List of Proposed Issues for Jurisdiction Subgroup Consideration v1.1
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Title of Proposed Issue
Description of Proposed Issue
Submitted by
DateSource(s) for Proposed Issue with Link(s)Reasons this is within our remitReasons this is outside our remitSupport for this as an accepted issueOpposition to this as an accepted issueAccepted/Rejected as an issue (with explanation)Notes
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Governing law for Registry agreementsThere is currently no governing law in the "Base Registry Agreement" (except for .eu and possibly other "legacy agreements"). This is an issue because: (1) the governing law is important in interpreting the contract, (2) not stating a governing law gives too much discretion to a court to determine the governing law of the contract, (3) it creates the possibility that different courts will apply different governing law and interpret the contract differently. Raphael Beauregard-Lacroix18/04Litigation summary which dealt with that issue (Employ Media LLC v ICANN)This issue as described is related to accountability to the extent that accountability is also predictability. It can be argued that ICANN is not being accountable by letting an arbitrator decide eventually of the law applicable to its standard form contracts. As a registry I may prefer to know the law that applies to the contract I have with ICANN, even if that law ends up being "foreign" to me. Given its legal resources, ICANN may have the means to disregard this and let the arbitrator decide on the applicable law, but this is probably not the case of most registries. In that sense, ICANN is not being responsible and is putting an extra burden on registries. Moreover, because these BRAs are standardised, a single arbitral award that would decide (for example) that the applicable law is the law applicable to the entity serving as the registry, all of sudden the admittedly American legal content of the BRAs would need to be interpreted in light of a myriad of various legal systems.
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Governing law for Registrar Accreditation AgreementThere is currently no governing law in the RAA. This is an issue because: (1) the governing law is important in interpreting the contract, (2) not stating a governing law gives too much discretion to a court to determine the governing law of the contract, (3) it creates the possibility that different courts will apply different governing law and interpret the contract differently. Greg Shatan10-Jul
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Sanctions/OFAC (US sanctions laws and policies administered and enforced by the Office of Foreign Assets Control ("OFAC"))US foreign policy limits ICANN's ability to accredit registrars and approve registries. See specific issues below.Internet Governance Project7-Jul1. Comments of IGP, https://go.icann.org/2sKouVc; 2. Comments of Iran; https://go.icann.org/2tuTeqk 3. Comments of Russia; https://go.icann.org/2tuwOFD 4. Comments of Richard Hill http://bit.ly/2tuDzXY 5. comments of Just Net Coalition https://go.icann.org/2tQVbzFThe subgroup was asked to explore how "jurisdiction of contracts and dispute settlements" affect ICANN's accountability (Accountability Report p. 6, Feb 2016) These aspects of US jurisdiction can undermine ICANN's accountability to its stakeholders as ICANN policy and decisions can be superseded by U.S. government policy. In the same report it is also stated that WS2 should be "Addressing jurisdiction-related questions, namely: “Can ICANN’s accountability be enhanced depending on the laws applicable to its actions?” The CCWG-Accountability anticipates focusing on the question of applicable law for contracts and dispute settlements." (p. 47) https://go.icann.org/2tRbKLPIGP
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Sanctions/OFAC (1): Registrar Accreditation1) ICANN RAA says it is under "no obligation" to seek an OFAC license; 2) even if it does seek a license it has no control over whether it is granted and the process can be long and is not transparent;
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Sanctions/OFAC (2): Applicability to non-US registrarsThere is a lack of clarity on whether registrars not in sanctioned countries but outside the US are bound by OFAC sanctions because of their contract with ICANN.
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Sanctions/OFAC (3): Approval of gTLD RegistriesUS foreign policy limits ICANN's ability to accredit registrars and approve registries.
