...
Sub-group Members: Andrew Harris, Avri Doria, Cheryl Langdon-Orr, David McAuley, Erich Schweighofer, Finn Petersen, Greg Shatan, Jeff Neuman, Jorge Cancio, Kavouss Arasteh, Milton Mueller, Pedro da silva, Phil Marano, Philip Corwin, Rafael Perez Galindo, Robin Gross, Samantha Eisner, Tatiana Tropina, Tijani Ben Jemaa, Tom Dale (20)
Observers/Guests: Irene Borissova
Staff: Bernie Turcotte, Brenda Brewer, Karen Mulberry, Yvette, Guigneaux
Apologies:
**Please let Brenda or Yvette know if your name has been left off the list (attendees or apologies).**
Transcript
Recording
The Adobe Connect recording is available here: https://participate.icann.org/p3mssaujpnq/
The audio recording is available here: http://audio.icann.org/accountability/ccwg-accountability-jurisdiction-10oct16-en.mp3
Agenda
- Welcome
- Discussion of Approach: Our work so far, and a way forward (see email)
- Changing ICANN's headquarters or incorporation jurisdiction
- Changing ICANN's headquarters or incorporation jurisdiction
- Will not be investigated at this time
- Not off the table -- If an issue is identified and we can’t find a less drastic solution, will revisit this point, including concerns raised, in the context of the
identified issue.
- Not off the table -- If an issue is identified and we can’t find a less drastic solution, will revisit this point, including concerns raised, in the context of the
- Confirm and Assessing Gap Analysis
- Confirm and Assessing Gap Analysis
- Discussion has largely been about scope and not about confirmation and assessment
- Put to the side and revisit after work on substantive issue that is clearly “in scope”
- We will continue discussion of Multiple Layers of Jurisdiction document
- We will begin discussion of the “In Scope” Issue: The influence of ICANN’s existing jurisdictions relating to resolution of disputes (i.e., choice of law and venue) on the actual operation of policies and accountability mechanisms
- Multiple Layers of Jurisdiction https://docs.google.com/document/d/1oE9xDIAJhr4Nx7vNO_mWotSXuUtTgJMRs6U92yTgOH4/edit?usp=sharing
- The influence of ICANN’s existing jurisdictions relating to resolution of disputes (i.e., choice of law and venue) on the actual operation of policies and accountability mechanisms
- choice of law and venue) on the actual operation of policies and accountability mechanisms
Notes
Notes (including relevant parts of chat):
16 participants at start of call.
1. Welcome
Greg Shatan: No one on phone only. No changes to SOIs.
2. Discussion of Approach: Our work so far, and a way forward (see email)
a. Changing ICANN's headquarters or incorporation jurisdiction
i. Will not be investigated at this time
ii. Not off the table -- If an issue is identified and we can’t find a less drastic solution, will revisit this point, including concerns raised, in the context of the identified issue.
Greg Shatan: Is this proposal ok? No comments. Assume no objections.
b. Confirm and Assessing Gap Analysis
i. Discussion has largely been about scope and not about confirmation and assessment
ii. Put to the side and revisit after work on substantive issue that is clearly “in scope”
Greg Shatan: Any issues with the proposal? No comments. Assume no objections.
c. We will continue discussion of Multiple Layers of Jurisdiction document
Greg Shatan: No comments. Assume to objections.
d. We will begin discussion of the “In Scope” Issue: The influence of ICANN’s existing jurisdictions relating to resolution of disputes (i.e., choice of law and venue) on the actual operation of policies and accountability mechanisms
Greg Shatan: No comments. Assume to objections. Overall comments?
David McAuley: Support the proposal overall and would propose doing D initially vs C.
Greg Shatan: I think we need to spend a little time on C so we all have a common understanding of what we mean by jurisdiction. It is not meant to be an exhaustive review of the layers.
David McAuley (RySG): Thanks Greg, sounds fine.
Milton Mueller: Support GS approach. Uncertain why put aside the gap analysis?
Greg Shatan: there has been a diversity views on this and no consensus by this group.
