[CCWG-ACCT] Comparison of independent review processes

Fri Oct 9 18:46:44 UTC 2015

I heartily disagree that counsel to the CCWG – ACCT are not acting in a neutral manner.  In fact, they have been, in my opinion, most careful to be very neutral and are merely reciting what the California statutes say about enforceability of community powers.

The fact that you don’t like their answers does not mean the answers are not objective.  Further,  as we all know, the advice provided depends on the question asked.  For example, if the Board asks Jones Day for a memo on whether binding arbitration is enforceable (and ignores all difficulties in enforcement leading up to the point of binding arbitration), then they will get an opinion that binding arbitration is enforceable, otherwise known as Alternative Dispute Resolution 101 – could well have been drafted by a first year associate.

I would suggest we all refrain from accusing counsel of violating the ethics codes – this is absurd from my point of view given who these firms are.
Anne

[cid:image001.gif at 01D10288.11159550]

Anne E. Aikman-Scalese, Of Counsel

Lewis Roca Rothgerber LLP

One South Church Avenue Suite 700 | Tucson, Arizona 85701-1611

(T) 520.629.4428 | (F) 520.879.4725

AAikman at lrrlaw.com<mailto:AAikman at lrrlaw.com> | www.LRRLaw.com<http://www.lrrlaw.com/>

From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Seun Ojedeji
Sent: Thursday, October 08, 2015 12:44 PM
To: Leon Felipe Sanchez Ambia
Cc: ICANN-Adler; Thomas Rickert; accountability-cross-community at icann.org; ACCT-Staff; Sidley ICANN CCWG
Subject: Re: [CCWG-ACCT] Comparison of independent review processes

Dear Co-Chairs,

Based on the mail forwarded by Samantha, I sense some communication issues among CCWG legal and Jones day. I think it will be good for Co-Chairs to follow this up in other to avoid such in future. I don't want to believe yet that the CCWG legal is not acting in a neutral manner in this process (since Jones day is considered not to be acting neutral by default)

As to your specific question Leon, I note that the approach proposed does not in any way turn SO/AC to member. I also note that 3 options where provided and it seem you only highlighted 1 of them.

For me, what we have been made to believe at CCWG is that enforceability is NOT possible with the board proposed approach and it will be good to answer that fundamental question before even considering complexity/capture.

Regards

Sent from my Asus Zenfone2
Kindly excuse brevity and typos.
On 8 Oct 2015 20:28, "León Felipe Sánchez Ambía" <leonfelipe at sanchez.mx<mailto:leonfelipe at sanchez.mx>> wrote:
Thanks Sam. This is very useful information.

It would be useful to know how this avoids going into the concerns raised by the Board on capture, complexity and uncertainty:

Quote from Jones Day Memo

"Specifically, under the Board’s Proposal, the decision could be enforced by an unincorporated association comprised of: (i) an individual participating SO/AC or some grouping of participating SOs/ACs; (ii) the members of multiple participating SOs/ACs; or (iii) chairs of multiple participating SOs/ACs. In the alternative, the individual (natural) people serving as chairs of the participating SOs/ACs could enforce the award in an individual capacity."

It would be great if we could have more clarity on this I think.

Best regards,

León

El 08/10/2015, a las 1:47 p.m., Samantha Eisner <Samantha.Eisner at icann.org<mailto:Samantha.Eisner at icann.org>> escribió:

I am forwarding this on behalf of Jones Day, as they do not have sending rights to this list.

Note from Jones Day:

Dear CCWG,

As Holly noted in her cover email, CCWG Counsel's "Comparison of Independent Review Processes" was provided to Jones Day in advance of it being circulated to the CCWG.  In the interests of transparency, please note that Jones Day did not provide line edits identifying the areas of disagreement with CCWG Counsel, but instead provided the attached memorandum for CCWG Counsel's consideration.  CCWG Counsel did not revise its Comparison document to reflect the thoughts set forth in the attached Jones Day memo.  Sidley/Adler understood that this memo would be shared with the CCWG after their Comparison document was circulated.

From: <accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org>> on behalf of "Gregory, Holly" <holly.gregory at sidley.com<mailto:holly.gregory at sidley.com>>
Date: Wednesday, October 7, 2015 at 10:24 PM
To: Thomas Rickert <thomas at rickert.net<mailto:thomas at rickert.net>>, Mathieu Weill <mathieu.weill at afnic.fr<mailto:mathieu.weill at afnic.fr>>, León Sánchez Ambía <leonfelipe at sanchez.mx<mailto:leonfelipe at sanchez.mx>>
Cc: Sidley ICANN CCWG <sidleyicannccwg at sidley.com<mailto:sidleyicannccwg at sidley.com>>, ACCT-Staff <acct-staff at icann.org<mailto:acct-staff at icann.org>>, ICANN-Adler <ICANN at adlercolvin.com<mailto:ICANN at adlercolvin.com>>, "accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>" <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Subject: [CCWG-ACCT] Comparison of independent review processes

Dear CCWG Co-chairs, Members and Participants,  Attached please find a comparison of key characteristics of  (1) ICANN's current IRP, (2) the IRP under the CCWG 2nd Draft Proposal (in the context of the Community Mechanism as Sole Member Model), and (3) the IRP and MEM set forth in the Board Proposal as requested in L.A.
We shared this with Jones Day and ICANN Legal in advance so that they could provide any corrections regarding our understanding of the IRP and MEM as set forth in the Board Proposal.
Kind regards, Holly and Rosemary

Sent with Good (www.good.com<http://www.good.com/>)

________________________________
From: Grapsas, Rebecca
Sent: Wednesday, October 07, 2015 11:45:50 PM
To: Gregory, Holly
Subject:

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<Oct. 7, 2015 Memo re Enforceability of Binding Arbitration[1].pdf>

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