parties." It would be interesting to know how these contact points are construed in the relation between ICANN and its contracted parties, i.e. what the place of contracting is, the place of negotiation, place of performance, etc. - how they are intended to be construed by the contracting parties and what have been the actual analysis (if any) in the cases had up to today in disputes. For "torts" (I guess including cases brought for damages by materially harmed parties that are not contractually bound to ICANN) the mentioned "governmental interest analysis" seems to apply ("California uses this test in determining the law applicable to tort claims."). This test means that "the law of the forum is presumed to apply unless a party demonstrates otherwise." I feel this could be seen as a significant tilt. Experiences on how these rules (both on contracts and torts) apply in practice could be of interest and could be contrasted with ICANN, and registries and registrars (and other parties) based in other jurisdictions. That fact-finding exercise would also allow us to see whether and in what instances that "tilting" occurs. A similar fact-finding should be done for what “applicable law” applies in internal mechanisms (such as the IRP). 2) Making sure that the hearings of the IRP are location-neutral 3) In the “multiple layers” doc, under “venue”, I had identified the following issues and solutions: “Under venue or venues: multiplicity of venues and of providers of dispute resolution mechanisms (be it judicial or arbitration). Flexibilities as to standards, election of providers, language of proceedings, freedom to choose for the parties.]“ and “I guess that under “venue” we would need to consider the IRP and other internal redress mechanisms and how well they address the needs of a global stakeholder community, in terms of their composition, the language of proceedings, the venue(s), the providers, etc.].” I may have missed other important points made before, but I’m sure Secretariat could help in collating all our essential inputs. Kind regards Jorge Von: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] Im Auftrag von Greg Shatan Gesendet: Samstag, 12. August 2017 01:13 An: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Cc: Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>> Betreff: [Ws2-jurisdiction] Jurisdiction Subgroup: The Path Forward Jurisdiction Subgroup Members, As explained by Staff at our last meeting on 9 August, we have until 11 October to submit a draft set of recommendations to the Plenary for consideration as a first reading if any such recommendations are to be accepted by the Plenary, published for Public Consultation and included in the Final WS2 Report. In other words, we have about 8 weeks to develop a draft set of recommendations and come to consensus on these. Obviously, given this time-frame, we have to accept that we will not be able to address all issues. In fact, the only realistic approach, if we want to deliver any recommendations, is to pick a handful of issues (2 to 4) on which we can all agree and for which we believe we can propose recommendations that will achieve consensus. I remain optimistic that we can do this if we can agree, meaning everyone will have to compromise, to select this limited number of issues over the next very few weeks and work diligently at meetings and on the list to develop recommendations for these. To reach this objective I would propose the following approach: * Each participant should pick one issue which they believe is in scope for us and post that issue to the list prior to our meeting of 23 August. More specifically: * Issues should be very specific -- avoid open-ended, abstract or omnibus issues * Issue description should be succinct -- 12 standard lines maximum * Proposed solutions – if you have a possible solution or recommendation which should be considered, please include it (again, being succinct). * Put your issue in a new email (not a reply), with the subject ISSUE: [name of issue] * The sooner, the better I look forward to discussing this proposal at our next meeting of 16 August and I would encourage participants to comment on this proposal in response to this email prior to that meeting. Greg
Your message is noted. On Wed, Aug 16, 2017 at 2:56 AM <Jorge.Cancio@bakom.admin.ch> wrote:
Dear Greg,
May I kindly request confirmation that you have read this message and will take the „issues“ I mention on the latest document? (a task where staff could certainly lend a hand)
Best regards
Jorge
*Von:* ws2-jurisdiction-bounces@icann.org [mailto: ws2-jurisdiction-bounces@icann.org] *Im Auftrag von * Jorge.Cancio@bakom.admin.ch *Gesendet:* Montag, 14. August 2017 08:57 *An:* gregshatanipc@gmail.com; ws2-jurisdiction@icann.org *Cc:* thomas@rickert.net *Betreff:* Re: [Ws2-jurisdiction] Jurisdiction Subgroup: The Path Forward
Dear Greg and all,
Here is my feedback:
- The “.swiss” input into the questionnaire still stands, which identifies issues and also some possible solutions. (see attached)
- In addition, I would like to recall the following inputs I made to the “influence document” (which I found here: https://community.icann.org/display/WEIA/Jurisdiction):
“ICANNs main agreements (with registries and registrars) are generally silent on applicable law. This silence may be construed differently by different courts in different jurisdictions, although I feel there is a natural tendency in courts to apply its own laws if the agreement is silent and there are internal/national rules that tilt into a certain direction. This means that the choice of applicable law may be limited nowadays in practice, which in principle may disadvantage stakeholders not familiar with the implicit choice of law.