Kavouss Arasteh 2: Greg, I think you have proposed to put aside GAP analysis, why? I have no problem if we start with layers and then come back to GAP Alaysis - can you assure that we will not take jurisdiction off the table
3. Multiple Layers of Jurisdiction
(Multiple Layers of Jurisdiction document)
Greg Shatan: Jurisdiction of Incorporation definition. No comments.
Kavouss Arasteh 2: This document is written in a confusing manner perhaps to make it difficult to understand. It has been copied from the text of the WS1 which was also vague.
Greg Shatan: Jurisdiction of Headquarters proposed definition. No issues
Kavouss Arasteh 2: Grec, I have no problem for these cases , pls advise if there is an issue outside these places what would happened? the description of the multilayer as copied from the text of WS1 is vague ,unclear and requires streamlining - again and again, we should not just discuss the periphery of the case but the center of the issue
Greg Shatan: Places of physical presence.
David McAuley: Is ICANN incorporated in some of these other places of presence? Maybe ICANN legal can help.
Greg Shatan: Ok to ask ICANN Legal - but to my understanding a company can only be incorporated once and in one place. You may have to register with local authorities for doing business.
Kavouss Arasteh 2: 1. review the description as contained in WS1 and make it clear , understandable
Samantha Eisner: ICANN is not incorporated anywhere else. It is a registered foreign office or branch office equivalent in all other places.
Greg Shatan: Jurisdiction for Interpretation of contracts (choice of law or governing law).
Tijani Ben Jemaa: The real issue is the choice of the judge. As to Jorge's comment - who has the choice of applicable law?
Jorge Cancio (GAC Switzerland): the parties may in agreements determine the applicable law, as well as about the venue, provider etc of the dispute resolution.
Greg Shatan: Doing that at the time of a dispute is always an issue. Always best to do ahead of time.
Milton Mueller: you are saying that the Registry Agreement does not provide parties with choice of law?
Jeff Neuman: correct @milton
Milton Mueller: Same for RAA
Jeff Neuman: same with Registrar Accreditation Agreement
Jorge Cancio (GAC Switzerland): in the base registry agreement there are some provisions for specific cases where commitments conflict with applicable national law...
Milton Mueller: Yes, Jorge that's what I thought
Jeff Neuman: BUT, the venue is always in LA
Jorge Cancio (GAC Switzerland): there are some specific rules for governmental entities and IGOs I think
Jeff Neuman: For the Registrars it uses the American Arbitration Assocation
Greg Shatan: Jurisdiction of Litigation
David McAuley: WRT venue - we should not confuse with IRP which is essentially meant to be venue less.
Jorge Cancio (GAC Switzerland): My comments in the Google Doc are pointers of issues that could be improved (i.e. they are on the normative level) - but it's true that first we need a good factual description of the current situation
David McAuley (RySG): ok - will put the thought in google doc.
Milton Mueller: NTIA requirements are no longer required and this should be removed.
Greg Shatan: Think this is still valid.
Samantha Eisner: Requirements derived from NTIA's criteria are included in the WS2 Bylaw in Article 27
Avri Doria: I believe the NTIA requirements remain in effect for WS2.
Milton Mueller: How can they?
Avri Doria: as Sam says they are part of the transition bylaws. after WS2, then it is arguable.
Milton Mueller: NTIA transition requirements are just that: transition requirements.
Jeff Neuman: So lets dismiss the work "NTIA" and substitute Article 27 of the Bylaws
Pedro da Silva - [GAC Brasil]: Although I fully support the requirements set out for the transition, I agree with Milton here. Number 7 is not a proper layer.
Greg Shatan: good points will clean up the document. Encourage everyone to put their comments in the Google doc.
David McAuley (RySG): Thanks Greg - let us know when doc is cleaned up and we can go back in
Tijani Ben Jemaa: Agree with MM - no need for this (7) layer here.
Milton Mueller: Support deleting it and Article is not really relevant.
David McAuley (RySG): I think Jeff's idea makes sense - call it art. 27
Greg Shatan: Invite everyone to look at Article 27 C. This applies to all sub-groups.
Tatiana Tropina: I agree with David and Jeff makes sense for now.
Milton Mueller: we can't change anything major "tomorrow" (vs NTIA requirements)
Tatiana Tropina: I think they are not "requirements" anymore but rather principles we want to follow?
