Sub-group Members: Amrita Vasudevan, Anne-Rachel Inne, Beth Bacon, Christopher Wilkinson, David McAuley, Erich Schweighofer, Farzaneh Badii, Finn Petersen, Greg Shatan, Griffin Barnett, Jorge Cancio, Kavouss Arasteh, Konstantinos Komaitis, Mark Carvell, Matthew Shears, Pär Brumark, Parminder Jeet Singh, Paul McGrady, Pedro da Silva, Philip Corwin, Rafael Perez Galindo, Silvana Rivero, Tijani Ben Jemaa, Vinay Kesari. (24)
Observers: Taylor RW Bentley
Staff: Brenda Brewer, Bernard Turcotte, Berry Cobb, Karen Mulberry, Yvette Guigneaux.
Apologies: Cheryl Langdon-Orr
** If your name is missing from attendance or apology, please send note to acct-staff@icann.org **
The Adobe Connect recording is available here: https://participate.icann.org/p1x4dtb1eip/
The audio recording is available here: http://audio.icann.org/accountability/ccwg-accountability-jurisdiction-20oct16-en.mp3
1. Welcome
2. Multiple Layers of Jurisdiction. https://docs.google.com/document/d/1oE9xDIAJhr4Nx7vNO_mWotSXuUtTgJMRs6U92yTgOH4/edit?usp=sharing
3. The influence of ICANN’s existing jurisdictions relating to resolution of disputes (i.e., choice of law and venue) on the actual operation of policies and accountability mechanisms. https://docs.google.com/document/d/1_uxN8A5J3iaofnGlr5gYoFVKudgg_DuwDgIuyICPzbk/edit?usp=sharing
4. Preparation of Status Report before Hyderabad
5. Hyderabad: What do want to accomplish in F2F?
6. Adjourn
Notes
(Including relevant parts of chat):
24 participants at start of call
1. Welcome
Apologies: Cheryl Langdon-Orr
Greg Shatan: Update from leadership call earlier this week. Looking for more participation from participants. Comments will be removed once the document is completed.
Jorge Cancio (GAC Switzerland): I would request staff and/or the rapporteur to take on board also the comments on the margin.
Greg Shatan: do not agree. If you have text please enter it.
Vinay Kesari: Agree with Greg on Jorge's point - it would be difficult for staff/ rapporteurs to do that without inserting their own value judgments (except where it's a pure copy-paste of a comment into the body).
Jorge Cancio (GAC Switzerland): I understand that we have to include our comments not as "comments", but as "suggestions" - otherwise valuable efforts and time are lost.
Vinay Kesari: Jorge - absolutely.
Farzaneh Badii: Vinay you need to put the doc on comment mode. That way automatically goes on suggestion mode when people sign in
Kavouss Arasteh: We are not making progress. We have multiple fronts - there is no focusing on a given topic and we do not seem to be progressing on any of them. What should we focus on to have some progress? We need to prioritize.
Farzaneh Badii: it's ok Greg. No group is making progress in some people's views.
David McAuley: Could use a tutorial on google docs. Also GS how do we want to use the Google docs?
Bernie Turcotte: Staff will post links to tutorials that are available (action item)
Greg Shatan: Review of Google Docs modes.
Pedro da Silva - [GAC Brasil]: If an alternative to google docs can be sought, I would be grateful. I have issues accessing it from work.
Kavouss Arasteh: I have serious difficulties to have access to GD
Parminder: I think that while entering into the google doc is necessary to have a collaborative document move along, it may be useful to get the important issues/ arguments/ justifications also to the enlist so that others can see and if needed weigh in on.
Kavouss Arasteh: We have been working during WS1 in 3 Cross Community Group with redline doc. and everybody was happy
Farzaneh Badii: I agree with that Parminder, I think we can discuss the most pressing issues on the mailing list as well
Jorge Cancio (GAC Switzerland): I would also like to respectfully request that some empathy is developed and displayed for those of us who are not us law specialists - i.e. that an effort is made to understand the issue presented, without entering in endless debates about the exact meaning something has under US law specifically.
Tijani Ben Jemaa: I remind everyone that ICANN makes Wiki tool that is available to all and works fine as this is what we use in ALAC.
Farzaneh Badii: hmm I wonder if we really needed to spend 30 minutes discussing usage of google doc.
Kavouss Arasteh: It is frustrating that at 8th meeting we are discussing "working Method "+
Farzaneh Badii: you bring it up Kavouss.
