[CCWG-ACCT] Deck for Meeting #75 Mission Statement discussion
Alan Greenberg
alan.greenberg at mcgill.ca
Tue Jan 19 04:02:05 UTC 2016
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.
>
>
>âIf (in your view) ICANN caânnot 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.
>
>
>âHowever, this is not what Becky
>postulated. She postulated obligations
>âplaced 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.
>
>
>âThis 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.
>
>
>âWe 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.â 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.
>â
>
>--
> Malcolm Hutty | tel: <tel:%2B44%2020%207645%203523>+44 20 7645 3523
> Head of Public Affairs | Read the LINX Public Affairs blog
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