2017-02-10

ICANN Jurisdiction, CCWG-Accountability WS2 Questionnaire

ICANN Jurisdiction Questionnaire
ICANN Jurisdiction Questionnaire
* For this Questionnaire [above], “ICANN’s jurisdiction” refers to (a) ICANN being subject to U.S. and California law as a result of its incorporation and location in California, (b) ICANN being subject to the laws of any other country as a result of its location within or contacts with that country, or (c) any “choice of law” or venue provisions in agreements with ICANN.

For translations of the questionnaire:
Language:  Word Doc /  PDF
English:  EN  /  EN
Arabic:  AR /  AR
Spanish:  ES  /  ES
French:  FR  /  FR
Russian:  RU /  RU
Chinese:  ZH  / ZH

ICANN's information and explanation:

CCWG-Accountability Work Stream 2 Issues Jurisdiction Questionnaire | ICANN.org"The newly-adopted ICANN Bylaws created several Work Stream 2 accountability subgroups. One of these subgroups, the Jurisdiction Subgroup, is addressing questions related to ICANN's jurisdiction, including how choice of jurisdiction and applicable laws for dispute settlement impact ICANN's accountability and the actual operation of policies. The Jurisdiction Subgroup has put out a questionnaire seeking responses to several jurisdiction-related questions. The Subgroup is asking you to consider and respond to these questions with concrete, factual submissions. The questionnaire can be found at https://community.icann.org/x/UpXRAw and is available in each of the 6 languages supported by ICANN. You may respond to the questionnaire in any of these languages. Responses must be transmitted via email to ccwg-acctws2.jurisdiction.questionnaire @icann.org . Responses must clearly identify the individual responding and, where applicable, the organization for which the response is being submitted. Responses may be submitted at any point during the response period. The subgroup will accept responses until 23:59 UTC 17 April 2017." (emphasis added)

ICANN organizational provisions concerning "jurisdiction":

ICANN Articles of Incorporation as revised (emphasis added):
1. The name of this corporation is Internet Corporation for Assigned Names and Numbers (the "Corporation").
2. The name of the Corporation's initial agent for service of process in the State of California, United States of America is C T Corporation System.
3. This Corporation is a nonprofit public benefit corporation and is not organized for the private gain of any person. It is organized under the California Nonprofit Public Benefit Corporation Law for charitable and public purposes. The Corporation is organized, and will be operated, exclusively for charitable, educational, and scientific purposes within the meaning of § 501 (c)(3) of the Internal Revenue Code of 1986, as amended (the "Code"), or the corresponding provision of any future United States tax code. Any reference in these Articles to the Code shall include the corresponding provisions of any further United States tax code ....


ICANN Bylaws as revised (emphasis added):
ARTICLE 4: Section 4.7. COMMUNITY MEDIATION: ... (e) The mediator shall conduct the mediation in accordance with these Bylaws, the laws of California and the rules and procedures of a well-respected international dispute resolution provider, which may be the IRP Provider. The arbitration will be conducted in the English language consistent with the provisions relevant for mediation under the IRP Rules of Procedure and will occur in Los Angeles County, California, unless another location is mutually-agreed between the Mediation Administration and Board Mediation Representatives.

ARTICLE 6 EMPOWERED COMMUNITY
Section 6.1. COMPOSITION AND ORGANIZATION OF THE EMPOWERED COMMUNITY
(a) The Empowered Community ("EC") shall be a nonprofit association formed under the laws of the State of California ....

ARTICLE 16 POST-TRANSITION IANA ENTITY
Section 16.1. DESCRIPTION
ICANN shall maintain as a separate legal entity a California nonprofit public benefit corporation (["PTI"]) for the purpose of providing IANA services ....
Section 16.2. PTI Governance
(a) ICANN, in its capacity as the sole Member of PTI, shall elect the directors of PTI in accordance with the articles of incorporation and bylaws of PTI and have all other powers of a sole Member under the CCC except as otherwise provided in these Bylaws.
(b) No amendment or modification of the articles of incorporation of PTI shall be effective unless approved by the EC (pursuant to the procedures applicable to Articles Amendments described in Section 25.2, as if such Article Amendment referenced therein refers to an amendment of PTI's articles of incorporation).
(c) ICANN shall not amend or modify the bylaws of PTI in a manner that would effect any of the matters set forth in clauses (i) through (xiv) below (a "PTI Bylaw Amendment") if such PTI Bylaw Amendment has been rejected by the EC pursuant to the procedures described in Section 16.2(e):
(i) any change to the corporate form of PTI to an entity that is not a California nonprofit public benefit corporation organized under the CCC or any successor statute ....

ARTICLE 24 OFFICES AND SEAL
Section 24.1. OFFICES
The principal office for the transaction of the business of ICANN shall be in the County of Los Angeles, State of California, United States of America. ICANN may also have an additional office or offices within or outside the United States of America as it may from time to time establish ....

ARTICLE 27 TRANSITION ARTICLE
Section 27.1. WORK STREAM 2
(a) The Cross-Community Working Group on Enhancing ICANN Accountability ("CCWG-Accountability") was established pursuant to a charter dated 3 November 2014 ("CCWG-Accountability Charter"). The CCWG-Accountability Charter was subsequently adopted by the GNSO, ALAC, ccNSO, GAC, ASO and SSAC ("CCWG Chartering Organizations"). The CCWG-Accountability Charter as in effect on 3 November 2014 shall remain in effect throughout Work Stream 2 (as defined therein).
(b) The CCWG-Accountability recommended in its Supplemental Final Proposal on Work Stream 1 Recommendations to the Board, dated 23 February 2016 ("CCWG-Accountability Final Report") that the below matters be reviewed and developed following the adoption date of these Bylaws ("Work Stream 2 Matters"), in each case, to the extent set forth in the CCWG-Accountability Final Report:
....
(vi) Addressing jurisdiction-related questions, including how choice of jurisdiction and applicable laws for dispute settlement impact ICANN's accountability; ...

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