2. Multiple Layers of Jurisdiction.
Matthew Shears: Greg do you think it is possible at this juncture to clean this doc up and post again as a consolidated text for comment
Kavouss Arasteh: Why are these things layers of jurisdiction?
Greg Shatan: this is based on the requirements of WS1 Recommendation 12 on Jurisdiction.
Kasvouss Arasteh: would it not be to have this in tabular form where we could separate what is from the Annex 12 and then another column for comments etc. Similarly to what was done in Human Rights.
Greg Shatan: this is different from the HR work which is charged with interpreting a Bylaws text. I will work on integrating comments etc. the next version of the layers document.
3. The influence of ICANN’s existing jurisdictions relating to resolution of disputes (i.e., choice of law and venue) on the actual operation of policies and accountability mechanisms.
David McAuley: This document gets, in part, to the notion of venue. IRP will be venue-less with the new rules.
Jorge Cancio (GAC Switzerland): thanks to David for that info. What about the language of the proceedings? The rule is English, what about additional "official ICANN languages"?
Farzaneh Badii: where can we enforce the award, and would online hearing be accepted as hearing in some jurisdictions?
David McAuley (RySG): I better check on that Jorge rather than rely on memory - will do that and come to list with that Q+A
Farzaneh Badii: I think it makes sense to be in English. Lowers the costs in general.
Jorge Cancio (GAC Switzerland): And lowers the accessibility for many stakeholders
Farzaneh Badii: not for many. That’s an exaggeration. Which led ICANN to translate many things to 6 languages and their usage is absolutely unknown
Jorge Cancio (GAC Switzerland): dear Farzaneh: language is an issue, for instance for many GAC members - before making general assertions we would need some data.
Farzaneh Badii: yes exactly Jorge - so let’s get the data then talk about accessibility.
David McAuley (RySG): Jorge: Bylaw Article 4.3(l) says this: All IRP proceedings shall be administered in English as the primary working language, with provision of translation services for Claimants if needed.
Jorge Cancio (GAC Switzerland): I guess that working in your mother language or at least one of the official languages helps for starters. That English is accessible for all interested is what would need to be supported by data, if you permit
Farzaneh Badii: David, is it possible at this stage of IRP group work, to talk about enforcement?
Jorge Cancio (GAC Switzerland) 2: Dear David, I suggest that you take that issue on board - at least to consider it, thanks!
David McAuley (RySG): Will do what I can and keep you informed Jorge. Not sure what latitude there is now.
Christopher Wilkinson: @Bylaw Article 4.3(l): That would not be acceptable in Europe in my experience.
Jorge Cancio (GAC Switzerland) 2: @David: thx! Please keep me posted...
Greg Shatan: Discussion of draft document.
Jorge Cancio (GAC Switzerland) 2: when hearings are made electronically, what is the venue that is considered legally?
Farzaneh Badii: yes, online hearing might not be accepted in some jurisdictions
Greg Shatan: there have been contributions on this document and would ask everyone to go through these and make comments or add text.
Vinay Kesari: Farzi, I think they have gone on record stating that local law would apply in some matters such as employment law, property law (with respect to renting premises for example). My last comment was in response to your earlier comment on jurisdictions where ICANN has offices, not incorporated
Tijani Ben Jemaa: With IRP there is a standing panel. As to the type of disputes - there is something missing here - what about applicants for new gTLDs who are not contracted parties?
Greg Shatan: I am uncertain about TBJ assertion that ICANN incorporation means IRP is California jurisdiction.
Christopher Wilkinson: It would be very reassuring to confirm that IRP is NOT subject to CA law. The MAIN point about IRP is to ensure that it is accessible and affordable for ALL eventual complainants, including private individuals. CW
Parminder: IRP is ICANN's internal arrangement. I am not sure it is an issue of jurisdiction, to be considered here.
Farzaneh Badii: so there can be a choice of substantive law for IRP?
Farzaneh Badii: IRP is not internal management Parminder it's like arbitration
Parminder: Yes, appeal against or for enforcement of IRP decisions may be an issue of jurisdiction
Jorge Cancio (GAC Switzerland) 2: IRP is a legal accountability mechanism with jurisdictional aspects
Farzaneh Badii: it's binding I think, there might not be an appeal
Greg Shatan 2: Influence/Effect/Consequence are all possibilities.
Farzaneh Badii: so there can be a choice of substantive law for IRP?
