Jurisdiction Meeting #19 (30 January @ 19:00 UTC)
- Brenda Brewer
Sub-group Members: Andreea Brambilla, Avri Doria, Barbara Wanner, Cheryl Langdon-Orr, Christopher Wilkinson, David McAuley, Greg Shatan, Griffin Barnett, Herb Waye, Jeff Neuman, John Laprise, Mary Uduma, Mathieu Weill, Milton Mueller, Phil Corwin, Phil Marano, Robin Gross, Steve DelBianco, Tom Dale, Wale Bakare (20)
Observers/Guests: Irene Borissova, Wafa Dahmani (2)
Staff: Adiel Akplogan, Bernie Turcotte, Berry Cobb, Brenda Brewer, Karen Mulberry (4)
Apologies: Finn Petersen, Matthew Shears, Paul Rosenzweig, Erich Schweighofer
** If your name is missing from attendance or apology, please send note to acct-staff@icann.org **
Transcript
Recording
Agenda
- Welcome
- Questionnaire
- Time Period for Responses to the Questionnaire
- Hypothetical #1 (taken from “Influence of ICANN’s Existing Jurisdiction” document, Section C )
- Small Group Review of ICANN’s Past and Current Litigation
- Litigations: https://www.icann.org/resources/pages/governance/litigation-en
- Draft Summary Form: https://docs.google.com/document/d/1efkQOvSwW-2m1T_u6anFMVUeiHoO6P4PR3-0mWlU_Cs/edit?usp=sharing
- Sign-Up Sheet: https://docs.google.com/document/d/1oo9oDJuuxFz1UUNaBfHeor7HPhJ5XcRHFTq3hjRltOM/edit?usp=sharing
- “Influence of ICANN’s Existing Jurisdiction” document, Section C
- AOB
- Adjourn
Notes (including relevant portions of chat):
1. Welcome
Greg Shatan: (15 participants at start of call). No changes to SOIs.
2. Questionnaire
a. Time Period for Responses to the Questionnaire
Greg Shatan: Great deal of discussion. Some requesting 30 days after the ICANN58 meeting. Would suggest closing 7 April with no extensions possible - as a middle ground. Any comments?
Bernard Turcotte: Reminder that KA has requested 30 days after ICANN 58.
Greg Shatan: yes 7 April would be a compromise.
avri doria: sure, give all the time people need.
David McAuley (RySG): I ilke the idea of not extending and looking at replies as they come in
John Laprise: the longer the better to allow participation and knowledge of the issue.
Greg Shatan: Good points, we have a lot of work to do in the meantime so no reason not to extend. Also, we can ask people to respond early and the group can consider these as they come in. As such would suggest closing 17 April which is 30 days after ICANN 58 closes.
Mathieu Weill: A quick work plan note: Mid Apr is 2 months away from Johannesburg. Might be difficult to be in a position to have a 1st reading by then
David McAuley (RySG): Good point Mathieu
Mathieu Weill: Not that it is a deadline, but it's important to manage expectations on timeline
Greg Shatan:(decision) No objections. So, the questionnaire will be taking responses until 17 April which is 30 days after ICANN58 and there will be no extensions.
avri doria: if we work with the replies coming in, then finishing up after the 17th might be quick. and we can make a plea for early repsonses becasue of the schedule.
3. Hypothetical #1 (taken from “Influence of ICANN’s Existing Jurisdiction” document, Section C )
Greg Shatan: This is what I think is the heart of our work. (going through the document).
David McAuley: A difficulties I am having is understanding WHAT WENT WRONG. Otherwise
avri doria: does the nationality of the plaintiff feed in any complexity?
Philip Corwin: On point 4, if the ruling is against ICANN and ICANN belives the ruling to be erroneous, it has a right of appeal.
Mathieu Weill: Who is judging on correctly or wrongly decided?
avri doria: it is a possible good thing to mark all the points in the hypotheticals where some action by ICANN and its Board & EC
Philip Corwin: IMH< the key consideration is that ICANN is HQ'd in a jurisdiction with a clear commitment to the rule of law, and that any party with standing can initiate litigation regardless of their home jurisdiction.
avri doria: Philip sometimes easier said than done
Mathieu Weill: We should check how many litigations in court were initiated by parties outside the US (to check how Phil's requirement translates into practice)
avri doria: As long as someone from the 7 countries does not need to appear in court, it might be ok.
Philip Corwin: @Avri--challenges of bringing litigation, espevcially costs, are hardly unique to US
Wale Bakare: Would the decision different in either case?
Avri Doria: i don't know, but i understand some view a physical presence as sometimes perfereable in terrms of making an appeal.