At the same time, registry agreements for IGO/Governmental entities have some flexibilities built in as to applicable law or, to be more precise, as to conflicts arising from diverging obligations coming from the agreement with ICANN and the international law obligations. This is reflected for instance in section 7.16 of the model registry agreement.
This flexibility could be extended to other registries confronted with similar conflicts, not only with international law, but also when confronted with conflicts stemming from national law.
The flexibility could also take the form of a more wider recognition of freedom to choose the applicable law for the parties in the main agreements ICANN has.
The material you mention has, at least at first glance, some relevant rules of choice of law that in a foreigners eye seem to clearly tilt for the "forum" jurisdiction (for instance the "government interest analysis test").
But, what are the rules followed by California?
I see that for “contracts” (most relevant to contracting parties) the second restatement is followed apparently which provides the following:
"d.Contract: In the first instance, the courts must give effect to the law chosen by the parties. In the absence of any such agreement, the courts are directed to the “significant relationship” test of Section 6. Restatement (Second) of Conflict of Laws § 188. The contacts to take into account in determining those principles are:
i.the place of contracting,
ii.the place of negotiation of the contract,
iii.the place of performance,
iv.the location of the subject matter of the contract, and
v.the domicile, residence, nationality, place of incorporation and place of business of the parties."
It would be interesting to know how these contact points are construed in the relation between ICANN and its contracted parties, i.e. what the place of contracting is, the place of negotiation, place of performance, etc. - how they are intended to be construed by the contracting parties and what have been the actual analysis (if any) in the cases had up to today in disputes.
For "torts" (I guess including cases brought for damages by materially harmed parties that are not contractually bound to ICANN) the mentioned "governmental interest analysis" seems to apply ("California uses this test in determining the law applicable to tort claims.").
This test means that "the law of the forum is presumed to apply unless a party demonstrates otherwise."
I feel this could be seen as a significant tilt.
*Experiences on how these rules (both on contracts and torts) apply in practice could be of interest and could be contrasted with ICANN, and registries and registrars (and other parties) based in other jurisdictions. That fact-finding exercise would also allow us to see whether and in what instances that "tilting" occurs.*
*A similar fact-finding should be done for what “applicable law” applies in internal mechanisms (such as the IRP).*
2) Making sure that the hearings of the IRP are location-neutral
3) In the “multiple layers” doc, under “venue”, I had identified the following issues and solutions:
“Under venue or venues: multiplicity of venues and of providers of dispute resolution mechanisms (be it judicial or arbitration). Flexibilities as to standards, election of providers, language of proceedings, freedom to choose for the parties.]“ and “I guess that under “venue” we would need to consider the IRP and other internal redress mechanisms and how well they address the needs of a global stakeholder community, in terms of their composition, the language of proceedings, the venue(s), the providers, etc.].”
I may have missed other important points made before, but I’m sure Secretariat could help in collating all our essential inputs.
Kind regards
Jorge
*Von:* ws2-jurisdiction-bounces@icann.org [ mailto:ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *Im Auftrag von *Greg Shatan *Gesendet:* Samstag, 12. August 2017 01:13 *An:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Cc:* Thomas Rickert <thomas@rickert.net> *Betreff:* [Ws2-jurisdiction] Jurisdiction Subgroup: The Path Forward
Jurisdiction Subgroup Members,
As explained by Staff at our last meeting on 9 August, we have until *11 October* to submit a draft set of recommendations to the Plenary for consideration as a first reading if any such recommendations are to be accepted by the Plenary, published for Public Consultation and included in the Final WS2 Report.
In other words, we have about *8 weeks* to develop a draft set of recommendations and come to consensus on these.
Obviously, given this time-frame, we have to accept that we will not be able to address all issues. In fact, the only realistic approach, if we want to deliver any recommendations, is to pick a handful of issues (2 to 4) on which we can all agree and for which we believe we can propose recommendations that will achieve consensus.
I remain optimistic that we can do this if we can agree, meaning everyone will have to compromise, to select this limited number of issues over the next very few weeks and work diligently at meetings and on the list to develop recommendations for these.
