[CCWG-ACCT] Summary of current Board sentiment

Sun Sep 27 23:06:16 UTC 2015

This would be helpful

Thank you Chirs

*Carlos Raúl Gutiérrez*
+506 8837 7176
Skype carlos.raulg
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*COSTA RICA*

On Sun, Sep 27, 2015 at 1:11 PM, Chris Disspain <ceo at auda.org.au> wrote:

> 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/
>
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