Proposed Issues Submitted by Subgroup Participants: Draft for Review in Meeting of August 30 2017

Proposed Issues: Major Topics

Individual Proposed Issues

Submitted by

Notes

OFAC

         ICANN contractual language in RAA relating to OFAC licenses

         Applicability of OFAC to Non-US Registrars

         Application of OFAC restrictions by Non-US Registrars

         Approval of gTLD registries

         Cancellation by some registrars of domain name registrations owned by registrants in countries subject to OFAC

Farzaneh Badii, Kavouss Arasteh

Context: Study of general licenses, ICANN’s response to need for specific licenses with registries and registrars will be discussed as potential solutions

Provisions relating to choice of law in certain ICANN Agreements

         Registry Agreements do not have a provision stating the governing law of the agreement

         Registrar Agreements do not have a provision stating the governing law of the agreement

         Arbitration of Registry Agreement: Lack of choice in arbitral body and jurisdiction of arbitration

Lack of governing law provisions could lead to courts more likely choosing their own law as governing law

         provisions regarding the venue for hearing disputes in registry agreements are limited to one specific venue, with flexibility allowed only in contracts with Governments and other special cases [1]

Raphael Beauregard-Lacroix, Jorge Cancio

 

U.S. court jurisdiction over ICANN activities

         Jurisdiction over ICANN's activities that (1) comply with GAC advice or (2) are otherwise based on powers recognised onto Governmental authorities according to ICANN Bylaws

         ICANN policy development and policy implementation activities which ICANN performs in the global public interest are subject to litigation in US courts

Thiago Jardim

ICANN activities “based on powers recognised onto Governmental authorities according to ICANN Bylaws” may relate mostly to ccTLDs and if so it should be considered as part of those potential issues.

Non-interference of international actors in ICANN’s core activities

         States (and International Organizations) should refrain from exercising concurrent jurisdiction respecting ICANN's special role and governance model.

Erich Schweighofer

Raised in the context of “the issue on partial immunity”

US's executive, regulatory, legislative and judicial jurisdiction over things ICANN and the unique solution of general immunity under the US International Organizations Immunities Act

         US executive and regulatory powers over ICANN

         Domain seizures by US executive agencies like US customs: Could these potentially be applied to gTLDs?

         US legislature's unlimited power over ICANN

         US's courts' judicial writ over all aspects of ICANN: Almost any US court can take up for its judicial consideration whether ICANN works within each of such applicable law or not.

Parminder

Discussed in the context of general immunity, as follows: “The only solution there is a general immunity under the US International Organizations Immunities Act, with proper customization and exceptions for ICANN to enable to be able to perform its organizational activities from within the US. The chief exception I understand would be the application of California non-profit law.”

US Courts may hear disputes regarding Community TLDs

         US Courts may hear disputes regarding the management of a C c ommunity TLD ( not only Community-based applications ( e.g., .swiss, .music., .gay) but all TLDs that “serve a community”) which should be dealt mainly under the relevant local laws [2] and by the relevant local authorities

US Courts may hear disputes relating to C c ommunity TLDs (as defined above)

         Decisions affecting fundamentally the global community as a whole, or specific local communities, should be protected against undue interference by the authorities of one specific country [3]

Jorge Cancio, Thiago Jardim

At least partially related to choice of law issue. Subset of potential issue of US Courts jurisdiction generally

Making sure that the hearings of the IRP are location-neutral

 

Jorge Cancio

Majority of "meetings" of the IRP are virtual. In person meetings would be rare and at the discretion of the panel - No explicit solution proposed

Non-interference of States in ccTLDs of other States

         Courts overriding ccTLD delegations

         “In Rem” jurisdiction of US courts over ccTLDs

         Jurisdiction of US courts and e E nforcement measures by domestic agencies in respect of activities relating to the management of ccTLDs of other cou ntries. that interfere with ICANN's ccTLD management

Kavouss Arasteh, Farzaneh Badii, Thiago Jardim

First bullet point is S s ubset of potential issue of US Courts generally. The overall proposed issue has also been stated as: “US organs can possibly interfere with ICANN's ccTLD management, regardless of whether that has already happened.”  There appear to be no examples of this. The ccNSO will have a PDP on developing a dispute resolution system, which could address this as these are excluded from IRP as requested by the ccNSO (similar to ASO) . However, it has been asserted that the proposed issue would no t be resolved by such a dispute resolution system and that immunity from US jurisdiction should still be recommended.

California not-for-profit incorporation and headquarters location have a positive effect on ICANN accountability mechanisms and operations.

         Questioning and attempting to limit ability of third parties to litigate against ICANN in US courts undermines Work Stream 1 accountability mechanisms

         Work Stream 1 mechanisms take advantage of specific aspects of California law

         Questioning and attempting to limit ability of third parties to litigate against ICANN in US courts and use previously existing ICANN me chanisms has a negative effect on the perception of these accountability mechanisms .

         Application of US law to ICANN’s actions controls ICANN and subjects it to the rule of law: limiting this makes ICANN less accountable

Brian Scarpelli

Related to US court issues, also legislative and regulatory issues.

 


[1] see: - flexibility for IGO/public authorities/other special circumstances in allowing to choose between Geneva and L.A. (section 5.2. ALT registry agreement)

and

Judge/judicial disputes:

registries:

court in L.A.

flexibility for IGO/govt entities: court with jurisdiction in Geneva, unless agreement (ALT 5.2. registry agreement)

[2] Is this proposed issue limited to "community TLDs" that serve a city, state, country or region (i.e., a "Geographic TLD")?  If not, what would be the relevant local authority for, e.g., .gay?

[3] Apart from "the global community as a whole, or specific local communities," what remains?