To reach this objective I would propose the following approach:
- *Each participant should pick one issue which they believe is in scope for us and post that issue to the list prior to our meeting of 23 August. More specifically:*
- *Issues should be very specific -- avoid open-ended, abstract or omnibus issues* - *Issue description should be succinct -- 12 standard lines maximum* - *Proposed solutions – if you have a possible solution or recommendation which should be considered, please include it (again, being succinct).* - *Put your issue in a new email (not a reply), with the subject ISSUE: [name of issue]* - *The sooner, the better*
I look forward to discussing this proposal at our next meeting of *16 August* and I would encourage participants to comment on this proposal in response to this email prior to that meeting.
Greg
Dear all, I propose to work on the issue on partial immunity. The core functions of ICANN should not be only decided by the multi-stakeholder community, covering legislation, administration and dispute settlement. States (and International Organisations) should refrain from exercising its concurrent jurisdiction, respecting ICANN's special role and governance model. As quick and clear solutions are not easily at hand (e.g. unilateral acceptance of immunity by States or a treaty), problems of interference of States should be settled by negotations or judicial dicisions, depending on the relevant jurisdiction (e.g. OFAC). This solution is cumbersome but may result in sufficient immunity of ICANN, being in line of present international policy of restricting immunities for international entities. Argumentation could be diverse, e.g. granting partial immunity for ICANN's special role or no interference in third party rights. Administrations and courts must accept that only the multi-stakeholder model is the appropriate forum for such questions. Best, Erich ________________________________________ Von: ws2-jurisdiction-bounces@icann.org [ws2-jurisdiction-bounces@icann.org] im Auftrag von Greg Shatan [gregshatanipc@gmail.com] Gesendet: Samstag, 12. August 2017 01:13 An: ws2-jurisdiction Cc: Thomas Rickert Betreff: [Ws2-jurisdiction] Jurisdiction Subgroup: The Path Forward Jurisdiction Subgroup Members, As explained by Staff at our last meeting on 9 August, we have until 11 October to submit a draft set of recommendations to the Plenary for consideration as a first reading if any such recommendations are to be accepted by the Plenary, published for Public Consultation and included in the Final WS2 Report. In other words, we have about 8 weeks to develop a draft set of recommendations and come to consensus on these. Obviously, given this time-frame, we have to accept that we will not be able to address all issues. In fact, the only realistic approach, if we want to deliver any recommendations, is to pick a handful of issues (2 to 4) on which we can all agree and for which we believe we can propose recommendations that will achieve consensus. I remain optimistic that we can do this if we can agree, meaning everyone will have to compromise, to select this limited number of issues over the next very few weeks and work diligently at meetings and on the list to develop recommendations for these. To reach this objective I would propose the following approach: * Each participant should pick one issue which they believe is in scope for us and post that issue to the list prior to our meeting of 23 August. More specifically: * Issues should be very specific -- avoid open-ended, abstract or omnibus issues * Issue description should be succinct -- 12 standard lines maximum * Proposed solutions – if you have a possible solution or recommendation which should be considered, please include it (again, being succinct). * Put your issue in a new email (not a reply), with the subject ISSUE: [name of issue] * The sooner, the better I look forward to discussing this proposal at our next meeting of 16 August and I would encourage participants to comment on this proposal in response to this email prior to that meeting. Greg
I must take the opportunity to highlight that a number of ccTLDs may object to any form of immunity for ICANN and/or PTI. Some of us still remember the early days of ICANN, and while we trust the current management and Board, we do not want there to be a possibility that a future set of incumbents could return that unfortunate approach. On 16/08/17 12:47, Schweighofer Erich wrote:
Dear all,
I propose to work on the issue on partial immunity. The core functions of ICANN should not be only decided by the multi-stakeholder community, covering legislation, administration and dispute settlement. States (and International Organisations) should refrain from exercising its concurrent jurisdiction, respecting ICANN's special role and governance model. As quick and clear solutions are not easily at hand (e.g. unilateral acceptance of immunity by States or a treaty), problems of interference of States should be settled by negotations or judicial dicisions, depending on the relevant jurisdiction (e.g. OFAC). This solution is cumbersome but may result in sufficient immunity of ICANN, being in line of present international policy of restricting immunities for international entities. Argumentation could be diverse, e.g. granting partial immunity for ICANN's special role or no interference in third party rights. Administrations and courts must accept that only the multi-stakeholder model is the appropriate forum for such questions.