Wale Bakare: In physical's emotions can get involved and perhaps could impact on the decision
Avri Doria: often a good thing
Philip Corwin: regardless of the governing law, the court's ruling might be pro-ICANN from one judge and anti-ICANN from another. There is no way to guarantee 100% consistency in any judicial forum. That's why there are rights of appeal.
Avri Doria: they are part of the equation
Mathieu Weill: Having ICANN accountable to other governing laws might actually bring additional accountability, for instance related to privacy
Mathieu Weill: This is a great list of factors to compare jurisdiction if need be
David McAuley: It might help if we segment questions in 2 ways - Corporate Governance questions and Everything else.
Greg Shatan: This could be a template for looking at things.
4. Small Group Review of ICANN’s Past and Current Litigation
a. Litigations: https://www.icann.org/resources/pages/governance/litigation-en
b. Draft Summary Form: https://docs.google.com/document/d/1efkQOvSwW-2m1T_u6anFMVUeiHoO6P4PR3-0mWlU_Cs/edit?usp=sharing
Greg Shatan: Kudos to MW for being the first to complete his.
David McAuley (RySG): Thanks for that Mathieu - I need to get active on my reviews
Philip Corwin: Facts are oftyen in dispute in litigation, with the court being the ultimate finder of facts. It finds the facts, and then it applies the relevant law.
Mathieu Weill: GS will wait for your update to the forms.
Greg Shatan: Will do.
c. Sign-Up Sheet: https://docs.google.com/document/d/1oo9oDJuuxFz1UUNaBfHeor7HPhJ5XcRHFTq3hjRltOM/edit?usp=sharing
5 “Influence of ICANN’s Existing Jurisdiction” document, Section C a.https://docs.google.com/document/d/1_uxN8A5J3iaofnGlr5gYoFVKudgg_DuwDgIuyICPzbk/edit?usp=sharing
Greg Shatan: We need to look to other hypotheticals that go to this question. KA has suggested a list of questions earlier in the year.
6. AOB
Greg Shatan: DM has drafted question for ICANN Legal. Will consider this week.
7. Adjourn
Decisions:
- Time period for responding to questionnaire will be until 17 April with no extensions.
Action Items:
- Greg Shatan to redraft Summary Form per comments on the list
- Volunteers to analyze cases using forms should pick their cases (sign up sheet) and complete their analysis per the Form for 14 February.
- MW has completed his 2 cases.
- Re draft question from DM on possibility of ICANN being sued in other jurisdictions – sub-group should review and post comment if any this week.
Documents Presented
Chat Transcript
Brenda Brewer: (1/30/2017 12:33) Good day all and welcome to Jurisdiction Subgroup Meetging #19 on 30 January 2017 @ 19:00 UTC!
Barbara Wanner: (12:56) Brenda, I am 2026173155. Thanks
Bernard Turcotte Staff Support: (12:58) good day all
Greg Shatan: (12:58) We also have "apologies" from Erich Schweighofer.
David McAuley (RySG): (13:00) Hi Brenda, I am 4154
Mathieu Weill: (13:01) Hello everyone
Brenda Brewer: (13:01) Thank you Barbara and David!
CW: (13:02) Hello. CW
Herb Waye Ombuds: (13:03) Greetings all
Wale Bakare: (13:03) Hello everyone
Jeff Neuman: (13:03) its the 31st in Asia :)
Philip Corwin: (13:09) hello all. Apologies for late arrival. And I am the 5316 number
avri doria: (13:09) not don't care, but seems ok.
David McAuley (RySG): (13:09) Socratic method - very interesting model
Philip Corwin: (13:09) Ok with Socratic, so long as it omits the hemlock ;-)
avri doria: (13:10) sure, give all the time people need.
David McAuley (RySG): (13:11) I ilke the idea of not extending and looking at replies as they come in
John Laprise: (13:12) the longer the better to allow participation and knowledge of the issue.
Tom Dale (ACIG GAC Secretariat): (13:13) Where will the questionnaire be posted?
Tom Dale (ACIG GAC Secretariat): (13:14) OK thanks.
Mathieu Weill: (13:14) A quick work plan note : Mid Apr is 2 months away from Johannesburg. Might be difficult to be in a possition to have a 1st reading by then
David McAuley (RySG): (13:15) Good point Mathieu
Mathieu Weill: (13:15) Not that it is a deadline, but it's important to manage expectations on timeline
avri doria: (13:18) if we work with the replies coming it, then finishing up after the 17th might be quick. and we can make a plea for early repsonses becasue of the driving schedule.
avri doria: (13:22) bernie's hand seems to have been up fr a while.
Bernard Turcotte Staff Support: (13:23) now down - thanks Avri
David McAuley (RySG): (13:24) Or perhaps the discussion doesn't need a hypotehical, maybe it is more general
avri doria: (13:25) does the nationality of the plaintiff feed in any complexity?