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ICANN ccTLD delegationsInternet Governance Project7 JulyWeinstein v. Iran (Weinstein, 831 F.3d at 485-486) Analysis of the case carried out by Mathieu Weill at: https://go.icann.org/2uvbMa6 For furether analysis refer to Mueller/Badiei paper p. 478-480 http://www.stlr.org/download/volumes/volume18/muellerBadiei.pdfIf US courts override ICANN ccTLD delegation decisions it bypasses ICANN processes, undermining its accountability to its global multistakeholder community. This issue relates to applicable law and dispute settlement and therefore is within the mandate of this sub group.IGP
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In rem Jurisdiction over domain names, notably ccTLDsUS courts have in rem jurisdiction over domain names as a result of ICANN's place of incorporation, and US courts could possibly exercise jurisdiction in respect of domain names in ways that impair the services ICANN provides to foreign countries, notably over ccTLDs. Accordingly, the services and rights provided by ICANN to different countries could be interfered with by the laws and courts of the country of incorporation, which are in a position to judge and enforce judgments against ICANN, because ICANN is a private law entity based in that country and is subject to the prescriptive and enforcement jurisdiction of the territorial State. This is contrary, in particular, to paragraph 63 of the Tunis Agenda: "Countries should not be involved in decisions regarding another country's country-code Top-Level Domain (ccTLD). Their legitimate interests, as expressed and defined by each country, in diverse ways, regarding decisions affecting their ccTLDs, need to be respected, upheld and addressed via a flexible and improved framework and mechanisms." It is to be noted that while paragraph 63 may not state that States have sovereignty over ccTLDs, it does establish that States should not interfere with ccTLDs. Further, an obligation on States not to interfere with certain matters, as ccTLDs, need not be based on the principle of sovereignty to exist, nor does it suppose that the matter is one subject to the sovereignty of States. For States can simply agree to limit their ability to interfere with ccTLDs delegated to other countries, and this is the principle embodied in Paragraph 63 of the Tunis Agenda.
Thiago Jardim
26 JulyUS in rem jurisdiction is closely associated with ICANN's place of incorporation. The Subgroup is expressly mandated to examine the consequences of ICANN's jurisdiction of incorporation.
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Jurisdiction over ICANN's activities that comply with GAC advice or are otherwise based on powers recognised onto Governmental authorities according to ICANN BylawsThe courts of ICANN's place of incorporation are in a unique position to both exercise jurisdiction and enforce judgments (i.e. jurisdiction to prescribe and to enforce) over disputes in respect of the management of domain names opposing ICANN to some allegedly aggrieved party (for example, a dispute over ICANN's rejection of an application for new gTLDs), based on the "localisation" of the "act complained of" and the "act to be enforced" (i.e. all relating to the management of the root zone by ICANN, which has been said to take place in the territory of the country of incorporation and is subject to the territorial jurisdiction of that country). These disputes, however, may relate to ICANN's activities that have been the subject of GAC advice or are otherwise based on powers recognised onto Governments according to ICANN's laws (for example, the disputed act may have been prompted by ICANN's decision to follow GAC advice). Activities that have been the subject of GAC advice or of Governmental authority as recognized under ICANN's laws involve public policy issues that are for Governments to act upon on an equal footing. Their settlement should be through agreed dispute settlement mechanisms according to agreed rules, and they should not be subject to the courts of any country nor, for that matter, to the courts of the country of incorporation. Independent accountability mechanisms for review of ICANN's actions will remain in place, and there shall be provision for arbitration in substitution for local courts.
Thiago Jardim
26 JulyThe consequences identified flow from ICANN's place of incorporation, and the Subgroup is mandated to examine them.ICANN shall establish a compulsory dispute settlement mechanism, or commit to have recourse to international arbitration, for disputes relating to ICANN's acitivities that have been the subject of GAC advice or are otherwise subject to Governmental authority as recognized under ICANN's laws. Once a compulsory dispute settlement mechanism has been agreed for such disputes, ICANN shall seek jurisdictional immunities from the local courts in their respect. In addition, ICANN should include in its agreements an exclusive choice of forum clause, whereby disputes relating to ICANN's activities that have been the subject of GAC advice or that are otherwise subject to Governmental authority as recognized under ICANN's laws shall be settled exclusively through recourse to arbitration. With respect to arbitration in such cases, ICANN shall commit to exercise its party's right to appoint arbitrators in consultation with the GAC or the Governments concerned. Dispute as to whether the GAC or Governments are entitled to exercise powers recognized under ICANN's laws in respect to a given subject, shall be settled through the agreed and compulsory dispute settlement mechanism referred to above, and it should involve the interested parties and the GAC or the Governments concerned.
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US's unilateral jursidcition over ICANNVarious branches and agencies of USA- from judicial and legislative to executive, including its many regulatory agencies - have exclusive direct legal remit and power
over ICANN, as a US NPO, with respect to practically every aspect that can conceivably be affected by state power. Such power gets exercised at any time in pursuance of US law and policies, with the primary purpose to uphold US public interest and constitution. Many examples of such powers and their possible use have been given in various public submissions to this group, including this one , and also this. Since ICANN is supposed to make policies and implement them with
regard to the global DNS in the global public interest and not just US public interest, such unilateral availability and use of legal state power with one country, the US, over ICANN is untenable, and goes against basic principles of democracy.