Best, Erich
________________________________________ Von: ws2-jurisdiction-bounces@icann.org [ws2-jurisdiction-bounces@icann.org] im Auftrag von Greg Shatan [gregshatanipc@gmail.com] Gesendet: Samstag, 12. August 2017 01:13 An: ws2-jurisdiction Cc: Thomas Rickert Betreff: [Ws2-jurisdiction] Jurisdiction Subgroup: The Path Forward
Jurisdiction Subgroup Members,
As explained by Staff at our last meeting on 9 August, we have until 11 October to submit a draft set of recommendations to the Plenary for consideration as a first reading if any such recommendations are to be accepted by the Plenary, published for Public Consultation and included in the Final WS2 Report.
In other words, we have about 8 weeks to develop a draft set of recommendations and come to consensus on these.
Obviously, given this time-frame, we have to accept that we will not be able to address all issues. In fact, the only realistic approach, if we want to deliver any recommendations, is to pick a handful of issues (2 to 4) on which we can all agree and for which we believe we can propose recommendations that will achieve consensus.
I remain optimistic that we can do this if we can agree, meaning everyone will have to compromise, to select this limited number of issues over the next very few weeks and work diligently at meetings and on the list to develop recommendations for these.
To reach this objective I would propose the following approach:
* Each participant should pick one issue which they believe is in scope for us and post that issue to the list prior to our meeting of 23 August. More specifically: * Issues should be very specific -- avoid open-ended, abstract or omnibus issues * Issue description should be succinct -- 12 standard lines maximum * Proposed solutions – if you have a possible solution or recommendation which should be considered, please include it (again, being succinct). * Put your issue in a new email (not a reply), with the subject ISSUE: [name of issue] * The sooner, the better I look forward to discussing this proposal at our next meeting of 16 August and I would encourage participants to comment on this proposal in response to this email prior to that meeting.
Greg _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Dear Nigel Thank you very much for your comments. Pls kindly describe your concerns in a more comprehensive manner . What was the unfortunate approach? Pls kindly recognize that some people residing in those countries under OFAC sanctions are suffering a lot .we need to think of those people as well internet plays a crucial role in their daily life thus any burden should be shared.ICANN should avoid being politicized. Regards Kavouss On Wed, Aug 16, 2017 at 2:07 PM, Nigel Roberts <nigel@channelisles.net> wrote:
I must take the opportunity to highlight that a number of ccTLDs may object to any form of immunity for ICANN and/or PTI.
Some of us still remember the early days of ICANN, and while we trust the current management and Board, we do not want there to be a possibility that a future set of incumbents could return that unfortunate approach.
On 16/08/17 12:47, Schweighofer Erich wrote:
Dear all,
I propose to work on the issue on partial immunity. The core functions of ICANN should not be only decided by the multi-stakeholder community, covering legislation, administration and dispute settlement. States (and International Organisations) should refrain from exercising its concurrent jurisdiction, respecting ICANN's special role and governance model. As quick and clear solutions are not easily at hand (e.g. unilateral acceptance of immunity by States or a treaty), problems of interference of States should be settled by negotations or judicial dicisions, depending on the relevant jurisdiction (e.g. OFAC). This solution is cumbersome but may result in sufficient immunity of ICANN, being in line of present international policy of restricting immunities for international entities. Argumentation could be diverse, e.g. granting partial immunity for ICANN's special role or no interference in third party rights. Administrations and courts must accept that only the multi-stakeholder model is the appropriate forum for such questions.
Best, Erich
________________________________________ Von: ws2-jurisdiction-bounces@icann.org [ws2-jurisdiction-bounces@ican n.org] im Auftrag von Greg Shatan [gregshatanipc@gmail.com] Gesendet: Samstag, 12. August 2017 01:13 An: ws2-jurisdiction Cc: Thomas Rickert Betreff: [Ws2-jurisdiction] Jurisdiction Subgroup: The Path Forward
Jurisdiction Subgroup Members,
As explained by Staff at our last meeting on 9 August, we have until 11 October to submit a draft set of recommendations to the Plenary for consideration as a first reading if any such recommendations are to be accepted by the Plenary, published for Public Consultation and included in the Final WS2 Report.
In other words, we have about 8 weeks to develop a draft set of recommendations and come to consensus on these.
Obviously, given this time-frame, we have to accept that we will not be able to address all issues. In fact, the only realistic approach, if we want to deliver any recommendations, is to pick a handful of issues (2 to 4) on which we can all agree and for which we believe we can propose recommendations that will achieve consensus.
