Sub-group Members: Andreea Brambilla, Andrew Harris, Avri Doria, Becky Burr, Brian Scarpelli, Christopher Wilkinson, Claudio Lucena, David McAuley, Erich Schweighofer, Farzaneh Badii, Finn Petersen, Greg Shatan, Griffin Barnett, Kavouss Arasteh, Khouloud Dawahi, Paminder Singh, Philip Corwin, Raphael Beauregard-Lacroix, Steve DelBianco, Tatiana Tropina, Thiago Jardim, Wale Bakare
Observers/Guests: Thomas Rickert
Staff: Bernard Turcotte, Berry Cobb, Brenda Brewer, Meghan Healy, Nigel Hickson
Apologies: Jorge Cancio, Herb Waye
** If your name is missing from attendance or apology, please send note to email@example.com **
2. Review of Agenda (2 minutes)
3. Administration (1 minute)
3.1. Changes to SOIs
3.2. Identify Audio Only and Phone Number Participants
4. Issues (50 minutes)
4.1. Review of Proposed Issues List assembled from submissions
4.1.1. Confirm that all submitted proposed issues are listed
4.2. Process for ordering issues
4.3. Discussion of Issue: Choice of law for registry and registrar agreements
4.4. Next Steps
5. AOB (5 Minutes)
6. Adjourn (next meeting 6 September 1900UTC)
Raw Captioning Notes
Disclaimer: This rough edit transcript, which may contain missing, misspelled or paraphrased words, is only provided for your immediate review and is not certified as verbatim and is not to be cited in any way.
- Begin next call with a discussion of choice of law issue in registrar and registry agreements
- GS to create a google doc for major issues and distribute link to list.
- GS to create a google doc for the OFAC recommendation and distribute the link to the list.
- Participants review the major issues google doc to ensure all issues are presented in some fashion (the objective was to regroup issues and not to list issues presented by individuals)
- Participants review the draft OFAC recommendation google doc.
Brenda Brewer: (8/30/2017 05:40) Good day and welcome to Jurisdiction Subgroup Meeting #44 on 30 August 2017 @ 13:00 UTC!
Brenda Brewer: (05:40) If you are not speaking, please mute your phone by pressing *6 (star 6). To unmute, *6. This call is recorded.
Brenda Brewer: (05:40) Reminder to all, for captioning and transcription, please state your name before speaking and speak slowly.
Tatiana Tropina: (06:01) Hi all
Wale Bakare: (06:01) Hi everyone. Good morning/afternoon
David McAuley: (06:02) I am 8624
Brenda Brewer: (06:03) Thank you, David.
Thiago Jardim: (06:10) Apologies, I'm late
Wale Bakare: (06:14) Maybe US registrants operating outside US?
Farzaneh Badii: (06:15) we discussed this issue. and provided a possible solution.
Wale Bakare: (06:16) Are you referring to US registrants operating outside US but based in the US, that is often the case though with TLD services
Farzaneh Badii: (06:17) when will we discuss the solutions?
Farzaneh Badii: (06:19) But Kavouss we ahve discussed this. Sam clarified it won't
Wale Bakare: (06:20) Yes, registrars, i mean but he mentioned "registrants"
Kavouss Arasteh: (06:21) what is significant who decides whther a business is or is not significvant
Wale Bakare: (06:21) If they are based in the US - means service operations
Bernard Turcotte - ICANN: (06:21) @Kavouss - that is for the registrar to decide vs OFAC rules
Kavouss Arasteh: (06:22) This cause considerable difficulties in providing erormous advantage to US
Greg Shatan: (06:24) I don't understand what enormous advantage you are referring to.
David McAuley: (06:24) Let's look at the OFAC proposal on the table
Kavouss Arasteh: (06:24) tHIAGO THE SECOND PART OF WHAT YOU SAID HAS NEGATIVE IMPACT ON THE REGISTRANT DEALING WITH THE LATER PART . tHIS GIVE SIGNIFICANT ADVANTAGE TO us
Thiago Jardim: (06:24) Thank you.
