[CCWG-ACCT] Minority statements inclusion in report

Tue Dec 1 22:00:51 UTC 2015

I agree.  I think Bradley's suggestion (adding "on its face") also works.
"... It means that neither a contracting party 
nor anyone else should be able to bring a case 
that the language of such agreements is, on its face, ultra vires. ..."

That would I think clarify that the IRP should 
reject an attempt to argue that ICANN's entering 
into sec. 3.18 was ultra vires; but it preserves 
the ability to challenge ICANN's 
interpretation/enforcement of 3.18 (or other 
provisions) as being outside the Mission.

David

At 04:09 PM 12/1/2015, Burr, Becky wrote:
>I think we should get rid of the words “without 
>context” -  the material affect test should apply in all cases
>
>J. Beckwith Burr
>Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer
>1775 Pennsylvania Avenue NW, Washington D.C. 20006
>Office: +1.202.533.2932  Mobile: +1.202.352.6367 
>/ <http://www.neustar.biz>neustar.biz
>
>From: <Mueller>, Milton L <<mailto:milton at gatech.edu>milton at gatech.edu>
>Date: Tuesday, December 1, 2015 at 3:44 PM
>To: "Silver, Bradley" 
><<mailto:Bradley.Silver at timewarner.com>Bradley.Silver at timewarner.com>, 
>Becky Burr 
><<mailto:becky.burr at neustar.biz>becky.burr at neustar.biz>, 
>David Post <<mailto:david.g.post at gmail.com>david.g.post at gmail.com>
>Cc: Thomas Rickert 
><<mailto:thomas at rickert.net>thomas at rickert.net>, 
>Accountability Community 
><<mailto:accountability-cross-community at icann.org>accountability-cross-community at icann.org>
>Subject: RE: [CCWG-ACCT] Minority statements inclusion in report
>
>Do not support. Becky’s original wording is better.
>
>From: 
><mailto:accountability-cross-community-bounces at icann.org>accountability-cross-community-bounces at icann.org 
>[mailto:accountability-cross-community-bounces at icann.org] 
>On Behalf Of Silver, Bradley
>Sent: Tuesday, December 1, 2015 3:27 PM
>To: Mueller, Milton L; Burr, Becky; David Post
>Cc: Thomas Rickert; Accountability Cross Community
>Subject: Re: [CCWG-ACCT] Minority statements inclusion in report
>
>Suggested tweak –
>
>It means that the parties who entered into 
>existing contracts intended (and intend) to be 
>bound by those agreements.  It means that 
>neither a contracting party nor anyone else 
>should be able to bring a case that any 
>provisions of such agreements on their face, are 
>ultra vires.  It does not, however, modify any 
>contracting party’s right to challenge the other 
>party¹s interpretation of that language. It does 
>not modify the right of any person or entity 
>materially affected (as defined in the Bylaws) 
>by an action or inaction in violation ICANN¹s 
>Bylaws to seek redress through an IRP.  Nor does 
>it modify the scope of ICANN’s Mission.
>
>
>-----Original Message-----
>From: Mueller, Milton L [<mailto:milton at gatech.edu>mailto:milton at gatech.edu]
>Sent: Tuesday, December 01, 2015 3:02 PM
>To: Burr, Becky; Silver, Bradley; David Post
>Cc: Thomas Rickert; Accountability Cross Community
>Subject: RE: [CCWG-ACCT] Minority statements inclusion in report
>
>Acceptable to me, thanks. David? Malcolm?
>--MM
>
> > -----Original Message-----
> > From: Burr, Becky 
> [<mailto:Becky.Burr at neustar.biz>mailto:Becky.Burr at neustar.biz]
> > Sent: Tuesday, December 1, 2015 12:29 PM
> > To: Silver, Bradley; Mueller, Milton L; David Post
> > Cc: Thomas Rickert; Accountability Cross Community
> > Subject: Re: [CCWG-ACCT] Minority statements inclusion in report
> >
> > I have no problem providing additional guidance to the drafters:
> >
> > What does it mean that the language of these agreements are
> > grandfathered?
> >  It means that the parties who entered into existing contracts
> > intended (and
> > intend) to be bound by those agreements.  It means that neither a
> > contracting party or anyone else should be able to bring a free
> > standing case that the language, without context, is ultra vires.  It
> > does not, however, modify any contracting party¹s right to challenge
> > the other party¹s interpretation of that language. It does not modify
> > the right of any party materially affected (as defined in the Bylaws)
> > by an action or inaction in violation ICANN¹s Bylaws to seek redress
> > through an IRP.  Nor does it modify the scope of ICANN¹s Mission.
> >
> >
> >
> > J. Beckwith Burr
> > Neustar, Inc. / Deputy
> > General Counsel & Chief Privacy Officer
> > 1775 Pennsylvania Avenue NW, Washington D.C. 20006
> > Office: +1.202.533.2932  Mobile: +1.202.352.6367 / neustar.biz
> > <<http://www.neustar.biz>http://www.neustar.biz>
> >
> >
> >
> >
> > On 12/1/15, 12:18 PM, "Silver, Bradley"
> > <<mailto:Bradley.Silver at timewarner.com>Bradley.Silver at timewarner.com>
> > wrote:
> >
> > >Milton - who is the "other party" in your suggested amendment below?
> > >
> > >-----Original Message-----
> > >From: Mueller, Milton L 
> [<mailto:milton at gatech.edu>mailto:milton at gatech.edu]
> > >Sent: Tuesday, December 01, 2015 12:13 PM
> > >To: Burr, Becky; David Post; Silver, Bradley
> > >Cc: Thomas Rickert; Accountability Cross Community
> > >Subject: RE: [CCWG-ACCT] Minority statements inclusion in report
> > >
> > >
> > >> -----Original Message-----
> > >> It means that the parties who entered into existing contracts
> > >> intended (and
> > >> intend) to be bound by those agreements.  It means that neither a
> > >> contracting party or anyone else should be able to bring a free
> > >> standing case that the language, without context, is ultra vires.
> > >> It does not, however, modify any contracting party¹s right to
> > >> challenge the other party¹s interpretation of that language.  Nor
> > >> does it modify the scope of ICANN¹s Mission.
> > >
> > >This is reassuring, Becky, but I want it to be clear.
> > >
> > >Are you willing to add to the current report the following language:
> > >
> > >The grandfathering statement, however, cannot be used to modify the
> > scope
> > >of ICANN's mission nor to modify any contracting party¹s right to
> > >challenge the other party¹s interpretation of contractual language if
> > >they think enforcement actions are expanding the scope of ICANN's
> > >mission.
> > >
> > >
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