Andreea Todoran, Avri Doria, Ari (ICANN), Christopher Wilkinson, David McAuley, Elizabeth Andrews, Erich Schweighofer, Erin Dorgan, Finn Peterson, Ghislain, Greg Shatan, Griffin Barnett, Jeff Neuman, Jimson Olufuye, John Poole, Jorge Cancio, Kavouss Arasteh, Mary Uduma, Milton Mueller, Nigel Hickson, Par Brumark, Paul McGrady, Pedro da Silva, Philip Corwin, Rafael Perez Galindo, Samantha Eisner, Simon Jansson, Tijani BEN JEMAA, Veni Markovski, Vinay Kesari.
**Please let Brenda know if your name has been left off the list (attendees or apologies).**
The Adobe Connect recording is available here: Due to technical difficulties, the Adobe Connect recording is not available.
The audio recording is available here:
CCWG-Accountability, Work Stream 2
2. Approach to ICANN’s Place of Incorporation and Headquarters Location
- Should the scope of the Jurisdiction topic include examining the effects of ICANN's place of incorporation and location (for example, on the actual operation of policies and accountability mechanisms and on the settlement of disputes), or should this be out of scope?
- Should the scope of the Jurisdiction topic include the possibility of recommending that ICANN be directed to change its place of incorporation and/or headquarters location, or should this be out of scope?
3. Gap Analysis: Annex 12 includes “confirming and assessing the gap analysis.”
- We need a common understanding of what this refers to. Does the “gap analysis” refer to a determination in WS1 that there were no significant gaps in the WS1 accountability proposal resulting from ICANN's current jurisdictional framework?
- How should we confirm and assess the gap analysis?
4. Continued Detailed Reading of the Google Docs.
- First Google Doc: https://docs.google.com/document/d/1UGRQqP5Bs923nmDYekZn5ZL7-DQc_QSa0GSnFoj4Pn8/edit?usp=sharing
- Second Google Doc: https://docs.google.com/document/d/1N2eCmjbA6bxJxCEluEHJIBzP_sGPN6krEqDshA0ARVM/edit?usp=sharing
5. Other Potential Inputs to our Work.
- More Detailed Review of Lightning Talks (summarized in Staff Paper)
- Pertinent Literature (influenced by Scope)
- Experts/Legal Advi
Yvette Guigneaux: Welcome to the WS2 - Jurisdiction Subgroup Meeting #4 21 September @ 13:00 UTC
Kavouss Arasteh: Dear Yvette
Kavouss Arasteh: Pls kindly do not forget to advise that I should be called in
Yvette Guigneaux: hello there Kavouss, will do =)
Kavouss Arasteh: bONJOUR Tijani
Kavouss Arasteh:Guten tag Erich
Kavouss Arasteh:Wie Gehts?
Erich Schweighofer:Sehr gut, gerade in Dresden angekommen.
Bernard Turcotte Staff Support:hi all
Bernard Turcotte Staff Support:All reminder to mute if not speaking
Pär Brumark (GAC Niue):Hi all!
Avri Doria:there will always be second of non mute between signing on and getting the cursor up to the mute key.
David McAuley (RySG):Brenda, I am 4154
Pedro da Silva - [GAC Brasil]:Hello everyone
Brenda Brewer:Thank you David!
David McAuley (RySG):Hi Bernie
Brenda Brewer:If your phone number is listed in Attendees, please identify so we can include for attendance purposes. Thank you!
nigel hickson:good afternoon
jorge cancio (GAC Switzerland):HI ALL
David McAuley (RySG):Greg you are breaking up
Pedro da Silva - [GAC Brasil]:Cannot hear Greg
Finn Petersen, GAC - DK:noise on the linie
David McAuley (RySG):nowis ok
Brenda Brewer:Once again, please identify you name if you phone number is listed. I can update phone number to names. Thank you!
Milton Mueller:Agree with David
David McAuley (RySG):Maybe not Hyderabad but not now as i see it
Milton Mueller:David: Are you saying we do not resolve the questions yet, or we do not resolve whether they are in scope or not?
David McAuley (RySG):in scope or not - to me that also takes time and thought - I believe not in scope but understand others don't agree
Milton Mueller:OK I will comment on that
Philip Corwin:FYI, I am the 703-5316 phone
David McAuley (RySG):I will also, if time allows, clarify what I meant
Finn Petersen, GAC - DK:Agree with Kavouss -ICANN's entire new structure and the empowered community is all based on California law. Our task is not to change the place of incorporation of ICANN. But if anybody can point to potential problems, we might look into means to address such problems without changing ICANN’s place of incorporation.