Kavouss Arasteh: (06:25) Sorry for CAP, i regret
Farzaneh Badii: (06:25) I don't know why we are discussing this again. we have discussed this. it's time to talk about the solutions
Wale Bakare: (06:25) Can we expantiate what OFAC sanction real about, again?
Kavouss Arasteh: (06:26) Greg, may you and Sam clarifiy that issue which is ambigeous
Thiago Jardim: (06:26) A resquest for clarification: where do the "notes" in the sheet come from?
Bernard Turcotte - ICANN: (06:28) @Kavouss - what issue?
Raphael Beauregard-Lacroix: (06:29) all good on my side
Bernard Turcotte - ICANN: (06:30) Parminder - new hand?
David McAuley: (06:30) should we note other national courts jurisdiction over ICANN in this line item?
Bernard Turcotte - ICANN: (06:30) 30 minutes left in call
David McAuley: (06:30) It seems reasonable that we should
Brian Scarpelli 2: (06:30) +1
David McAuley: (06:31) Thanks Greg
David McAuley: (06:32) I think we might need proof about exclusive enforcement jurisdiction, perhaps a legal question to pose
Becky Burr: (06:33) there's an international treaty on enforcement of judgments that would apply
Raphael Beauregard-Lacroix: (06:33) well to my understanding as far as there are assets abroad other jurisdictions may enforce court decisions as well.
David McAuley: (06:33) agreed Becky and Greg
Raphael Beauregard-Lacroix: (06:33) Becky: isnt that only for arbitration?
Kavouss Arasteh: (06:33) In my view, US should not have special enforecement power resulting the location of ICANN in California
Raphael Beauregard-Lacroix: (06:34) Theres the Hague Conv but its only Singapore, EU and Mexico afaik. So still limited circulation of court decisions.
Wale Bakare: (06:34) Well, until ICANN is fully internationlized, @Kavouss
Wale Bakare: (06:35) *internationalized
Raphael Beauregard-Lacroix: (06:35) Greg: yes, indeed, but you would need to be quite convincing ;)
Raphael Beauregard-Lacroix: (06:36) without any treaty coming in support
Raphael Beauregard-Lacroix: (06:36) Thiago: yes, but ICANN may have some assets abroad, although I don't know to what extent.
David McAuley: (06:37) ICANN has offices around the world, no?
Parminder: (06:37) Agree with thiago... here we are talking also about public law with coercive enforcement which only US can do within US
Greg Shatan: (06:38) The notes were made by Bernie and me as we prepared this document.
Parminder: (06:38) even private law judgements can be enforced by use of force. As for enforcing outside country's judgements that is entiely volutary for a state to do
Wale Bakare: (06:38) ICANN has hubs and regional engagement offices around the world
Parminder: (06:39) which can claim they do not make policy, and if threat of use of force becomes real, they just close them and open elsewhere, which cant be dne with icannd HQ in the US
Thiago Jardim: (06:40) We didn't have to go off topic if we limited ourselves to record the addition suggested to the issue on the table.
Thiago Jardim: (06:40) That's what we have been doing, recording the issues.
Thiago Jardim: (06:40) as proposed by proponents.
Raphael Beauregard-Lacroix: (06:40) I think we are discussing about two different things. Obvs no police is going to go to ICANN US but Belgian police could go after ICANN Belgium or Belgian bailiffs could go after ICANN Belgium to get satisfaction of a European court decision.
Raphael Beauregard-Lacroix: (06:41) *foreign police
Thiago Jardim: (06:41) Raphael. The point is that ICANN's core activities related to the management of the DNS are located within the US
Becky Burr: (06:41) Applicable US Supreme Court precedent regarding enforcement of foreign judgments: When an action is brought in a court of this country by a citizen of a foreign country against one of our own citizens to recover a sum of money adjudged by a court of that country to be due from the defendant to the plaintiff, and the foreign judgment appears to have been rendered by a competent court, having jurisdiction of the cause and of the parties, and upon due allegations and proofs and opportunity to defend against them, and its proceedings are according to the course of a civilized jurisprudence, and are stated in a clear and formal record, the judgment is prima facie evidence, at least, of the truth of the matter adjudged, and the judgment is conclusive upon the merits tried in the foreign court unless some special ground is shown for impeaching it, as by showing that it was affected by fraud or prejudice or that, by the principles of international law and by the comity of our own country, it is not entitled to full
Becky Burr: (06:41) faith and credit
Bernard Turcotte - ICANN: (06:41) time check - 20 minutes left in call
Thiago Jardim: (06:41) Apologies, I have to leave.
