[CCWG-ACCT] Regarding ICANN's adherence to "international law"

[Arun Sukumar]

Bruce, a few observations on your first post:

1. Its interesting to note the international instruments the gTLD handbook
highlights as 'relevant' mostly involve state parties. Given the absence of
specific remedies to the community, the purpose of citing ICANN's adherence
to them is unclear. Every corporation, transnational or not, is expected to
comply with these treaties as long as their host state is a signatory (the
US is not a party to the Child Rights Convention btw)

2. The CCWG should distil principles from general instruments, rather than
using broad diplomatic jargon like "relevant" international laws. If there
are specific international laws that apply to transnational corporations
which may prove useful to apply in ICANN's case, those too should be
addressed. Happy to contribute in this exercise.

On Mon, Mar 16, 2015 at 5:10 AM, Phil Corwin <psc at vlaw-dc.com> wrote:

>  That’s exactly right, David, and what we just saw in the IRP brought by
> Booking.com over the finding that .Hotels and .Hoteis were in the same new
> gTLD contention set
>
>
>
> The available accountability mechanisms were restricted to reviewing
> whether proper procedure had been observed, but could not reach the
> admittedly questionable merits of the original decision that found them
> confusingly similar at the gTLD level.
>
>
>
> So when should the merits of a Board decision be susceptible to
> modification or reversal, who has standing to bring such a challenge, and
> what should be the standard of review? Important questions, and not easy to
> answer.
>
>
>
> *Philip S. Corwin, Founding Principal*
>
> *Virtualaw LLC*
>
> *1155 F Street, NW*
>
> *Suite 1050*
>
> *Washington, DC 20004*
>
> *202-559-8597/Direct*
>
> *202-559-8750/Fax*
>
> *202-255-6172/cell*
>
>
>
> *Twitter: @VlawDC*
>
>
>
> *"Luck is the residue of design" -- Branch Rickey*
>
>
>
> *From:* accountability-cross-community-bounces at icann.org [mailto:
> accountability-cross-community-bounces at icann.org] *On Behalf Of *David
> Post
> *Sent:* Sunday, March 15, 2015 9:26 AM
> *To:* Accountability Cross Community
> *Subject:* Re: [CCWG-ACCT] Regarding ICANN's adherence to "international
> law"
>
>
>
> At 08:16 PM 3/14/2015, Bruce Tonkin wrote:
>
>  Under its Articles of Incorporation ICANN already operates “for the
> benefit of the Internet community as a whole, carrying out its activities
> in conformity with relevant principles of international law and applicable
> international conventions and local law.”   See:
> https://www.icann.org/en/about/governance/articles
>
> The Independent Review Process allows parties to challenge Board decisions
> that are inconsistent with the Articles of Incorporation or Bylaws.
>
> [SNIP]
>
>
> Just by way of clarification, while it's true that the IRP allows parties
> "to challenge Board decisions that are inconsistent with the Articles of
> Incorporation or Bylaws," the IRP panel does not have the power to actually
> decide the question of whether or not a Board decision WAS inconsistent
> with the Articles or Bylaws.  See Bylaws, Art IV sec 3(4):
>
> "The IRP Panel must apply a defined standard of review to the IRP request,
> focusing on:
>
>     1. did the Board act without conflict of interest in taking its
>       decision?;
>       2. did the Board exercise due diligence and care in having a
>       reasonable amount of facts in front of them?; and
>       3. did the Board members exercise independent judgment in taking
>       the decision, believed to be in the best interests of the company?"
>
> That's a much narrower scope of inquiry than whether the Board acted
> outside the ByLaws, for example.
>
> David
>
> *******************************
> David G Post - Senior Fellow, Open Technology Institute/New America
> Foundation
> blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post
> book (Jefferson's Moose)  http://tinyurl.com/c327w2n
> <http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0>
> music http://tinyurl.com/davidpostmusic publications etc.  http://www.davidpost.com
>
> *******************************
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-- 
-
@arunmsukumar <http://www.twitter.com/arunmsukumar>
Senior Fellow, Centre for Communication Governance <http://www.ccgdelhi.org>
National Law University, New Delhi
Ph: +91-9871943272
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