I remain optimistic that we can do this if we can agree, meaning everyone will have to compromise, to select this limited number of issues over the next very few weeks and work diligently at meetings and on the list to develop recommendations for these.
To reach this objective I would propose the following approach:
* Each participant should pick one issue which they believe is in scope for us and post that issue to the list prior to our meeting of 23 August. More specifically: * Issues should be very specific -- avoid open-ended, abstract or omnibus issues * Issue description should be succinct -- 12 standard lines maximum * Proposed solutions – if you have a possible solution or recommendation which should be considered, please include it (again, being succinct). * Put your issue in a new email (not a reply), with the subject ISSUE: [name of issue] * The sooner, the better I look forward to discussing this proposal at our next meeting of 16 August and I would encourage participants to comment on this proposal in response to this email prior to that 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
Erich, Partial Immunity is a remedy. Can you describe in somewhat more detail the specific issue you are trying to resolve? That way we can consider the various potential remedies for that issue. Thanks! Greg On Wed, Aug 16, 2017 at 8:38 AM Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote:
Dear Nigel Thank you very much for your comments. Pls kindly describe your concerns in a more comprehensive manner . What was the unfortunate approach? Pls kindly recognize that some people residing in those countries under OFAC
sanctions are suffering a lot .we need to think of those people as well internet plays a crucial role in their daily life thus any burden should be shared.ICANN should avoid being politicized.
Regards
Kavouss
On Wed, Aug 16, 2017 at 2:07 PM, Nigel Roberts <nigel@channelisles.net> wrote:
I must take the opportunity to highlight that a number of ccTLDs may object to any form of immunity for ICANN and/or PTI.
Some of us still remember the early days of ICANN, and while we trust the current management and Board, we do not want there to be a possibility that a future set of incumbents could return that unfortunate approach.
On 16/08/17 12:47, Schweighofer Erich wrote:
Dear all,
I propose to work on the issue on partial immunity. The core functions of ICANN should not be only decided by the multi-stakeholder community, covering legislation, administration and dispute settlement. States (and International Organisations) should refrain from exercising its concurrent jurisdiction, respecting ICANN's special role and governance model. As quick and clear solutions are not easily at hand (e.g. unilateral acceptance of immunity by States or a treaty), problems of interference of States should be settled by negotations or judicial dicisions, depending on the relevant jurisdiction (e.g. OFAC). This solution is cumbersome but may result in sufficient immunity of ICANN, being in line of present international policy of restricting immunities for international entities. Argumentation could be diverse, e.g. granting partial immunity for ICANN's special role or no interference in third party rights. Administrations and courts must accept that only the multi-stakeholder model is the appropriate forum for such questions.
Best, Erich
________________________________________ Von: ws2-jurisdiction-bounces@icann.org [ ws2-jurisdiction-bounces@icann.org] im Auftrag von Greg Shatan [ gregshatanipc@gmail.com] Gesendet: Samstag, 12. August 2017 01:13 An: ws2-jurisdiction Cc: Thomas Rickert Betreff: [Ws2-jurisdiction] Jurisdiction Subgroup: The Path Forward
Jurisdiction Subgroup Members,
As explained by Staff at our last meeting on 9 August, we have until 11 October to submit a draft set of recommendations to the Plenary for consideration as a first reading if any such recommendations are to be accepted by the Plenary, published for Public Consultation and included in the Final WS2 Report.
In other words, we have about 8 weeks to develop a draft set of recommendations and come to consensus on these.
Obviously, given this time-frame, we have to accept that we will not be able to address all issues. In fact, the only realistic approach, if we want to deliver any recommendations, is to pick a handful of issues (2 to 4) on which we can all agree and for which we believe we can propose recommendations that will achieve consensus.
I remain optimistic that we can do this if we can agree, meaning everyone will have to compromise, to select this limited number of issues over the next very few weeks and work diligently at meetings and on the list to develop recommendations for these.
To reach this objective I would propose the following approach:
* Each participant should pick one issue which they believe is in scope for us and post that issue to the list prior to our meeting of 23 August. More specifically: * Issues should be very specific -- avoid open-ended, abstract or omnibus issues * Issue description should be succinct -- 12 standard lines maximum * Proposed solutions – if you have a possible solution or recommendation which should be considered, please include it (again, being succinct). * Put your issue in a new email (not a reply), with the subject ISSUE: [name of issue] * The sooner, the better I look forward to discussing this proposal at our next meeting of 16 August and I would encourage participants to comment on this proposal in response to this email prior to that 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
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
On Wednesday 16 August 2017 06:26 PM, Greg Shatan wrote:
Erich,
Partial Immunity is a remedy.
