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

Kavouss Arasteh kavouss.arasteh at gmail.com
Sat Mar 7 02:10:01 UTC 2015


Dear All,
Thank you all foryour valuable contribution.
The notion of having similar law firm for both CCWG and CWG is a good one
since several topics are commom in both group in a near similar manner but
not iodentical
The identification of being a link between accountability and jurisdiction
seems appropriate . Identification of mechanisms that would eventually be
implemented under certain jurisdictions  is also seems to be a positive
step - It is not clear what it dies mean " *we would need to think about
alternatives. Respect the jurisdiction concern"*



2015-03-07 2:30 GMT+01:00 Jordan Carter <jordan at internetnz.net.nz>:

> 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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