[Acct-Legal] Let's kick off!

Wed Feb 4 04:43:13 UTC 2015

One additional point.

While a "Contract Co." model may not be ideal solution for ICANN's overall
accountability issues, I don't believe there is any danger of "creating
another ICANN."  Contract Co. itself is expected to be little more than a
shell, and the MRT and CSC are two small working groups; all 3 would have
very narrow remits fundamentally stated in their organizational documents.
I expect that retaining legal counsel will demystify this model for the CWG
and the community.

Greg

On Tue, Feb 3, 2015 at 11:30 PM, Greg Shatan <gregshatanipc at gmail.com>
wrote:

> 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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