[CCWG-ACCT] Resolution of Mission Language related to regulation and contract

[Gregory, Holly]

I fully agree with Becky's learned counsel.



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________________________________
From: Burr, Becky
Sent: Monday, December 14, 2015 04:11:20 PM
To: Kavouss Arasteh; Rosemary E. Fei
Cc: ICANN-Adler; Thomas Rickert; Accountability Cross Community; ACCT-Staff (acct-staff at icann.org); Sidley ICANN CCWG
Subject: Re: [CCWG-ACCT] Resolution of Mission Language related to regulation and contract

I agree with Kavouss that we are possibly embarking on a task with no sensible output here.  We have said clearly that by grandfathering we mean that parties intended (and intend) to be bound to the terms of the registry agreement, including PICs.  (It probably should mean that applicants intend to be bound by the terms of their application as well.) My prediction is that the lawyers will look at PICs – the many hundreds that there are – and say “Whether or not these PICs are within ICANN’s Mission depends – as is the case today - in substantial part, on the manner in which the registry operator implements the specific commitment and the manner in which ICANN enforces them.”

As a lawyer, I would be very reluctant to make pronouncements about whether or not a specific provision will be enforceable in every conceivable case.  Rather, I would want to first know the specific facts that give rise to a dispute about its enforceability, and even then would be well-advised to remind my audience that my opinion is limited to the specific factual situation under consideration.



J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer
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From: Kavouss Arasteh <kavouss.arasteh at gmail.com<mailto:kavouss.arasteh at gmail.com>>
Date: Saturday, December 12, 2015 at 3:23 AM
To: "Rosemary E. Fei" <rfei at adlercolvin.com<mailto:rfei at adlercolvin.com>>
Cc: ICANN-Adler <ICANN at adlercolvin.com<mailto:ICANN at adlercolvin.com>>, Thomas Rickert <thomas at rickert.net<mailto:thomas at rickert.net>>, Accountability Community <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>, "ACCT-Staff (acct-staff at icann.org<mailto:acct-staff at icann.org>)" <acct-staff at icann.org<mailto:acct-staff at icann.org>>, Sidley ICANN CCWG <sidleyicannccwg at sidley.com<mailto:sidleyicannccwg at sidley.com>>
Subject: Re: [CCWG-ACCT] Resolution of Mission Language related to regulation and contract

Dear Rosemary,
Dear Leon
Dear All,
Before certifying question to be
studied , one need to verify the
practicality and workability of the
study.
Issue 1
How many PICs have been
received? Perhaps some 500
Issue 2
How many were expected
to have been received? Perhaps
About 1930, equal to the No.
 of strings gTLDs
Issue 3
How many supplementary PICs
Were submitted by applicants? No
Real statistics
Issue 4
Are there any typical or some
typical PIC or PICs available?
Issue 5
What the meaning of term
"typical PIC "in legal language?
Issue 6
Does a typical PIC, if any, could
cover the objectives of PIC in
general legal terms?
I think we are hijacked by a
question raised which would be
Impractical to study and impractical
 to infer ant thing from that.
Now, should we not DROP the
Question?
Regards
Kavouss






Sent from my iPhone

On 12 Dec 2015, at 00:50, Rosemary E. Fei <rfei at adlercolvin.com<mailto:rfei at adlercolvin.com>> wrote:

How large is the universe of existing PICs?  Perhaps someone on the CCWG could provide us with a representative sampling of existing PICs, and we can then review them and draw our own conclusions about what’s a “typical” provision?

Rosemary

Rosemary E. Fei
Adler & Colvin
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From: Malcolm Hutty [mailto:malcolm at linx.net]
Sent: Friday, December 11, 2015 3:34 PM
To: Holly Gregory
Cc: León Felipe Sánchez Ambía; Sidley ICANN CCWG; ICANN-Adler; ACCT-Staff (acct-staff at icann.org<mailto:acct-staff at icann.org>); Thomas Rickert; Accountability Cross Community
Subject: Re: [CCWG-ACCT] Resolution of Mission Language related to regulation and contract



On 11 Dec 2015, at 22:15, Gregory, Holly <holly.gregory at sidley.com<mailto:holly.gregory at sidley.com>> wrote:
We will need information on the kind of provisions that PICs have typically included.  Could ICANN legal provide that information to us?

And therein lies the rub.

I think CCWG members are likely to have differing views as to what should be considered "typical" and what aberrant. Nor would I consider ICANN legal a neutral advisor to you on this, if it were making any kind of qualitative judgement.
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