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Sub-group Members: Andreea Brambilla, Avri = Doria, Barbara Wanner, Cheryl Langdon-Orr, Christopher Wilkinson, David McA= uley, Greg Shatan, Griffin Barnett, Herb Waye, Jeff Neuman, John Laprise, M= ary Uduma, Mathieu Weill, Milton Mueller, Phil Corwin, Phil Marano, Robin G= ross, Steve DelBianco, Tom Dale, Wale Bakare (20)
Observers/Guests: Irene Borissova, Wafa Dahmani &= nbsp; (2)
Staff: Adiel Akplogan, Bernie Turcotte, Berry Cob= b, Brenda Brewer, Karen Mulberry (4)
Apologies: Finn Petersen, Matthew Shears, Paul Ro= senzweig, Erich Schweighofer
** If your name is missing from attendance or apology, please = send note to acct-staff@ic= ann.org **
Transcript
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 g= round. Any comments?
Bernard Turcotte: Reminder that KA has re= quested 30 days after ICANN 58.
Greg Shatan: yes 7 April would be a compr= omise.
avri doria: sure, give all the time peopl= e 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 al= low participation and knowledge of the issue.
Greg Shatan: Good points, we have a lot o= f work to do in the meantime so no reason not to extend. Also, we can ask p= eople 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: Mi= d Apr is 2 months away from Johannesburg. Might be difficult to be in a pos= ition to have a 1st reading by then
David McAuley (RySG): Good point Mathieu<= /p>
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 c= oming 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 =E2=80=9CInfluence of ICANN=E2=80=99s Existing Jurisdiction=E2= =80=9D 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 p= laintiff 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 rig= ht of appeal.
Mathieu Weill: Who is judging on correctl= y or wrongly decided?
avri doria: it is a possible good thing t= o mark all the points in the hypotheticals where some action by ICANN and i= ts Board & EC
Philip Corwin: IMH< the key considerat= ion 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 regar= dless of their home jurisdiction.
avri doria: Philip sometimes easier said = than done
Mathieu Weill: We should check how many l= itigations 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 bring= ing 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 understan= d some view a physical presence as sometimes perfereable in terrms of makin= g an appeal.
Wale Bakare: In physical's emotions can g= et involved and perhaps could impact on the decision
Avri Doria: often a good thing
Philip Corwin: regardless of the governin= g 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 t= o other governing laws might actually bring additional accountability, for = instance related to privacy
Mathieu Weill: This is a great list of fa= ctors to compare jurisdiction if need be
David McAuley: It might help if we segmen= t 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 IC= ANN=E2=80=99s Past and Current Litigation =
&nb= sp; a. Litigations: https://www.icann.org/resources/pages/governance/litigation-en
&nb= sp; b. Draft Summary Form: https://docs.google.co= m/document/d/1efkQOvSwW-2m1T_u6anFMVUeiHoO6P4PR3-0mWlU_Cs/edit?usp=3Dsharin= g
= 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 ultima= te finder of facts. It finds the facts, and then it applies the relevant la= w.
Mathieu Weill:= GS will wait for your update to the forms.
Greg Shatan: W= ill do.
&nb= sp; c. Sign-Up Sheet: https://docs.google.com/doc= ument/d/1oo9oDJuuxFz1UUNaBfHeor7HPhJ5XcRHFTq3hjRltOM/edit?usp=3Dsharing=
5 =E2=80=9CInfluence = of ICANN=E2=80=99s Existing Jurisdiction=E2=80=9D document, Section C = a.https://docs.google.co= m/document/d/1_uxN8A5J3iaofnGlr5gYoFVKudgg_DuwDgIuyICPzbk/edit?usp=3Dsharin= g
Greg S= hatan: 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:
Action Items:
Documents Presented
Brenda Brewer: (1/30/2017 12:33) Good da= y all and welcome to Jurisdiction Subgroup Meetging #19 on 30 January 2017 = @ 19:00 UTC!
