[CCWG-ACCT] Notes-Action Items for CCWG Accountability LEGAL SubTeam Meeting 05 March

[Jordan Carter]

Dear legal sub-team colleagues,

I wonder whether we might need to consider doing this in stages?

The document as it is steps out a decent set of questions that have been
raised by the community, but there is a limit to what firms can do in the
time before we have to consult on our proposals.

As such I would be relaxed if we sought first responses on a basic question
about whether we can have mechanisms that constrain the ICANN Board, and
then if a second set of legal advice is sought after that?

Happy to hear how this is going to work at our call next week.

bests
Jordan

On 7 March 2015 at 07:19, Brenda Brewer <brenda.brewer at icann.org> wrote:

> Dear all,
>
>
>
> The Action Items and Notes for the *CCWG Accountability LEGAL SubTeam*
> call on 05 March will be available here:
> https://community.icann.org/pages/viewpage.action?pageId=52891283
> *Action Items*
>
> *ACTION ITEM: Include Robin in conversations with law firms.*
>
> *ACTION ITEM: Provide time slots to Leon to hold call with law firm on
> Monday, 9 March.*
>
> *ACTION ITEM: Robin to refine document before call with law firm for
> discussion. *
> *Notes*
>
> *Update on selection process of Law Firm:*
>
> - Several calls took place with shortlisted candidates.
>
> - 8 law firms at the beginning of process.
>
> - 3 shortlisted firms.
>
>
>
> *Feedback:*
>
> - These decisions should be made by legal team. Who decides which law
> firms get shortlisted?
>
> --> CCWG jumped in to catch up with CWG.
>
> ---> It is the CWG process - Leon liaised for the CCWG legal committee -
> process has been ongoing for few weeks. If CCWG likes firm the CWG hires,
> CCWG could use them. Could hire a different firm if not satisfactory but
> this would have impact on costs.
>
>
>
> *//Recording was paused due to identification of firms that we do not yet
> have authority to release more broadly at this time//*
>
>
>
> - Firm the CWG hires is not necessarily going to be the one the CCWG will
> hire.
>
> ACTION ITEM: Include Robin in conversations with law firms.
>
> ACTION ITEM: Provide time slots to Leon to hold call with law firm on
> Monday, 9 March.
>
> - While we have been discussing terms of engagement with candidate, we
> have not engaged candidate. There have been discussions on whether it is
> appropriate to handle both CWG and CCWG. Law firms were asked if saw
> conflict: none of the firms detected issue-based conflicts and confirmed
> they would have resources to support both projects. We did not presuppose
> CCWG work, did not share documents, but ensured availability of resources
> and that there is no CoI.
>
>
>
> //Recording was paused due to identification of firms that we do not yet
> have authority to release more broadly at this time//
>
>
>
> *Review of legal scoping document*
>
> Suggestions that this document should be shortened.
>
>
>
> *Feedback:*
>
> - We should not take section on concerns and proposals out of document.
> Context is needed. Pushback from community if we don't include their
> feedback.
>
> --> Let lawyers expand on initial proposal.
>
> --> Clarify that these are not the only items we would consider.
>
> - The document is not too long. Do not waste too much time on editing the
> document. It is straightforward. Put jurisdiction on hold. Immunity is
> contrary to accountability.
>
> - Leave all questions that have been proposed in the document - they
> reflect genuine concerns from the stakeholders. Jurisdiction is a real
> concern. There is a link between accountability and jurisdiction. We are
> debating mechanisms that would eventually be implemented under certain
> jurisdictions - we would need to think about alternatives. Respect the
> jurisdiction concern.
>
> --> This raises question of: is this WS1 or WS2? To date, it is considered
> WS2 due to the time this would require to implement and in light of
> declaration from Fadi at hearing. If WS1, this might derail the whole
> process.
>
> --> Lot of pressure on group - we need to ask the question of jurisdiction.
>
> --> It is important to get feedback on jurisdiction and to ask questions.
> Some of the answers will show that US California jurisdictions are very
> strong for accountability and rule of law and offer increasing amount of
> flexibility for different methods of accountability. But if available in
> other jurisdictions, it should be known. We may return to jurisdiction
> discussions in CWG as well.
>
> --> Discussion about jurisdictional concerns regarding review panels is
> certainly an issue. Suggestion that Advisors' guidance be sought.
>
>
>
> *Conclusion*:
>
> - Keep document structure as it is.
>
> - Nothing in the document as it is will be taken out.
>
>
>
> - Panel of experts could be extremely helpful and should be mentioned to
> law firms - it is a resource that could be used.
>
> - Lee Bygrave's guidance could be useful - his participation in Istanbul
> meeting is tentative.
>
>
>
> *Proposed Goals*
>
> Proposed goals: How can we protect ICANN from being prone to capture? How
> can we protect ICANN from antitrust law in US?
>
>
>
> *Feedback*
>
> - Antitrust review of potential mechanism would be desirable at some point
> in process.
>
> - Concerns about legal subteam coming up with new goals for the CCWG: it
> is not appropriate.
>
> --> We should address mechanisms to prevent the whole system to be prone
> to capture. Any change in jurisdiction might affect the whole organization
> and its stakeholders regarding effect of antitrust law.
>
> - Antitrust is not a goal but a byproduct. Capture is a concern across
> other communities.
>
> We are waiting to receive WP1, WP2, ST-PT conclusions.
>
> ACTION ITEM: Robin to refine document before call with law firm for
> discussion.
>
>
>
> END
>
>
>
> Kind regards,
>
> Brenda
>
>
>
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>
>


-- 
Jordan Carter

Chief Executive
*InternetNZ*

04 495 2118 (office) | +64 21 442 649 (mob)
jordan at internetnz.net.nz
Skype: jordancarter

*A better world through a better Internet *
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