Parminder Jeet Singh16th Aughttp://www.itu.int/net/wsis/docs2/tunis/off/6rev1.html

https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire

https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=/64066898/64948025/ICANN_jurisdiction_questionaire_-_JNC_response-0001.pdf

https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf
This is the original jursidiction question that the global community had grapled with, whatever may be the views of different parties about it. It was also a key issue mentioned in the Tunis Agenda - about equal role of all governments in global IG. This is also the very meaning of what is jursidiction.
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Non-interference of international actors in ICANN’s core activities The core functions of ICANN should not be only decided by the multi-stakeholder community, covering legislation, administration and dispute settlement. States (and International Organisations) should refrain from exercising its concurrent jurisdiction, respecting ICANN's special role and governance model. Therefore, States should exclude ICANN from its sanction regimes but also recognise outcomes of the ICANN multi-stakeholder process within its remit as res judicata, also before its courts. As quick and clear solutions are not easily at hand (e.g. unilateral acceptance of immunity by States or a treaty), problems of interference of States should be settled by negotiations or judicial decisions, depending on the relevant jurisdiction (e.g. OFAC). This solution is cumbersome but may result in sufficient immunity of ICANN, being in line of present international policy of restricting immunities for international entities. Argumentation could be diverse, e.g. granting partial immunity for ICANN's special role or no interference in third party rights. Administrations and courts must accept that only the multi-stakeholder model is the appropriate forum for such questions.Erich Schweighofer23rd Aug
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Positive effect of California not-for-profit incorporation and headquarters location on ICANN accountability mechanisms and operationsWork Stream 2’s Jurisdiction Subgroup has discussed of a wide range of issues (some within the remit of the Subgroup, and others outside), and a number of subgroup members have brought forward scenarios in which jurisdiction(s) may affect ICANN, both positively and negatively. This discussion has been fruitful not only in exploring edge use cases, but more importantly in addressing whether and how the existing legal status of ICANN as a California nonprofit public benefit corporation assists ICANN in operating in an accountable manner. The mechanisms developed in Work Stream 1 are based on ICANN’s status as nonprofit public benefit corporation incorporated in California and subject to US and California state laws. These mechanisms take advantage of specific features of California law, such as the Sole Designator concept. Work Stream 1 also recognized that a key existing accountability mechanism was the fact that ICANN is subject to U.S. federal and laws and state and federal court jurisdiction. Furthermore, ICANN is set up as and operates in the manner of a California non-profit and has done so for nearly 20 years. In the absence of NTIA’s stewardship role over the management of the DNS, maintaining these new and existing accountability mechanisms, and ICANN’s stability, is of paramount importance. Changing ICANN’s jurisdiction would undermine these new and existing accountability mechanisms, the ability of ICANN to operate in an accountable manner, and ultimately ICANN’s stability. Even the ongoing debate over ICANN’s headquarters location and place of incorporation has the effect of bringing ICANN’s accountability mechanisms into question. At the very least, this debate has the effect of using up significant multistakeholder resources better applied to refining the work of Work Stream and ICANN’s overall accountability.Brian Scarpelli8/27/2017It is within the remit of Work Stream 2’s Jurisdiction Subgroup to build on Work Stream 1, to consider the effect of ICANN’s current jurisdictional set-up (in particular, California not-for-profit law) on ICANN operation and accountability mechanisms and to find ways to enhance ICANN’s accountability to the multistakeholder community.I propose that the Jurisdiction Subgroup should explicitly affirm in its recommendations that:
•ICANN’s current jurisdiction (i.e., California as the state of incorporation and headquarters location) is a critical and integral part of ICANN’s system of accountability and its operations.
•Subjecting ICANN to the laws of and jurisdiction of courts in the United States and elsewhere (including but not limited those jurisdictions where ICANN has operations) are fundamental and very important accountability mechanisms, which allow third parties to hold ICANN accountable and ensure that ICANN abides by the rule of law.
•The accountability mechanisms of Work Stream 1 use and depend on maintaining ICANN as a corporation headquartered and incorporated in California.
•Therefore, modifications to the core jurisdictional concepts of ICANN would be detrimental to ICANN’s accountability. In particular, the CCWG’s work in Work Stream requires Work Stream 2 to maintain the current jurisdictional concepts so that the new mechanisms can be fully implemented and operate unhindered for a substantial period of time. As such, Work Stream 2 should confirm and ratify that the current jurisdictional make-up of ICANN is a fundamental part of ICANN’s accountability mechanisms.
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