[CCWG-ACCT] Deck for Meeting #75 Mission Statement discussion

[Alan Greenberg]

I strongly support Greg's position. This is 
exactly the type of thing that the ALAC was 
concerned about when we raised a general caution 
on the mission changes being contemplated and the 
concern that one of ICANN's prime 
responsibilities, being a good custodian of the gTLD space, could be subverted.

Alan

At 18/01/2016 10:32 PM, Greg Shatan wrote:
>Malcolm,
>
>On Mon, Jan 18, 2016 at 5:48 AM, Malcolm Hutty 
><<mailto:malcolm at linx.net>malcolm at linx.net> wrote:
>
>On 18/01/2016 01:54, Burr, Becky wrote:
> >
> > So if an applicant includes obligations in the application, it is ok for
> > ICANN to enforce those commitments?
>
>Not for purposes inconsistent with ICANN's Mission, no.
>
>
>​If (in your view) ICANN ca​nnot enforce 
>obligations that an applicant includes in its 
>application, who can enforce those 
>obligations?  If no one can enforce these 
>obligations, then how can they even be called 
>obligations?  What keeps applicants from pulling 
>a "bait-and-switch," stating a series of 
>"obligations" in their application, only to drop 
>them after the application is approved.
>
>Frankly, I think it is entirely within ICANN's 
>mission to enforce obligations set out in 
>applications.  ICANN is the entity running the 
>application process, and the credibility of the 
>enterprise rests in part on holding 
>applicants/registry operators to their 
>promises.  An interpretation that says that 
>ICANN can only enforce some of the applicant's 
>commitments is inherently and fatally flawed.
>
>It shouldn't be surprising that ICANN cannot escape the limits of its
>Bylaws simply by placing something inconsistent with them into a
>contract.
>
>
>​However, this is not what Becky 
>postulated.  She postulated obligations 
>​placed in the agreement by the registry 
>operator, not obligations placed in the 
>agreement by ICANN.  Once these obligations are 
>placed in a contract between two parties, the 
>obligations made by one party are enforceable by 
>the other, and vice versa.  This concept is at the very heart of contracting.
>
>If a Registry placed something in its application that would,
>if agreed, cause ICANN to act inconsistently with law that was
>applicable to ICANN, you wouldn't expect the contract to override
>applicable law. Nor should it override the governance of ICANN.
>
>
>​This answer only muddies the waters. We seem 
>to have shifted somehow from potential 
>obligations placed on the applicant to potential 
>obligations placed on ICANN in the application 
>that would then become part of the RA. I'm not 
>sure where that shift came from.
>
>I'm not sure what "real world" examples of this 
>there would be -- where a registry puts new 
>obligations on ICANN.  I think this is so rare 
>as to be essentially not worth considering.  As 
>such, the idea that a registry operator could 
>place something in an application that would 
>"override the governance of ICANN" seems to be 
>meaningless (though it sure sounds bad).
>
>Of course, if an application did require ICANN 
>to break the law, I would expect that 
>application to be rejected or modified, rather 
>than having that obligation placed into an 
>agreement.  Indeed, if it were to ever get that 
>far, a contractual provision that violated the 
>law would be void as against public policy (at least under US law).
>
> > What¹s the principle - freedom of
> > contract?
>
>No.
>
>The Registry's freedom of contract is not limited, subject to applicable
>law. But ICANN's is freedom of contract is additionally limited by the
>Bylaws.
>
>
>​We are talking about a single contract here 
>-- between a registry operator and ICANN.  So if 
>the registry's freedom of contract is not 
>limited, perforce ICANN's ability to enforce 
>that same contract is not limited 
>either.​   To say that a registry can agree to 
>perform certain actions in a contract with 
>ICANN, but that ICANN can't enforce the contract 
>to ensure that the registry performs those 
>action is essentially saying that the contract 
>is not a contract and the obligations are not 
>obligations.  In that event, these are merely 
>gratuitous statements  without the force of 
>contract, and thus essentially worthless.  Such a result makes no sense
>
>Greg.
>​
>
>--
>         Malcolm Hutty | tel: <tel:%2B44%2020%207645%203523>+44 20 7645 3523
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