[Acct-Legal] Let's kick off!

[Greg Shatan]

Leon and all,

It would be a pleasure to get together and discuss this further in
Singapore.  I'll be arriving Friday morning (6 Feb) and leaving Thursday
night (technically Friday morning).  You have my email; my Skype is
gsshatan and my cell is +1-917-816-6428.  My schedule is the usual madness,
but I have several open "beer slots."

I have made significant progress in assembling the "short list" of
potential legal counsel for the CWG -- this may get to you via Lise Fuhr
(CWG Co-Chair), who received a request for it -- but going forward, it will
be easier for us to communicate directly.  I have a couple more calls to
make tomorrow, but I am already feeling good about our list.  While it took
a while to get on track, in the end I think we'll be "spoiled for choice."
 I will circulate a document with the list as it stands before I leave
tomorrow evening (technically, my flight spans 3 days, even though my
layover in Dubai is less than 2 hours...).

I look forward to seeing you all in Singapore.

Greg

On Tue, Feb 3, 2015 at 11:15 PM, León Felipe Sánchez Ambía <
leonfelipe at sanchez.mx> wrote:

> Dear Greg and David,
>
> Thanks for this fruitful discussion. I will be arriving on Saturday noon
> and will be leaving on Sunday.
>
> It would be great to find a time for all of us to sit down and brainstorm.
> A beer can help ;-)
>
> The CWG scoping document seems almost 100% compatible with our needs
> although we might need to fine tune it, of course, according to our
> charter/needs, but it is a great document and a great start. Thanks Greg
> for putting it together!
>
> I like Robin’s idea of not having to re-build ICANN corporate structure
> but that leaves out the Contract Co. alternative as far as I can see.
> Therefore I suggest that we keep in mind both alternatives as we will have
> to provide answers on both avenues when time comes.
>
> My idea is very much like Robin’s but it would also include
> representatives from IANA customers and I* corporations as well as any
> other, so to speak, stakeholder that might be relevant to the process
> (being mindful of how open-wide this could be but trying to narrow down as
> much as possible).
>
> Would you feel comfortable trying to find an hour or so at some evening
> during the week so we can all sit and talk?
>
> Which would be your preference?
>
> See you all in Singapore! Safe travels.
>
> León
>
> El 03/02/2015, a las 11:50, Greg Shatan <gregshatanipc at gmail.com>
> escribió:
>
> David,
>
> This is a good point, and links to some larger issues.  Some quick
> thoughts:
>
> 1.  Since IRP, the CWG-proposed IAP, etc. are all "private"
> arbitration/dispute resolution procedures, my preliminary view would be
> that discovery/requests for documents in the course of these procedures can
> be almost whatever we want it to be (subject to legitimate confidentiality
> and legal privilege concerns).  Nonetheless, "real" legal advice on this
> would be welcomed, and legal counsel advice on properly setting up or
> renovating DRPs will be most useful.
>
> 2.  ICANN's approach is indicative of a litigation risk avoidance
> mentality that ICANN has adopted over the course of years.  Colloquially, I
> think of this as the "Fortress ICANN" approach.  This may not have been
> inspired by Jones Day originally, but they certainly govern themselves
> according to it, and since they are more constant than ICANN management or
> in-house counsel, they may well be the standard bearers for it now.  This
> is one way to approach interactions with the community, but it is not the
> only way.
>
> 3.  A philosophical key to improving ICANN accountability is breaking down
> the "Fortress ICANN" mentality.  (By the way, "we" (the stakeholders) are
> the barbarians storming the fortress in this analogy -- apologies to any
> actual barbarians on this list).  Many of us have become so used to it that
> we take it as a given -- but it really needs to be challenged at a
> fundamental level.
>
> Greg
>
> On Tue, Feb 3, 2015 at 12:39 PM, McAuley, David <dmcauley at verisign.com>
> wrote:
>
>>  Thanks Greg.
>>
>>
>>
>> I should also note my cell phone is US based – 571-299-8624.
>>
>>
>>
>> As we think about the California non-profit element of legal advice, it
>> might be good to keep in mind one aspect of accountability that we have not
>> much focused on yet in the group but that will be important – document
>> review (discovery in US legal parlance).
>>
>>
>>
>> ICANN will need to have a more reasonable document review policy to
>> complement the IRP or other review panel mechanism. In some reconsideration
>> requests that I have read it almost becomes circular for a claimant – ICANN
>> almost demands identification of a document to share it but the claimant
>> can’t identify it without getting a chance to review documents. ICANN is
>> likely concerned about the near-ruinous US discovery practice that is used
>> as a weapon but some reasonable discovery process should be put in place –
>> should be worthwhile asking if a California non-profit can open itself to
>> such review absent a court order.
>>
>>
>>
>> David McAuley
>>
>>
>>
>>
>>
>> *From:* Greg Shatan [mailto:gregshatanipc at gmail.com]
>> *Sent:* Tuesday, February 03, 2015 11:00 AM
>> *To:* McAuley, David
>> *Cc:* León Felipe Sánchez Ambía; ccwg-accountability5 at icann.org
>> *Subject:* Re: [Acct-Legal] Let's kick off!
>>
>>
>>
>> All:
>>
>>
>>
>> I look forward to seeing you all in Singapore and working with you on
>> engaging legal counsel for both the CWG and the CCWG.  Here is the latest