Avri Doria:it is not in our scope and shall not be discussed?
Avri Doria:sounds good to me.
Avri Doria:and this is an issue where we can find a solution that can satisfies everyone?
Milton Mueller:seems to me a gap analysis presumes that place of incorporation is an open question
Milton Mueller:i.e. not out of scope..
Milton Mueller:Agree, Jeff, but that is an argument against changing jurisdiction it is not an argument that it is out of scope
Greg Shatan 2:The contours of the gap analysis are something to be discussed.
Avri Doria:we also have to understand how that intersects with the various forms of presence ICANN has in other jurisdictions.
Avri Doria:since bylaws are essentially mutable, though with the input of a lot of enrgy, that fundamental issue reamins opne forever in a general sense.
Avri Doria:Changing the articles are fundmental
Milton Mueller:right Philip, it's a question of rationality not scope
Jeff Neuman:@milton - my argument that it is out of scope is because it is my belief that WS1 never intended us to discuss that option
jorge cancio (GAC Switzerland):for the gap analysis we should look at the second draft report available here: https://community.icann.org/pages/viewpage.action?pageId=53783460. The relevant pages are 121-124.
Milton Mueller:Jeff, my understanding was that a lot of people wanted to discuss it in WS1 but it was too disruptive a change in the short term so we told them to push it into WS2
Erich Schweighofer:The place of jurisdiction is flexible but it is unwise to change unless the present favourable situation exists. Other options have to be considered, maybe trying with certain activities.
Erich Schweighofer:Sorry - not unless - better: s long as
Jeff Neuman:@milton - I think that is why Greg wanted to bring it to the CCWG yesterday to clarify....but we ran out of time
Jeff Neuman:This is meeting #4 and I believe that we have been talking about the same thing over and over again. Some have said that there are arguments to move ICANN, but no one has presented those...
Erich Schweighofer:We can use a German concept - deciding on principles of a "good" ICANN jurisdiction and leave it for later .
Milton Mueller:right Jeff, we need to do the gap analysis (maybe there are no gaps)
Erich Schweighofer:It is called Solange jurisdiction here.
Milton Mueller:we should "examine the effects" of existing place of incorporation
Jeff Neuman:I agree on the "effects", but the way you do that is by referring to specific situations as opposed to in the abstract
Milton Mueller:but this must be done objectively, not with a presumption that we will retain the status quo
Erich Schweighofer:Right - and hopefully agree that everything is fine at the moment.
Milton Mueller:even if everything is not perfect, we must also take into account the costs, disruptions, burdens and risks of moving
Greg Shatan 2:
Milton Mueller:and of course the alternatives must be enumerated and evaluated
Erich Schweighofer:I can provide some input - based on my experience as international lawyer in the Ministry of Foreign Affairs (and get further input)
Pedro da Silva - [GAC Brasil]:Exactly, Milton. Let's not make recommendations upfront and evaluate all available alternatives objectively, taking, i.a., costs and burdens into account.
Philip Corwin:@CW/Christopher--thanks for noting my "flexibility". I have no interest in driving this group to engage on a divisive matter. To the contrary, if it is clear that no consensus can be reached we should move on to other more fruitful jurisdiuctional questions where we are likely to reach consensus.
Greg Shatan 2:I prefer Beyonce jurisdiction to Solange jurisdiction.
David McAuley (RySG):We need not assess all alternatives but should "identify potential alternatives and benchmark their ability to do the job - but as I believe and said, this is as a future backup
CW:@Phil: Noted thankyou. CW
Philip Corwin:@Greg--so long as we do not discuss Kayne jurisdiction ;-)
Erich Schweighofer:Greg - I will clarify later.
Philip Corwin:Paul correctly noted that Council's current discussion of the proposed legal budget for WS2 has gotten very entangled with whether this subgroup is going to wade deeply into the ICANN organizational jurisdiction issue
Vinay Kesari 2:Tijani, I think it's important to have this discussion now, as opposed to later, because it relates to a scoping issue broader than the 'layers' themselves.
