[CCWG-ACCT] On IRP subgroup summary being presented at Johannesburg

[Greg Shatan]

This is a distinction without a difference.  ICANN's Mission is set forth
in Article 1 of the Bylaws.  Thus, if ICANN exceeds its Mission, it
contravenes its Bylaws.

Greg

On Sun, Jun 25, 2017 at 11:55 AM, Sivasubramanian M <isolatedn at gmail.com>
wrote:

> Dear Malcolm
>
>
> Thank you for explaining the context. But I was actually trying to take
> this reference to mission and bylaws somewhat beyond the immediate context.
> ICANN's mission at a Global entity operating in Global Public Interest
> ought not to be straight-jacketed. If limited, ICANN would be severely
> restrained from doing what it takes to care for the DNS. Section 4.3 needs
> an amendment, even if it is late into the work stream to make this
> suggestion, as IRP ought not to be restrained by this limited view of
> ICANN's mission. The task before the IRP is to examine if ICANN CONTRAVENED
> its bylaws and not if it EXCEEDED its mission.
>
> Sivasubramanian M
>
> On Sun, Jun 25, 2017 at 9:46 AM, Malcolm Hutty <malcolm at linx.net> wrote:
>
>> On 25/06/2017 08:26, Sivasubramanian M wrote:
>> > Hello
>> >
>> > Unless there are unspoken and unseen merits, I have some concerns on
>> > some aspects of the summary:
>> >
>> > 1.  The idea of constraining ICANN to its bylaws figures very
>> > prominently in the summary, defined as one of the pillars, not really a
>> > supportive pillar, but sort of a not so well thought of negative
>> > command, " Don't allow ICANN to exceed its mission"
>>
>> David was attempting to summarise a very long and extremely complex
>> instrument, which was negotiated in detail as part of WS1/transition
>> negotiations.
>>
>> I believe David may have been referring in the "pillars" to section 4.3
>> (a) of the bylaws which sets out the "purposes of the IRP".
>>
>> This says, in part,
>>
>> "The IRP is intended to hear and resolve Disputes for the following
>> purposes ("Purposes of the IRP"):
>>
>> (i) Ensure that ICANN does not exceed the scope of its Mission and
>> otherwise complies with its Articles of Incorporation and Bylaws.
>>
>> [....continues]"
>>
>> Moreover, we need to remember that the IRP is only available under
>> specific circumstances. Essentially (and this may be a slight
>> oversimplification), to use the IRP you have to be making a claim that
>> ICANN breached its own bylaws, not merely that you would have preferred
>> it acted differently. The extent of the Mission (which is broad, but
>> clearly limited) and the instruction to act only within the scope of
>> that Mission, are both set out in the bylaws. So the above extract
>> should be understood in that context.
>>
>> Does that provide sufficient context to David's remarks?
>>
>> --
>>             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
>>            Monument Place, 24 Monument Street London EC3R 8AJ
>>
>>          Company Registered in England No. 3137929
>>        Trinity Court, Trinity Street, Peterborough PE1 1DA
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>
>
>
> --
> Sivasubramanian M <https://www.facebook.com/sivasubramanian.muthusamy>
>
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