David McAuley (RySG): (13:26) I would think the plaintiff's nationality is not that important, rather the court is
Milton: (13:26) greetings all, sorry I had to be late
avri doria: (13:26) it was a genuine question, not a leading one (or socratic) one
David McAuley (RySG): (13:26) Socratic welcome
Milton: (13:27) as long as we don't make Avri drink hemlock
David McAuley (RySG): (13:29) That is good -
David McAuley (RySG): (13:30) Agreed, good outcome - ICANN action tested in a separate forum and found to be ok
Bernard Turcotte Staff Support: (13:32) Time check - 28 minutes left in call
Philip Corwin: (13:34) On point 4, if the ruling is against ICANN and ICANN belives the ruling to be erroneous, it has a right of appeal.
Mathieu Weill: (13:34) Who is judging on correctly or wrongly decided ?
avri doria: (13:34) it is a possible good thing to mark all the points in the hypotheticals where some action by ICANN and its Board & EC
avri doria: (13:34) is precipitated
Philip Corwin: (13:36) IMH< the key consideration is that ICANN is HQ'd in a jurisdiction with a clear commitment to the rule of law, and that any party with standing can initiate litigation regardless of their home jurisdiction.
avri doria: (13:36) Philip sometimes easier said than done
Mathieu Weill: (13:37) We should check how many litigations in court were initiated by parties outside the US
Mathieu Weill: (13:38) (to check how Phil's requirement translates into practice)
avri doria: (13:38) As long as someone from the 7 countries does not need to appear in court, it might be ok.
Philip Corwin: (13:38) @Avri--challenges of bringing litigation, espevcially costs, are hardly unique to US
Philip Corwin: (13:39) @Avri--depositions are generaly allowed if a witness is unavailable
avri doria: (13:39) second class justice?
Wale Bakare: (13:40) Would the decision different in either case?
avri doria: (13:41) i don't know, but i understand some view a physical presence as sometimes perfereable in terrms of making an appeal.
avri doria: (13:42) i admit i am just exploring hypotheticals about the hypotheticals
Wale Bakare: (13:43) In physical's emotions can get involved and perhaps could impact on the decision
avri doria: (13:43) often a good thing
Philip Corwin: (13:43) regardless of the governing law, the court's ruling might be pro-ICANN from one judge and anti-ICANN from another. There is no way to guarantee 100% consistency in any juducial forum. That's why there are rights of appeal.
avri doria: (13:43) they are part of the equation
Mathieu Weill: (13:44) That's right Greg
Mathieu Weill: (13:45) Having ICANN accountable to other governing laws might actually bring additional accountability, for instance related to privacy
Herb Waye Ombuds: (13:47) I'm in LA for the week and just got collared for another committment.... gotta run. regards all
Bernard Turcotte Staff Support: (13:47) time check 13 minutes left
Mathieu Weill: (13:51) This is a great list of factors to compare jurisdiction if need be
Bernard Turcotte Staff Support: (13:53) hand David
avri doria: (13:53) do foriegn nationals still have the full protection of rule of American law?
David McAuley (RySG): (13:54) was i not heard
Mathieu Weill: (13:55) Good suggestion David
Wale Bakare: (13:55) Just for confirmation as i believe the deadline for the public comments is 17th April?
Bernard Turcotte Staff Support: (13:55) Time check 5 minutes leftg
Mathieu Weill 2: (13:56) BTW Greg, this notion of alternative facts could be disputed ;-)
Mathieu Weill 2: (13:56) Just wanted to mention that it had been noted
avri doria: (13:57) fact is such an overloaded variable.
David McAuley (RySG): (13:57) Thanks for that Mathieu - I need to get active on my reviews
Philip Corwin: (13:57) Facts are oftyen in dispute in litigation, with the court being the ultimate finder of facts. It finds the facts, and then it applies the relevant law.
avri doria: (13:59) yeah Sundays are no longer avialalbe for ICANN volunteering. too much organizing and protesting to be done.
Wale Bakare: (14:00) "Just for confirmation as i believe the deadline for the public comments is 17th April?
Bernard Turcotte Staff Support: (14:00) correct
avri doria: (14:00) yeah but sooner is better
Wale Bakare: (14:00) Thanks
avri doria: (14:01) me too
Philip Corwin: (14:01) I will be at NCPH as well
Mathieu Weill 2: (14:01) Thanks Greg !
Bernard Turcotte Staff Support: (14:02) Greg need the cover note for the questionnaire
David McAuley (RySG): (14:02) Thanks Greg, Bernie, and all
Wale Bakare: (14:02) Thanks Greg, bye all
Bernard Turcotte Staff Support: (14:02) bye all
Mathieu Weill 2: (14:02) TTY all soon !
avri doria: (14:02) bye