Barbara Wanner: (12:56) Bren= da, I am 2026173155. Thanks
Bernard Turcotte Staff Suppo= rt: (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) Gr= eetings all
Wale Bakare: (13:03) Hello e= veryone
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 wi= th Socratic, so long as it omits the hemlock ;-)
avri doria: (13:10) sure, gi= ve 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= span>
John Laprise: (13:12) the lo= nger the better to allow participation and knowledge of the issue.= p>
Tom Dale (ACIG GAC Secretari= at): (13:13) Where will the questionnaire be posted?
Tom Dale (ACIG GAC Secretari= at): (13:14) OK thanks.
Mathieu Weill: (13:14) A qui= ck work plan note : Mid Apr is 2 months away from Johannesburg. Might be di= fficult 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 t= hat it is a deadline, but it's important to manage expectations on timeline=
avri doria: (13:18) if we wo= rk with the replies coming it, then finishing up after the 17th might be qu= ick. and we can make a plea for early repsonses becasue of the d= riving schedule.
avri doria: (13:22) bernie's= hand seems to have been up fr a while.
Bernard Turcotte Staff Suppo= rt: (13:23) now down - thanks Avri
David McAuley (RySG): (13:24= ) Or perhaps the discussion doesn't need a hypotehical, maybe it is more ge= neral
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 t= he court is
Milton: (13:26) greetings al= l, 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 w= e 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 Suppo= rt: (13:32) Time check - 28 minutes left in call
Philip Corwin: (13:34) On po= int 4, if the ruling is against ICANN and ICANN belives the ruling to be er= roneous, it has a right of appeal.
Mathieu Weill: (13:34) Who i= s 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 preci= pitated
Philip Corwin: (13:36) IMH&l= t; the key consideration is that ICANN is HQ'd in a jurisdiction with a cle= ar commitment to the rule of law, and that any party with standing can init= iate litigation regardless of their home jurisdiction.
avri doria: (13:36) Philip s= ometimes easier said than done
Mathieu Weill: (13:37) We sh= ould check how many litigations in court were initiated by parties outside = the US
Mathieu Weill: (13:38) (to c= heck 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 t= o US
Philip Corwin: (13:39) @Avri= --depositions are generaly allowed if a witness is unavailable
avri doria: (13:39) second c= lass justice?
Wale Bakare: (13:40) Would t= he decision different in either case?
avri doria: (13:41) i don't = know, but i understand some view a physical presence as sometimes perfereab= le 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 phys= ical's emotions can get involved and perhaps could impact on the decision= span>
avri doria: (13:43) often a = good thing
Philip Corwin: (13:43) regar= dless 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% consis= tency in any juducial forum. That's why there are rights of appeal.<= /p>
avri doria: (13:43) they are= part of the equation
Mathieu Weill: (13:44) That'= s right Greg
Mathieu Weill: (13:45) Havin= g 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.... gott= a run. regards all
Bernard Turcotte Staff Suppo= rt: (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 Suppo= rt: (13:53) hand David
avri doria: (13:53) do forie= gn 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 fo= r confirmation as i believe the deadline for the public comments is 17th Ap= ril?
Bernard Turcotte Staff Suppo= rt: (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) Jus= t 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 fin= der of facts. It finds the facts, and then it applies the releva= nt law.
avri doria: (13:59) yeah Sun= days are no longer avialalbe for ICANN volunteering. too much or= ganizing and protesting to be done.
Wale Bakare: (14:00) "Just f= or confirmation as i believe the deadline for the public comments is 17th A= pril?
Bernard Turcotte Staff Suppo= rt: (14:00) correct
avri doria: (14:00) yeah but= sooner is better
Wale Bakare: (14:00) Thanks<= /span>
avri doria: (14:01) me too= span>
Philip Corwin: (14:01) I wil= l be at NCPH as well
Mathieu Weill 2: (14:01) Tha= nks Greg !
Bernard Turcotte Staff Suppo= rt: (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 Suppo= rt: (14:02) bye all
Mathieu Weill 2: (14:02) TTY= all soon !
avri doria: (14:02) bye