Kavouss Arasteh:Grecm what happened to 2.a
Kavouss Arasteh:Grec, what about discussing a
David McAuley (RySG):The one question we might seek clarity on from full CCWG is to what extent do they wish us to proceed on para 30 "Identifying potential alterantives and benchmarking their ability to match all CCWG-Accountability requirements using the current framework" - that discussion/decision will tell us about costs going forward
Erich Schweighofer:Sorry, I have to leave for a meeting. Bye.
jorge cancio (GAC Switzerland):Dear all - in order to find and understand where the idea of "gap analysis" come from we should look at the second draft report available here: https://community.icann.org/pages/viewpage.action?pageId=53783460. The relevant pages are 121-124.
David McAuley (RySG):that language I quoted is in the context of focusing on settlement of dispute jurisdiction issues
Kavouss Arasteh:SOMEBODY IS TYPING
Kavouss Arasteh:PLS PLS STOP TYPING . I CAN NOT HEAR V
Greg Shatan 2:Thata may be wind.
David McAuley (RySG):i cannot hear typing - seems odd
Milton Mueller:i think it is wind
Kavouss Arasteh:WHAT WIND
Greg Shatan 2:I think Paul is in a car or on a bkie.
Milton Mueller:see, when Paul stoppe dtalking the "typing" ended
Kavouss Arasteh:I DO NOT GET WHAT HE IS TAKING DUE TO THE WIND
Milton Mueller:Next time I shall command the wind to stop
Milton Mueller:Kavouss: see written notes taken by staff
Avri Doria:is there an assumption that legal action can only be taken in calaifornia, and not all jurisdiction where ICANN has presence?
David McAuley (RySG):I don't think so Avri
Avri Doria:ok, it was sounding that way from some of the comments.
Greg Shatan 2:Avri, good point. I don't think that's the case.
Avri Doria:or that contracts with those not in the US could not be made under the law of other jurisdictions?
jorge cancio (GAC Switzerland):As we see in the second draft report and the prior history in the CCWG we started an "initial gap analysis", but we did not complete it but pushed it to ws2.
Kavouss Arasteh:For better understand GAP ANALYSIS pls read the information cross referenced by Jorge
jorge cancio (GAC Switzerland):thanks Kavouss - feel a bit like talking and writing to a wall
David McAuley (RySG):I think ICANN is fre to choose other jurisdictions for contract law language but that is all down to negotiation i assume
Kavouss Arasteh:Pedro! 1
Kavouss Arasteh:yes PERDO ,I agree with you on that
Avri Doria:i think we need to understand how that all plays together.
Avri Doria:i think that this understanding falls in the gap.
David McAuley (RySG):Tijani broke up in that last statement
Kavouss Arasteh:Grec, we need to address a0 as well as Gap Analysis
Philip Corwin:@David--Agree that ICANN is free to agree to using law/courts of a jurisdiction other than CA for contract disputes -- but also think it is most unlikely to do so for standard agreements with contracted parties. Why would it want to take on risks of different laws and adjudictaion systems, not to mention cost of hiring local counsel?
David McAuley (RySG):agree @ Phil
Avri Doria:well Regiries and REgistrars in other jjurisdictions might find it favorable.
jorge cancio (GAC Switzerland):from the 2nd drafzt report: "1043 Initial gap assessment based on current CCWG-Accountability proposals: 1044 At this point of the work of the CCWG-Accountability, taking into account the comments received, the following issues have been identified for further investigation: • Requirement 4 (ability to sue and be sued to enforce Bylaws or accountability mechanisms): while some consider this requirement to be necessary, others would avoid as much as possible the use of any single country’s legal system. • Trade-off between CCWG-Accountability requirements and options under California law, particularly when discussing the community empowerment model. • Whether IRP decisions against ICANN would be binding despite local jurisdiction decisions. • Requirement 3 on governing law for contracts with registrars and registries may require further investigation. 1045 While these issues require further investigation, the CCWG-Accountability has not yet conducted a substantive examination of alternative jurisdict
jorge cancio (GAC Switzerland):....jurisdictions that would better fit its requirements. While some commenters suggest that incorporation of ICANN under other legal systems, such as Swiss not-for-profit, would be beneficial (yet the basis for their assumption remains uncertain), further analysis and deliberation is needed on a fact-based approach to be entertained during Work Stream 2. "
jorge cancio (GAC Switzerland):at least now its on the record :-)
David McAuley (RySG):Thanks all, good bye
CW:Thankyou everyone. B'ye. CW
Bernard Turcotte Staff Support:bye all
jorge cancio (GAC Switzerland):bye all