Thiago Jardim: (06:41) Good luck going through the rest of the list.
Raphael Beauregard-Lacroix: (06:42) Thiago: yes indeed that is most likely the case although I would not be able to say the precise extent (because of my limited knowledge)
Raphael Beauregard-Lacroix: (06:43) Becky: thanks for that! good to know.
Philip Corwin 2: (06:44) By the standard just articulated by Kavouss, ICANN could not be located and subject to the jurisdiction of any nation because that nation would always have some legal authority beyond that of other nations due to ICANN's incorporation under its laws.
Wale Bakare: (06:47) What is the difference between this topic - 1) " Non-interference of States in ccTLDs of other States" and 2) this topic - "Non-interference of international actors in ICANN’s core activities". IMHO, the two topics should be reframed to make a topic rather than repeating same issue over and over.
David McAuley: (06:47) Thanks Greg and Bernie for combing the lists
Kavouss Arasteh: (06:47) Phil, Not exactly as you put it. What I said was equal footing of all governments
Raphael Beauregard-Lacroix: (06:48) alright
Raphael Beauregard-Lacroix: (06:48) I,ll be there next week too
Raphael Beauregard-Lacroix: (06:48) and maybe Jorge too since he contributed to that oen
Philip Corwin 2: (06:50) @Kavouss-- with respect, I believe you have proposed a standard that is impossible to meet in practice so long as ICANN is a non-profit corporation incorporated in a specific jurisdiction
Farzaneh Badii: (06:52) A bit of background on OFAC doesn't hurt.
Kavouss Arasteh: (06:54) Yes ,it really does not help and may be misinterpredted
Parminder: (06:54) i cant get my audio on, ill come later
Farzaneh Badii: (06:54) didn't understand the argument against getting general OFAC license.
David McAuley: (06:55) I think it would be a bad idea
David McAuley: (06:55) That is what I meant to say, Farzi
Kavouss Arasteh: (06:56) Farzaneh +1
Bernard Turcotte - ICANN: (06:56) time check - 5 minutes left in call
Farzaneh Badii: (06:57) It is complex but worth trying.
Farzaneh Badii: (06:57) I agree Greg. they are specific
Parminder: (07:00) id have to leave in 2 mins
Raphael Beauregard-Lacroix: (07:00) I must go, but I'll make sure to have a look at the transcript. Best all,
Brian Scarpelli 2: (07:00) i may be in and out for the remainder of the call, sry
Parminder: (07:00) can i take the mike
Philip Corwin 2: (07:00) Thx for that clarification, Greg.
David McAuley: (07:02) That would be a good question
David McAuley: (07:02) for Sam
Andreea Brambilla: (07:03) Apologies, I have to drop off for another meeting.
Farzaneh Badii: (07:06) we reported that Greg. It's my blog! I wrote that blog! not bad to say that!
Farzaneh Badii: (07:07) I really think Kavouss needs to make references when he actually points to the blog I wrote! It was not anonymous you know.
Farzaneh Badii: (07:14) right thanks. Authors name is Farzaneh
Farzaneh Badii: (07:16) thanks Greg . Bye all
Tatiana Tropina: (07:16) thanks all and thanks Greg - bye
Wale Bakare: (07:16) Thanks all, bye for now!
Bernard Turcotte - ICANN: (07:16) bye all
Philip Corwin 2: (07:16) Bye all
David McAuley: (07:16) Thanks Greg, bye all
avri doria: (07:16) bye
Nigel Hickson: (07:16) thanks