Greg Shatan: encourage everyone to think about the next piece of work - item 4 of the agenda. Adjourned.
Documents Presented
Chat Transcript
Brenda Brewer: Good day all and welcome to Jurisdiction Subgroup Meeting #7 on 10 October 2016 @ 19:00 UTC!
BERNARD TURCOTTE: Hi all
BERNARD TURCOTTE: and Happy Canadian Thanksgiving
Jeff Neuman: hello
Jeff Neuman: could you hear me when I was just talking?
David McAuley (RySG): Hi Brenda, I am 4154 again
again
Brenda Brewer: Thank you, David!
David McAuley (RySG): Happ Canadian Thanksgiving Bernie
David McAuley (RySG): Happy, that is
BERNARD TURCOTTE: Merci
Milton Mueller: Now I know why we have a holiday today ;-)
Tatiana Tropina: Hi all!
Jeff Neuman: i assume we have not started yet as I dont hear anything
Greg Shatan: Dialing in now.
Milton Mueller: Can you hear Greg, Jeff?
?
Jeff Neuman: yes
David McAuley (RySG): yes
Jeff Neuman: thx
Finn Petersen, GAC - DK: yes
Kavouss Arasteh 2: Hi all
Kavouss Arasteh 2: Sorry I have had internet connection
jorge cancio (GAC Switzerland): I'm also the swiss number :-)
Kavouss Arasteh 2: I had an phone problem which I have now solved
Kavouss Arasteh 2: Could I possibly get a new call back to follow the discussion?
?
Brenda Brewer: Yes Kavouss. Please stand by
Kavouss Arasteh 2: TKS
Kavouss Arasteh 2: MAY THEY TRY AGAIN PLS
Brenda Brewer: Calling now. First time, no answer Kavouss.
Brenda Brewer: Kavous, success!
Kavouss Arasteh 2: NO
Kavouss Arasteh 2: no
David McAuley (RySG): Thanks Greg, sounds fine
Kavouss Arasteh 2: Grec
Grec
David McAuley (RySG): It does Greg
Kavouss Arasteh 2: We understood your document and procedure that you have outlined
Kavouss Arasteh 2: Pls proceesd
Milton Mueller: there were gaps in the gap analysis?
Milton Mueller: :-)
Kavouss Arasteh 2: Grec, I think you have proposed to put aside GAP analysis ,why
Kavouss Arasteh 2: Dear Secretariat,pls include my chat comment as I do not have connection
Kavouss Arasteh 2: I have no problem if we start with layers and then come back to GAP Alaysis
Kavouss Arasteh 2: Grec ,can you assure that we will not take jurisdiction off the table
table
David McAuley (RySG): The google docs version with comments is what we need I think
BERNARD TURCOTTE: will have it in a minute
David McAuley (RySG): Thanks Yvette and Bernie
Philip Corwin: Apologies for late arrival but i was on another call that just ended
BERNARD TURCOTTE: Kavous I am taking in you chat comments
Kavouss Arasteh 2: This document is written in a confusing manner perhaps to make it difficult to understand. It has been copied from the text of the WS1 which was also vague
Kavouss Arasteh 2: Grec, I have no problem for these cases ,pls advise if there is an issue outside these places what would happened
Kavouss Arasteh 2: Grec, the description of the multilayer as copied from the text of WS1 is vague ,unclear and requires streamlining
Kavouss Arasteh 2: Grec, again and again, we should not just discuss the periphery of the case but the center of the issue
issue
David McAuley (RySG): could I be heard
Samantha Eisner: I heard you
David McAuley (RySG): maybe lost connection
Cheryl Langdon-Orr: audio
Pedro da Silva - [GAC Brasil]: Yes David
Brenda Brewer: Yes David
Samantha Eisner: I can't hear anyone else now?
Yvette Guigneaux: Greg? Everything ok?