>> version of the CWG "scoping document."  Fundamentally, we (the CWG "client
>> committee") are viewing this as primarily a corporate governance project,
>> with additional critical requirements in the non-profit and trust legal
>> areas, and with expertise in California law in these areas also a
>> requirement.  In our case (particularly with reference to the "Contract
>> Co." model), it is also requires corporate structuring and corporate
>> formation expertise (which should not be a problem with any corporate law
>> firm); this may not be as critical for the CCWG.
>>
>>
>>
>> I am arriving early Friday and leaving very early Friday. In addition to
>> email, my mobile is +1-917-816-6428 and my Skype is gsshatan.
>>
>>
>>
>> Best regards,
>>
>>
>>
>> Greg
>>
>>
>>
>> On Tue, Feb 3, 2015 at 8:25 AM, McAuley, David <dmcauley at verisign.com>
>> wrote:
>>
>> Hi Leon, legal team
>>
>> I hope to get a chance to meet you all in person in Singapore - plan to
>> arrive late Saturday and leave late Friday.
>>
>> Let's try to get some time together
>>
>> Cheers,
>>
>> David McAuley
>>
>> -----Original Message-----
>> From: McAuley, David
>> Sent: Sunday, February 01, 2015 1:53 PM
>> To: 'León Felipe Sánchez Ambía'; ccwg-accountability5 at icann.org
>> Subject: RE: [Acct-Legal] Let's kick off!
>>
>> Dear CCWG Accountability legal questions subgroup,
>>
>> Greetings.
>>
>> I attended the Frankfurt F2F remotely and so I may have missed a bit of
>> the discussion about our group – especially during the breaks.
>>
>> I wanted to note my plan to be at ICANN52 in Singapore and have on my
>> schedule all four of our CCWG meetings (that includes the somewhat informal
>> Sunday late-afternoon get together).
>>
>> Here are my initial thoughts on the document Leon and Grace kindly sent
>> around.
>>
>> The CWG’s “Issues for Independent Legal Advice” document raises certain
>> questions/issues we might discuss:
>>
>> 1.      Should we not coordinate our efforts along the independent legal
>> advice line with the CWG? I would say yes. The need for a unified advice
>> string seems important. If we were to get advice that contradicts that of
>> the CWG it could complicate/delay things.
>>
>> 2.      That includes the process of identifying counsel of course and we
>> should confirm among ourselves how we work with CWG legal group.
>>
>> 3.      It seems to me that the need for this advice will continue
>> through the transition process rather than be a one-time set of questions
>> and answers – as things change in the proposal preparation process. Do
>> others see things this way?
>>
>> 4.      The CWG’s document is very thoughtful:
>>
>> a.      The context-setting on first page and a half seems fine. “The
>> CWG’s Responsibilities” is also fine – we should add a section about our
>> responsibilities along the way and here I would be happy to help but
>> probably not begin the process given what was probably missed by not being
>> present in Frankfurt.
>>
>> b.      Where CWG explains external and internal solutions we might
>> explain WS1 and WS2 and the critical need (under California non-profit law)
>> for WS1 efforts to be in place or to be committed in a timely manner that
>> is guaranteed to be enforceable. There must be no wiggle-room on timely
>> enforceability in California courts of those measures that were committed
>> to (if not in place in a reasonable time) and so we might check with
>> counsel that this is achievable, what it might take for standing to press
>> the issue, and what timeliness might mean in this context – must there be
>> explicit schedules in the “firmly committed” area?
>>
>> c.      We might also explore the concept of stress-testing with outside
>> counsel although I suspect this is less critical inasmuch as we assume (I
>> think) that this stress testing will be done before a transition could
>> occur. But it might be prudent to bring up this notion of stress testing
>> just to check that we are not overlooking something – thoughts?
>>
>> d.      And we will want to confirm that a Cal. non-profit as constituted
>> post-transition will be able to enter into an arrangement under which it
>> will be subject to external review of questions of substance and process
>> where enforceable binding decisions can be rendered.
>>
>> I will start drawing up proposed questions for us to consider and look
>> forward to yours.
>>
>> David McAuley
>>
>> -----Original Message-----
>> From: ccwg-accountability5-bounces at icann.org [mailto:
>> ccwg-accountability5-bounces at icann.org] On Behalf Of León Felipe Sánchez
>> Ambía
>> Sent: Wednesday, January 28, 2015 10:12 AM
>> To: ccwg-accountability5 at icann.org
>> Subject: [Acct-Legal] Let's kick off!
>>
>> Hello everyone,
>>
>> Yesterday I circulated the (so far) last version of the scoping document
>> drafted by the CWG. That could be a starting point for our scoping exercise
>> as well but I would also like to kick the brainstorming from our side too.
>>
>> I liked the alternative suggested by Robin in the mailing list and I
>> think we should definitely take a deeper look into that.
>>
>> Just to help us focus on the work we will be delivering I would like to
>> emphasize that while looking at the “what do we need?” our final document
>> should reflect the questions on “how can we…?” from a legal perspective.
>>
>> Jonathan Zuck also sent an email to the general list with interesting
>> points. That could also help us feed our discussion.
>>
>> All thoughts and ideas welcome!
>>
>> Best regards,
>>
>> León
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>
>
>
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