Kavouss Arasteh: We are moving in the right direction. We should not use the word Influence.
David McAuley: The standing panel will be selected considering diversity. IRP cases will be decided vs the Bylaws and not any local laws.
Greg Shatan 2: Q: What substantive law is applied in an IRP? However, we have to be careful with IRP given there is another group working on it.
Kavouss Arasteh: re TBJ question is an important question and should be looked again and answered.
Greg Shatan: will include this.
David McAuley (RySG): Bylaw Article 4.3(v) is relevant here - I will read it is short. If push comes to shove the panel may have to address. Also rules say it will be a DeNovo decision.
4. Preparation of Status Report before Hyderabad
Greg Shatan: Will draft a document and circulate for comment.
5. Hyderabad: What do want to accomplish in F2F?
Kavouss Arasteh: Major questions should be brought up and we need to identify these before going to Hyderabad
Tijani Bern Jemaa: There is no meeting of sub-groups. If there is a sub-group meeting, we have to know so we can prepare.
Jorge Cancio (GAC Switzerland) 2: we need to engage in a fact finding exercise at some point of time, including on how well stakeholders have fared and perceived existing rules on applicable law, both in judicial, arbitration and internal mechanisms (such as IRP)
Bernard Turcotte: there are no facilities or time available for sub-group meetings in Hyderabad.
Greg Shatan: We should start thinking what questions we will have for ICANN legal and expert external legal advice. Everyone please continue to contribute. Adjourned - we have a meeting next week.
Action Items:
Staff to post links to tutorials on using Google Docs
Greg Shatan to post draft status report for Hyderabad to group for comments by end of weekend.
Documents Presented
Brenda Brewer: Good day all and welcome to the Jurisdiction Subgroup Meeting #8 on 20 October 2016 @ 13: 00 UTC!
matthew shears: ooops a little early!
Kavouss Arasteh: Hi Everybody:
Kavouss Arasteh: Dear Brenda
Kavouss Arasteh: pls remind operator to dial me intks
Bernard: hi all
Pedro da Silva - [GAC Brasil]: Hi everyone
Bernard: Please mute if not speaking
Pedro da Silva - [GAC Brasil]: @Brenda: I am the one who dialled in with number 6609
David McAuley (RySG): Hi Brenda, I am 4154
Brenda Brewer: Thanks David!
David McAuley (RySG): wow - loud noise
David McAuley (RySG): Am I alone in hearing that
Farzaneh Badii: no you are not
David McAuley (RySG): thanks Farzi
Yvette Guigneaux: hi everyone - good day
David McAuley (RySG): now seems ok
Farzaneh Badii: yes
Greg Shatan: Whoever just dialed in sounds like they are standing behind a jet engine. Seems better now.
jorge cancio (GAC Switzerland): Hi all
jorge cancio (GAC Switzerland): I'm the swiss number...
Yvette Guigneaux: Please remember if you're not speaking to mute your phone *6
jorge cancio (GAC Switzerland): I would request staff and/or the rapporteur to take on board also the comments on the margin.
Christopher Wilkinson: Could staff please send a vade mecum as to how to edit a google doc. Never done that. CW
jorge cancio (GAC Switzerland): I take note of your reaction to my suggestion
Yvette Guigneaux: HI Christopher - do you need instructions on how to edit a google doc?
Yvette Guigneaux: Would the 202 and 703#'s kind identify yourselves if you can see the chat?
Vinay Kesari: Agree with Greg on Jorge's point - it would be difficult for staff/ rapporteurs to do that without inserting their own value judgments (except where it's a pure copy-paste of a comment into the body)
Vinay Kesari: Hi Kavouss, your voice is very unclear.
Farzaneh Badii: I have that problem too Vinay . thought it was on my end
Farzaneh Badii: oh it's getting better
Vinay Kesari: Better now
jorge cancio (GAC Switzerland): I understand that we have to include our comments not as "comments", but as "suggestions" - otherwise valuable efforts and time are lost
Farzaneh Badii: it's ok Grec. no group is making progress in some people's views.
Vinay Kesari: Jorge - absolutely.