I described it, in the statement of the issue I raised, which is exemplified in terms of various kinds of ramifications in the docs that are linked (and submitted to the group) and also a longer description of the issue is contained in the 5 points that I recently cut pasted from the old "influence of jurisdiction" doc.. parminder
Can you describe in somewhat more detail the specific issue you are trying to resolve? That way we can consider the various potential remedies for that issue.
Thanks!
Greg
On Wed, Aug 16, 2017 at 8:38 AM Kavouss Arasteh <kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com>> wrote:
Dear Nigel Thank you very much for your comments. Pls kindly describe your concerns in a more comprehensive manner . What was the unfortunate approach? Pls kindly recognize that some people residing in those countries under OFAC
sanctions are suffering a lot .we need to think of those people as well internet plays a crucial role in their daily life thus any burden should be shared.ICANN should avoid being politicized.
Regards
Kavouss
On Wed, Aug 16, 2017 at 2:07 PM, Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net>> wrote:
I must take the opportunity to highlight that a number of ccTLDs may object to any form of immunity for ICANN and/or PTI.
Some of us still remember the early days of ICANN, and while we trust the current management and Board, we do not want there to be a possibility that a future set of incumbents could return that unfortunate approach.
On 16/08/17 12:47, Schweighofer Erich wrote:
Dear all,
I propose to work on the issue on partial immunity. The core functions of ICANN should not be only decided by the multi-stakeholder community, covering legislation, administration and dispute settlement. States (and International Organisations) should refrain from exercising its concurrent jurisdiction, respecting ICANN's special role and governance model. As quick and clear solutions are not easily at hand (e.g. unilateral acceptance of immunity by States or a treaty), problems of interference of States should be settled by negotations or judicial dicisions, depending on the relevant jurisdiction (e.g. OFAC). This solution is cumbersome but may result in sufficient immunity of ICANN, being in line of present international policy of restricting immunities for international entities. Argumentation could be diverse, e.g. granting partial immunity for ICANN's special role or no interference in third party rights. Administrations and courts must accept that only the multi-stakeholder model is the appropriate forum for such questions.
Best, Erich
________________________________________ Von: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] im Auftrag von Greg Shatan [gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>] Gesendet: Samstag, 12. August 2017 01:13 An: ws2-jurisdiction Cc: Thomas Rickert Betreff: [Ws2-jurisdiction] Jurisdiction Subgroup: The Path Forward
Jurisdiction Subgroup Members,
As explained by Staff at our last meeting on 9 August, we have until 11 October to submit a draft set of recommendations to the Plenary for consideration as a first reading if any such recommendations are to be accepted by the Plenary, published for Public Consultation and included in the Final WS2 Report.
In other words, we have about 8 weeks to develop a draft set of recommendations and come to consensus on these.
Obviously, given this time-frame, we have to accept that we will not be able to address all issues. In fact, the only realistic approach, if we want to deliver any recommendations, is to pick a handful of issues (2 to 4) on which we can all agree and for which we believe we can propose recommendations that will achieve consensus.
I remain optimistic that we can do this if we can agree, meaning everyone will have to compromise, to select this limited number of issues over the next very few weeks and work diligently at meetings and on the list to develop recommendations for these.
To reach this objective I would propose the following approach:
* Each participant should pick one issue which they believe is in scope for us and post that issue to the list prior to our meeting of 23 August. More specifically: * Issues should be very specific -- avoid open-ended, abstract or omnibus issues * Issue description should be succinct -- 12 standard lines maximum * Proposed solutions – if you have a possible solution or recommendation which should be considered, please include it (again, being succinct). * Put your issue in a new email (not a reply), with the subject ISSUE: [name of issue] * The sooner, the better I look forward to discussing this proposal at our next meeting of 16 August and I would encourage participants to comment on this proposal in response to this email prior to that meeting.
Greg _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
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participants (8)
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Arasteh -
Greg Shatan -
Jorge.Cancio＠bakom.admin.ch -
Kavouss Arasteh
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Nigel Roberts -
parminder -
Paul Rosenzweig -
Schweighofer Erich