{"id":28606,"date":"2016-06-24T14:30:54","date_gmt":"2016-06-24T12:30:54","guid":{"rendered":"https:\/\/www.hiig.de\/en\/?p=28606"},"modified":"2023-03-28T17:25:20","modified_gmt":"2023-03-28T15:25:20","slug":"icann-and-the-jurisdiction-issue","status":"publish","type":"post","link":"https:\/\/www.hiig.de\/en\/icann-and-the-jurisdiction-issue\/","title":{"rendered":"ICANN and the Jurisdiction Issue"},"content":{"rendered":"
Jurisdictional issues pertaining main Internet actors have always been hotly debated.\u00a0One of the most recent debates which is going to start again soon relates to the\u00a0Internet Corporation for Assigned Names and Numbers (ICANN). ICANN is in\u00a0charge of policymaking for administering the domain names. It has a multistakeholder\u00a0governance structure, which is open to anyone interested to contribute to the policies\u00a0of ICANN. This blogpost provides some background regarding the jurisdictional\u00a0issues and shed lights on some of the stated opinions of the stakeholdergroups. It is an\u00a0attempt to brief those interested, to participate in the process.<\/p>\n
The debate over ICANN’s jurisdiction has been ongoing almost since the organization\u00a0was created in 1998. The discussion gained renewed and strong impetuous with the\u00a0creation of the Cross Community Working Group Stewardship (CWG Stewardship),\u00a0and Cross Community Working Group Accountability (CCWG Accountability) in\u00a02014. This report will briefly look at the relevant discussions of both groups.<\/p>\n
CCWG Accountability and Jurisdiction<\/h3>\n\n
In-depth discussion and resolution of jurisdiction and ICANN’s corporate\u00a0location has been delegated to Work Stream 2. This work was expected to\u00a0start in October 2015, however it will now begin in earnest soon after initial\u00a0discussions at ICANN56 Helsinki, 26-30 June 2016.<\/li>\n
The importance of addressing jurisdiction was stressed by several\u00a0contributors (India, Germany, France, Spain, Danish Business Authority,\u00a0Brazil) during the CCWG Accountability’s first public comments. Their\u00a0comments are present in appendix 1.<\/li>\n
The concerns noted about ICANN\u2019s jurisdiction were that it might have\u00a0influence on \u201cits actual operation of policies\u201d and the CCWG\u00a0Accountabilities’ anticipated \u201caccountability mechanisms\u201d.1<\/sup><\/li>\n
CCWG Accountability identified several desirable features for an ideal\u00a0jurisdiction, these included.\n
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A legal framework able to accommodate the multistakeholder\u00a0model<\/li>\n
A strong corporate governance model that can enhance\u00a0accountability<\/li>\n
Jurisdictions that when physical presence is required should\u00a0have a strong legal framework of labor laws, visas, and security<\/li>\n
The laws governing contracts for registrars and registries\u00a0should include a stable legal regime, affordable legal action,\u00a0level playing field for global actors (in terms of ease of\u00a0understanding the national legislation)<\/li>\n
The ability to sue and be sued in court (debatable)<\/li>\n
Existing robust competition law and anti-trust law<\/li>\n<\/ul>\n<\/li>\n
A submission by Richard Hill to the CCWG Accountability first public\u00a0comment process sparked a brief discussion and a legal opinion on the\u00a0suitability of the jurisdiction of Switzerland.<\/li>\n
Legal opinion considered two forms of incorporation in Switzerland: NGO\u00a0and INGO. Nevertheless the discussion was not pursued further. More\u00a0details provided in the document.2<\/sup><\/li>\n
One important aspect introduced by Lee Bygrave about Swiss jurisdiction\u00a0was that under the Swiss law, an association (which Hill put forward as a\u00a0solution) cannot easily change its bylaws and needs the majority vote of its\u00a0members. And in order to make substantial changes to its operations an\u00a0association has to call for an assembly of all its registered members.<\/li>\n<\/ol>\n
CWG Stewardship and Jurisdiction<\/h3>\n
Similar to CCWG Accountability, comments on jurisdictional issues in the CWG\u00a0Stewardship proposal, while emphasizing the importance of jurisdiction, have so\u00a0far lacked substantive discussion, other than to express concerns about US as the\u00a0jurisdiction of ICANN. It seems that the issue of jurisdiction has generally been\u00a0delegated to Work Stream 2 of CCWG Accountability.<\/p>\n
Nonetheless, there have been references to the jurisdiction of the so-called\u00a0Contract Co (later changed to Post Transition IANA (PTI)), which will be\u00a0established to carry out the technical functions of IANA. The community (mostly)\u00a0considered the separation of technical and policymaking functions as important,\u00a0so the proposal sought comments on the establishment of \u201cContract Co\u201d.<\/p>\n
These comments included references to jurisdiction, however they did not become\u00a0a substantive part of the discussion. Briefly and based on other sources, the views\u00a0expressed were as follows:<\/p>\n
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Registrars commented that the US would be "ideal", Canada or the UK\u00a0“acceptable alternatives”, and Switzerland “problematic”.3<\/sup><\/li>\n
China considered the jurisdiction of Contract Co as important.<\/li>\n
An Indian Think Tank referred to the jurisdiction of Contract Co as an\u00a0important issue.<\/li>\n
The government of Brazil also mentioned jurisdiction.4<\/sup><\/li>\n
Concern about raising the standard for changing ICANN’s ordinary\u00a0bylaws, which would introduce a higher standard to change any article\u00a0about current location (e.g. Article 18, and potentially AoC 8b)<\/li>\n
Concern about including an article in the bylaws about ICANN HQ\u00a0location as a fundamental bylaw, i.e. creating a de-facto lock-in to\u00a0California.<\/li>\n<\/ul>\n
Conclusion<\/h3>\n
The issue of jurisdiction has not been fully addressed yet. These issues will be\u00a0brought up in CCWG Accountability Work Stream 2. We can expect jurisdiction\u00a0to be a hotly debated topic and it is worth paying attention to. The Work Stream 2\u00a0discussions are open to anyone who wants to engage with ICANN and\u00a0policymaking. For more information on how to get engaged, you can contact me.<\/p>\n
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1<\/sup> Comments of the Brazilian Government on the “Cross Community Working Group (CCWG) \u00a0ccountability\u00a0Initial Draft Proposal for Public Comment”, Para 25, the Brazilian Government continued that \u201cBrazil is willing to\u00a0collaborate with other members and participants of the CCWG-Accountability in order to perform a\u00a0comprehensive and impartial assessment of different jurisdictional options for ICANN.\u201d<\/p>\n
2<\/sup> Legal Sub-team (\u201cLegal Sub-team\u201d) of the Cross-Community Working Group on Enhancing ICANN\u00a0Accountability (\u201cCCWG\u201d) FROM: Sidley Austin LLP RE: Preliminary Response to Legal Sub-team Questions\u00a0Identified in Memorandum Ref CCWG\/SA\/001 Initial Discussion Draft 1 DATE: March 27, 2015<\/p>\n