Farzaneh Badii: Vinay you need to put the doc on comment mode. that way automatically goes on suggestion mode when people sign in
Farzaneh Badii: Sorry if you have done that already : )
Kavouss Arasteh: Ifully support Dvid not to use Google doc
Farzaneh Badii: I wonder if David really said not to use google doc ...
matthew shears: there are few alternativews to using google doc - it works well in the brainstorming phase
David McAuley (RySG): no i can power through google doc - but could use a tutorial if one is available
Bernie Turcotte: Staff will post links to tutorials that are avaialble
David McAuley (RySG): thanks Bernie
Pedro da Silva - [GAC Brasil]: If an alternative to google docs can be ought, I would be grateful. I have issues accessing it from work.
Kavouss Arasteh: I have serioous difficulties to have acceess to GD
Pedro da Silva - [GAC Brasil]: sought*
Kavouss Arasteh: WHAT IS WRONG WITH REDLINE TYPE DOC PLS ?
Farzaneh Badii: we need to work collaboratively
Parminder: I think that while entering into the google doc is necessary to have a collaborative document move along, it may be useful to get the important issues/ arguments/ justifications also to the elist so that others can see and if needed wight in on.
Kavouss Arasteh: We have been working during WS1 in 3 Cross Copmmunioty Group with redline doc. and ecvery body was happy
Farzaneh Badii: I agree with that Parminder , I think we can discuss the most pressing issues on the mailing list as well
Jorge Cancio (GAC Switzerland): I would also like to respectfully request that some empathy is developed and displayed for those of us who are not us law specialists - i.e. that an effort is made to understand the issue presented, without entering in endless debates about the exact meaning something has under US law specifically
Matthew Shears: Greg do you think it is possible at this juncture to clean this doc up and post again as a conslidated text for comment
Kavouss Arasteh: It is frustrating that at 8TH meeting we are discussing "working Method "+
Farzaneh Badii: hmm I wonder if we really needed to spend 30 minutes discussing usage of google doc.
Farzaneh Badii: you bring it up Kavouss.
Kavouss Arasteh: By all means
Kavouss Arasteh: NO HUMMM
Farzaneh Badii: what was the most contested issue?
Farzaneh Badii: nice. online dispute resolution
Farzaneh Badii: I wanna know about enforcement
Jorge Cancio (GAC Switzerland): thanks to David for that info. What about the language of the proceedings? The rule is English, what about additional "official ICANN languages"?
Farzaneh Badii: where can we enforce the award, and would online hearing be accepted as hearing in some juriisdictions?
David McAuley (RySG): I better check on that Jorge rather than rely on memory - will do that anc come to list with that Q+A
Christopher Wilkinson: Sound is breaking up here.
Farzaneh Badii: I think it makes sense to be in English. lowers the costs in general.
Jorge Cancio (GAC Switzerland): And lowers the accessibility for many stakeholders
Farzaneh Badii: not for many. that's an exaggeration
Farzaneh Badii: whch led ICANN to translate many things to 6 languages and their usage is abosolutely unknown
Farzaneh Badii: I want to know about enforcement of the arbitral award . where can it be enforced
Jorge Cancio (GAC Switzerland): dear Farzaneh: language is an issue, for instance for many GAC members - before making general assertions we would need some data
Farzaneh Badii: yes exactly Jorge
Farzaneh Badii: so lets get the data then talk about accessibility
David McAuley (RySG): Jorge: Bylaw Article 4.3(l) says this: All IRP proceedings shall be administered in English as the primary working language, with provision of translation services for Claimants if needed.
Jorge Cancio (GAC Switzerland): I guess that working in your mother language or at least one of the official languages helps for starters. That English is accessible for all interested is what would need to be supported by data, if you permit
Farzaneh Badii: David, is it possible at this stage of IRP group work, to talk about enforcement?
David McAuley (RySG): distorted sound affecting Kavouss comments
Jorge Cancio (GAC Switzerland): thanks, David: are the rules going to develop that provision more specifically? perhaps in a diversity-enhancing fashion?
David McAuley (RySG): Farzi, the IRP IoT has been working on rules of procedure but there is work beyond that to do. Enforcement is pretty much addressed in bylaws as i recall
David McAuley (RySG): I will check Jorge but I don't think so. If there is further discussion on language in draft rules i will let you know.
Farzaneh Badii: Thanks David.
jorge cancio (GAC Switzerland) 2: Dear David, I suggest that you take that issue on board - at least to consider it, thanks!
David McAuley (RySG): Will do what I can and keep you informed Jorge. Not sure what latuitude there is now.
Christopher Wilkinson: @Bylaw Article 4.3(l): That would not be acceptable in Europe in my experience.
jorge cancio (GAC Switzerland) 2: @David: thx! please keep me posted...
