Purpose: This public comment proceeding seeks community input on the Cross-Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability), Work Stream 2 (WS2) draft recommendations on jurisdiction. These draft recommendations were developed by the CCWG-Accountability, WS2 as required by Annex 12 of the final report of the CCWG-Accountability, Work Stream 1 (WS1).
Current Status: The CCWG-Accountability, WS2 reviewed these draft recommendations at its 27 October 2017 plenary meeting and approved their publication to gather public comment. These draft recommendations contain a dissenting opinion by the Government of Brazil which is supported by several participants.
Next Steps: Following the public comment proceeding, the inputs will be analyzed by the CCWG-Accountability, WS2 which will consider amending the recommendations in light of the comments received and will publish a report on the results of the public consultation. The CCWG-Accountability, WS2 must complete its work by June 2018. If significant changes are required as a result of the public consultation, the CCWG-Accountability, WS2 may decide to not include these recommendations in its final report. If there are no significant changes required, the CCWG-Accountability, WS2 will include these recommendations in its final report and forward it to its chartering organizations for approval and then to the ICANN Board for consideration and adoption.
Section I: Description and Explanation
The CCWG-Accountability, WS2 project on jurisdiction obtains its mandate and scope from the CCWG-Accountability, WS1 final report, which included Recommendation 12:
As part of Work Stream 2, the CCWG-Accountability proposes that further enhancements be made to a number of designated mechanisms:
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.
Annex 12, which details Recommendation 12, also included the following recommendations with regard to jurisdiction:
At this point in the CCWG-Accountability's work, the main issues that need within Work Stream 2 relate to the influence that ICANN's existing jurisdiction may have on the actual operation of policies and accountability mechanisms. This refers primarily to the process for the settlement of disputes within ICANN, involving the choice of jurisdiction and of the applicable laws, but not necessarily the location where ICANN is incorporated:
Consideration of jurisdiction in Work Stream 2 will focus on the settlement of dispute jurisdiction issues and include:
- Confirming and assessing the gap analysis, clarifying all concerns regarding the multi-layer jurisdiction issue.
- Identifying potential alternatives and benchmarking their ability to match all CCWG-Accountability requirements using the current framework.
- Consider potential Work Stream 2 recommendations based on the conclusions of this analysis.
A specific subgroup of the CCWG-Accountability will be formed to undertake this work.
Section II: Background
The jurisdiction subgroup based its work on Annex 12 of the CCWG-Accountability, WS1 final report. This proved somewhat challenging, as there are ambiguities in this text that led to some lack of clarity regarding both the scope and goals of the subgroup.
The subgroup proceeded to:
- Discuss the topics of "confirming and assessing the gap analysis" and of changing ICANN's headquarters or jurisdiction of incorporation.
- Work on refining the multiple layers of jurisdiction.
- Prepare several working documents. These included one exploring the question, "What is the influence of ICANN's existing jurisdiction(s) relating to resolution of disputes (i.e., governing law and venue) on the actual operation of ICANN's policies and accountability mechanisms?"
- Publish a questionnaire to allow the community to submit jurisdiction related issues for consideration by the subgroup.
- Develop a series of jurisdiction-related questions for ICANN Legal which were formally answered.
- Undertake a comprehensive review of the litigations in which ICANN has been a party.
Based on this work the subgroup developed a master list of "proposed issues." From this list, the subgroup prioritized, in the time remaining, the issues relating to Office of Foreign Assets Control (OFAC) sanctions and to the choice of governing law and venue clauses in certain ICANN contracts. After careful consideration of these issues, the subgroup reached consensus on recommendations for each of these.
Note: The report was approved by consensus as defined in the CCWG-Accountability charter and not by full consensus. The Government of Brazil, which did not support approving the report, has prepared a dissenting opinion which is supported by several other participants and can be found in Annex E of the report. In addition to this, Annex F of the report includes a transcription of the discussions held at the CCWG-Accountability, WS2 plenary meeting on 27 October 2017 which focused on jurisdiction issues.