[CCWG-ACCT] Summary of current Board sentiment

Sun Sep 27 19:11:50 UTC 2015

> as I understand the legal advice we have received from our own independent legal counsel, it is to disagree with your professional opinion as stated below.

Could I please ask Holly and Rosemary to confirm that Malcolm is correct in his understanding of the legal advice?

Cheers,

Chris

> On 28 Sep 2015, at 05:06 , Malcolm Hutty <malcolm at linx.net> wrote:
> 
> Thank you Samantha, that is very helpful. I think it shows a route forward, if not necessarily an easy one.
> 
> The problem is this: as I understand the legal advice we have received from our own independent legal counsel, it is to disagree with your professional opinion as stated below. For what it's worth (very little I admit), neither do I know of any basis for a court to uphold a default judgment rendered by an arbitration panel against a party that had not agreed to enter arbitration.
> 
> But your assertion is still helpful in narrowing the issue. If it is indeed shown that you are correct,  and that it is clear that the Californian courts would indeed uphold an arbitration ruling notwithstanding that ICANN had refused to enter arbitration, then I will seriously reexamine my position (by which I mean, I do not now know any reason why under such circumstances I would not be prepared to accept MEM, or other proposals of such like). I do not make any great claims for myself, but if anyone should share my view or choose to be guided by my analysis, this could be a step forward. 
> 
> I must, however, ask you: can you reciprocate? If it is shown that our advisors are right and you are not, and that accordingly the courts would not enforce a "default judgment" against ICANN by an arbitration panel unless it had previously agreed to enter arbitration through the IRP, will you similarly accept that only a membership based solution is acceptable?
> 
> Perhaps this is an unfair question: you are an employee and may not be authorised to make such a concession. I am an employee too, with limited authority, so I sympathise.  In which case, please consider the same question directed at any Board members who care to take it up. 
> 
> Malcolm. 
> 
>> On 27 Sep 2015, at 20:27, Samantha Eisner <Samantha.Eisner at icann.org> wrote:
>> 
>> Hi Malcolm, I see your point below that "The MEM - another layer of
>> arbitration - would not give anyone the capability to force ICANN to enter
>> the IRP, because the Board could also
>> refuse to accept arbitration by the MEM.²
>> 
>> I¹m resending my response from 24 September on this same issue -
>> 
>> In the unlikely event that ICANN refuses to participate in the MEM, the
>> MEM arbitration would still take place and ICANN would suffer the
>> equivalent of a default judgment against it for not participating in the
>> MEM, and that declaration would be binding and enforceable.  If the Board
>> believes that an action should be insulated because of its fiduciary
>> duties, it can¹t avoid a negative finding on that because ICANN fails to
>> participate and defend itself.
>> 
>> 
>> Regards, 
>> 
>> Sam
>> 
>> 
>> On 9/27/15, 2:14 AM, "accountability-cross-community-bounces at icann.org on
>> behalf of Malcolm Hutty" <accountability-cross-community-bounces at icann.org
>> on behalf of malcolm at linx.net> wrote:
>> 
>>>> On 2015-09-27 01:55, Stephen Deerhake wrote:
>>>> 
>>>> Thus it's my
>>>> contention that if the WG continues down this path, this project will
>>>> fail.  Maybe that's what some members of the WG want; I don't knowŠ
>>> 
>>> If backed into a corner, so be it. I challenge your implication that a
>>> willingness to contemplate continuation of the status quo constitutes
>>> bad faith.
>>> 
>>> There are many of us who approached this CCWG in good faith (and
>>> invested huge
>>> amounts of time and effort in trying to make it work) but who still have
>>> "red lines" - minimum requirements without which they would prefer that
>>> transition did not
>>> proceed.
>>> 
>>> I count myself within that class. My own red line is that an aggrieved
>>> registrant who
>>> stands to lose their domain as a result of ICANN policy must have the
>>> right to
>>> challenge the legitimacy of that policy on the grounds that it is
>>> outside ICANN's scope,
>>> and that that challenge must be before a fair and objective independent
>>> panel with
>>> the power to quash the policy. We have made considerable progress toward
>>> this goal.
>>> So far, the panel, its independence, its decision-making standard and (I
>>> think) its power,
>>> have all been accepted. But as for the *right* to challenge, while the
>>> Board says it
>>> is willing to accept this in principle, it rejects the SMM, which is the
>>> only mechanism we have found for
>>> making the right to seek redress enforceable. By that I mean, the SMM is
>>> the only mechanism
>>> which could correct and force ICANN to enter into the IRP if, in a
>>> particular case, it
>>> refused to do so. The MEM - another layer of arbitration - would not
>>> give anyone the
>>> capability to force ICANN to enter the IRP, because the Board could also
>>> refuse to accept
>>> arbitration by the MEM.
>>> 
>>> This is a problem for me. I have no difficulty or embarrassment about
>>> saying that I would
>>> prefer that the entire transition failed than that it proceed without a
>>> satisfactory resolution
>>> of this point.
>>> 
>>> But my own red line is really very modest. Some may have more ambitious
>>> demands, and
>>> I don't think that that would be illegitimate. Consider how we began
>>> this whole process.
>>> 
>>> The NTIA has exercised a historic stewardship of the DNS and a de facto
>>> oversight of
>>> ICANN. NTIA periodically imposes on ICANN a new contract, one that ICANN
>>> simply cannot
>>> reject. As a consequence, NTIA has the effective and enforceable powers
>>> to initiate and
>>> enforce change in ICANN. As a result of this special relationship NTIA
>>> was in a position
>>> to, and did in fact, effect change within ICANN that nobody else would
>>> have been capable
>>> of bringing  about.
>>> 
>>> When we began this process, NTIA declared that it wanted a proposal to
>>> transition its historic
>>> role to the global multistakeholder community. If some people
>>> interpreted this as meaning
>>> that the global multistakeholder community must gain an effective and
>>> enforceable mechanism
>>> to bring about change within ICANN, over the heads of a Board that
>>> resisted that change,
>>> I wouldn't think that would be an unreasonable reading of what was
>>> offered.
>>> Nor do I think it would be unreasonable for someone to conclude  that
>>> the CCWG's proposal -
>>> much less the  Board's counter-proposal - falls significantly short of
>>> that ambition.
>>> So if someone concluded that it was better to remain with the current
>>> position where
>>> at least /someone/ had the power to force ICANN to change (especially
>>> since the NTIA's record
>>> in this regard is known and benign) then I don't think it would be fair
>>> to cast a person
>>> with such a view as unreasonable or as some sort of saboteur.
>>> 
>>> But as I say, I am not myself demanding the full accountability of ICANN
>>> and the complete
>>> subordination of its institutional bureaucracy to the global
>>> multistakeholder community.
>>> If I can be certain that it can be contained within its defined scope, I
>>> will be satisfied.
>>> Sadly, as of today, I am not being offered even that much.
>>> 
>>> Kind Regards,
>>> 
>>> Malcolm.
>>> 
>>> -- 
>>>           Malcolm Hutty | tel: +44 20 7645 3523
>>>  Head of Public Affairs | Read the LINX Public Affairs blog
>>> London Internet Exchange | http://publicaffairs.linx.net/
>>> 
>>>                London Internet Exchange Ltd
>>>          21-27 St Thomas Street, London SE1 9RY
>>> 
>>>        Company Registered in England No. 3137929
>>>      Trinity Court, Trinity Street, Peterborough PE1 1DA
>>> 
>>> _______________________________________________
>>> Accountability-Cross-Community mailing list
>>> Accountability-Cross-Community at icann.org
>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>> 
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20150928/dfe0000c/attachment.html>