Farzaneh Badii: but didn't the lawyers say that the law of the countries where ICANN has offices but not incorporated would not apply?
Bernie Turcotte: Time reminder: 15 minutes left in the call
jorge cancio (GAC Switzerland) 2: when hearings are made electronically, what is the venue that is considered legally?
Farzaneh Badii: yes online hearing might not be accepted in some jurisdictions
Vinay Kesari: Farzi, I think they have gone on record stating that local law would apply in some matters such as employment law, property law (with respect to renting premises for example)
Vinay Kesari: My last comment was in response to your earlier comment on jurisdictions where ICANN has offices, not incorporated
Kavouss Arasteh: gREC, i WAS TALKING
Greg Shatan 2: Kavouss, we did not hear you.
Kavouss Arasteh: Why I WAS INTERRUPTED
Bernie Turcotte: there was no sound Kavous
Kavouss Arasteh: i was remotely mutted
Brenda Brewer: Kavouss, your line is open on this end and has been. Thank you.
Farzaneh Badii: Thanks Vinay
Christopher Wilkinson: It would be very reassuring to confirm that IRP is NOT subject to CA law.
Christopher Wilkinson: The MAIN point about IRP is to ensure that it is accessible and affordable for ALL eventual comlaignants, including private individuals. CW
Parminder: IRP is ICANN's internal arrangement. I am not sure it is an issue of jurisdiction, to be considered here.
Farzaneh Badii: so there can be a choice of lsubstantive law for IRP?
Farzaneh Badii: IRP is ot internal management Parminder
Farzaneh Badii: it's like arbitration
Parminder: Yes, appeal against or for enforcement of IRP decisions may be an issue of jurisdiction
jorge cancio (GAC Switzerland) 2: IRP is a legal accountability mechanism with jurisdictional aspects
Farzaneh Badii: it's binding I think . there might not be an appeal
Greg Shatan 2: Inflience/Effect/Consquence are all possibiliteis.
Parminder: effect or consequence is better
Greg Shatan 2: Q: What substantive law is applied in an IRP?
jorge cancio (GAC Switzerland) 2: thanks David for good infos
Bernie Turcotte: time reminder: last 5 minutes
Jorge Cancio (GAC Switzerland) 2: Greg raises an important point which leads us again to the need to benefit from analysis of what the applicable law has been so far in dispute resolution procedures, including IRPs
Farzaneh Badii: I wanna know the answer to Greg's question
Parminder: yes, agree we shd only get into specific substantive law aspect of IRP
Christopher Wilkinson: Please post link to the IRP group (perhaps I am in the wrong group ;-))
David McAuley (RySG): Bylaw Article 4.3(v) is relevant here - I will read it is short
David McAuley (RySG): can do on list too
Greg Shatan 2: Q: How is substanive law decided on in an IRP?
Parminder: when is the f2f planned - which date
Farzaneh Badii: yes support Greg's question to be discussed
Pedro da Silva - [GAC Brasil]: 2nd of November, Parminder
Christopher Wilkinson: hyderabad: 1. Ensure that on-line particiation (remote) is working OK. Otherwise, #57 meetings should not be decision making.
Bernie Turcotte: No meeting or facilites for sub-groups
Jorge Cancio (GAC Switzerland) 2: we need to engage in a fact finding exercise at some point of time, including on how well stakeholders have fared and perceived existing rules on applicable law, both in judicial, aribitration and internal mechanisms (such as IRP)
David McAuley (RySG): If there are break-out sessions I hope those of us attending remotely can participate
Matthew Shears: + 1 David
Farzaneh Badii: I am going to leave you all. not attending F2F. will be at my computer.
Farzaneh Badii: bye
David McAuley (RySG): good bye Farzi
David McAuley (RySG): ok thanks Bernie
Matthew Shears: disappointing to hear
David McAuley (RySG): I will be under 4th (virtual) palm tree
Pedro da Silva - [GAC Brasil]: +1 Matthew
Paul McGrady: Thatwould be hard to pull off and I would be concerned about who might get excluded
David McAuley (RySG): good points Greg
David McAuley (RySG): Thanks Greg, Vinay, staff and all
Matthew Shears: thanks
jorge cancio (GAC Switzerland) 2: thanks and bye all!
Bernie Turcotte: bye all
David McAuley (RySG): good bye
Erich Schweighofer: Bye all.