David McAuley (RySG): thanks Pedro
Pedro
Yvette Guigneaux: Ok, we're good now
Kavouss Arasteh 2: The cases that relate to California and other places are clear as described by David
Kavouss Arasteh 2: Grec, pls kindly note the followings:
Tatiana Tropina: no, nothing on the audio bridge
David McAuley (RySG): I am using both and cannot hear Sam
Milton Mueller: None of us hear Samantha
Samantha Eisner: I'm on the audio bridge as well
Kavouss Arasteh 2: 1. review the description as contained in WS1 and make it clear , understandable
Samantha Eisner: I'll type
type
Samantha Eisner: ICANN is not incorporated anywhere else
David McAuley (RySG): thanks Sam
Samantha Eisner: It is a registered foreign office or branch office equivalent in all other places
David McAuley (RySG): ok, makes sense
Kavouss Arasteh 2: Grec, pls give an example of jurisdiction case ,say in Singapore?
Kavouss Arasteh 2: Brenda, I still discontinued since 20 mints ago
Kavouss Arasteh 2: disconnected
Brenda Brewer: I have dialed out to you again Kavouss.
Jeff Neuman: VENUE is always LA
LA
Jeff Neuman: But choice of law is blank for both registry and registrar agreements
Cheryl Langdon-Orr: I will be boarding shortly... hopefully will be able to stay to the end of today's call...apols if I need to leave early though...
Pedro da Silva - [GAC Brasil]: Yes, Greg
Cheryl Langdon-Orr: yes hear yo
Yvette Guigneaux: We can hear you Greg
jorge cancio (GAC Switzerland): the parties may in agreements determine the applicable law, as well as about the venue, provider etc of the dispute resolution
BERNARD TURCOTTE: 15 minutes left
Milton Mueller: you are saying that the Registry Agreement does not provide parties with hoice of law?
Jeff Neuman: correct @milton
correct @milton
Milton Mueller: Same for RAA
Jeff Neuman: same with Registrar Accreditation Agreement
jorge cancio (GAC Switzerland): in the base registry agreement there are some provisions for specific cases where commitments conflict with applicable national law...
Milton Mueller: Yes, Jorge that's what I thought
Jeff Neuman: BUT, the venue is always in LA
jorge cancio (GAC Switzerland): there are some specific rules for governmental entities and IGOs I think
Jeff Neuman: For the Registrars is uses the American Arbitration Assocation
Association
jorge cancio (GAC Switzerland): My comments in the Google Doc are pointers of issues that could be improved (i.e. they are on the normative level) - but it's true that first we need a good factual ddescription description of the current situation
situation
David McAuley (RySG): ok - will put the thought in google doc
Samantha Eisner: Requirements derived from NTIA's criteria are included in teh WS2 Bylaw in Article 27
avri doria: i beleive the NTIA requirements remian in effect for WS2.
Milton Mueller: How can they?
avri doria: as Sam says they are part of the ranstion bylaws. after WS2, then it is arguable.
Milton Mueller: NTIA transition requirements are just that: transition requirements.
Erich Schweighofer: Good descrption of the complex jurisdiction of ICANN - a stress test of possible influence of the various countries of jurisdiction may be helpful.
Jeff Neuman: So lets dimiss the work "NTIA" adn substitute Article 27 of the Bylaws
Pedro da Silva - [GAC Brasil]: Although I fully support the requirements set out for the transition, I agree with Milton here.
Pedro here.
da Silva - [GAC Brasil]: Number 7 is not a proper layer.
David McAuley (RySG): Thanks Greg - let us know when doc is cleaned up and we can go back in
David McAuley (RySG): ok thanks
David McAuley (RySG): I think Jeff's idea makes sesne - call it art. 27
Tatiana Tropina: I agree with David and Jeff
Tatiana Tropina: makes sense for now.
Milton Mueller: we can't change anything major "tomorrow"
Tatiana Tropina: I think they are not "requirements" anymore but rather principles we want to follow?
BERNARD TURCOTTE: top of the hour now
Milton Mueller: Art 27 are bylaws
Milton Mueller: not principles
Tatiana Tropina: that was rather reply to Greg about requirements, not comment on the art 27
Tatiana Tropina: sorry if anyone got confused
Milton Mueller: bye all!
Tatiana Tropina: Thanks you Greg, thanks all!
BERNARD TURCOTTE: bye all
David McAuley (RySG): thanks Greg and staff members, good bye all.
jorge cancio (GAC Switzerland): thanks and bye!
Erich Schweighofer: Bye.
avri doria: bye