[Acct-Legal] Fwd: [CCWG-ACCT] Legal Memo - Responses to CCWG GAC representatives Questions

Thu Jun 11 12:01:18 UTC 2015

The second (but no less important) email.

Greg
---------- Forwarded message ----------
From: COUDEVILLE Damien <damien.coudeville at diplomatie.gouv.fr>
Date: Thu, Jun 11, 2015 at 6:50 AM
Subject: Re: [CCWG-ACCT] Legal Memo - Responses to CCWG GAC representatives
Questions
To: "Mathieu.Weill at afnic.fr" <Mathieu.Weill at afnic.fr>, "
accountability-cross-community at icann.org" <
accountability-cross-community at icann.org>
Cc: "gac at icann.org" <gac at icann.org>, Holly Gregory <holly.gregory at sidley.com>,
"Rosemary E. Fei" <rfei at adlercolvin.com>, PALKA Alexandre <
alexandre.palka at diplomatie.gouv.fr>, "FERRALI Laurent (
laurent.ferrali at finances.gouv.fr)" <laurent.ferrali at finances.gouv.fr>,
MARTINON David <david.martinon at diplomatie.gouv.fr>

Dear all,

Many thanks for taking into account our concerns in this legal memo.

Just a few comments, though, on questions 10, 11, 12, 13 and corresponding
responses that are directly related to the France’s comments on the CCWG
initial draft proposal.

*On question 10: “Would a Government becoming a member of a GAC UA be in
contradiction with the principle that States are subjects of international
law only (see France public comment)?”*

Thanks to Sidley and A&C, we understand that there is no contradiction
between becoming member of a GAC UA and the principle that States are
subjects on international law only.

If we are not mistaken, this means that *from a legal perspective in the US*,
the fact that States are subjects of international law only does not
prevent governments from being members of a Californian UA. In other words,
California Law is flexible enough to allow subjects of international law to
be members of an UA.

But this is not the question that we raised in our comments: what we said
was that “requiring France, or any other State [that is a subject of
international law], to legally recognize – under foreign law and in the
absence of an international treaty – an intergovernmental body that it
participates in like the GAC, is unprecedented”.

The problem that we face is therefore not related to California Law but to
French Law. This is why we asked our legal Department to investigate the
matter further *from a legal perspective in France* (and also why it
started by investigating, like in the case of any international treaty,
that the participation of France in the GAC would not engage our
sovereignty to an extent that could be unconstitutional).

Of course, the issue was clearly identified by Sidley and A&C (see their
general comment in the introduction: “As a general comment, we recognize
that significant variations in the laws relevant to the various GAC members
may make changes to the GAC particularly complex and may require obtaining
various executive or legislative authorizations that could be burdensome to
obtain and which are beyond our knowledge as U.S. attorneys”).

Yet we thought it could do no harm to make that clear again, just in case
our paper was not.

*On question 11: “Would the establishment of the IRP prevent Governments or
other stakeholders to challenge decisions in front of local jurisdictions?
(Some Governments like France express concerns because such use of
arbitration is regulated by law.)”*

The response by Sidley and A&C was (expectedly and rather fortunately) no.

But again, this was not exactly the question that we raised. What we said
was twofold:

1)      That once Governments or other stakeholders would agree to go
before an IRP (if established as an international arbitration court), they
would not be able to challenge decisions in front of local jurisdictions.

This is actually explained at the end of the legal memo: “The IRP process
would be open to any entity that agrees to be bound by the result. Nation
states [or other stakeholders] could agree to invoke the IRP, although
doing so would involve their voluntary submission to the jurisdiction of
the IRP for the purposes of that dispute.” [brackets added]

2)      That in order for ICANN and another party to solve a dispute before
the IRP (again, if established as an international arbitration court),
there must be a common agreement from ICANN and the other party to go
before that specific arbitration court.

This raises many questions such as: *would ICANN agree to go before other
arbitration courts if the other party did not want to go the new IRP ? Or
would it refuse and consequently place all stakeholders before two mutually
exclusive options: either go to the new IRP or to local jurisdictions ?*

It should also be noted that Sidley and A&C partly addressed those issues
in their previous legal memo dated April 20, which explored both US
litigation and litigation outside the US over such disputes.

That April 20 memo notably  underlined that “the intention to use
international arbitration must be implemented through an agreement binding
on all parties” (part III), before insisting on “the limitations inherent
to the American legal system that limit the utilization of American courts
to resolve such disputes” (part IV) and that “ICANN may wish to consider
the process of resolving disputes in foreign jurisdictions” (part V).

*On question 12: “Would the IRP be recognized as an international
arbitration court?”*

Here the response provided by Sidley and A&C is that they “advise that the
IRP be structured so that its judgments would be accepted as the outcome of
an international arbitration. The recognition of such judgments is robust
under the U.S. Federal Arbitration Act and the laws of most other nations”.

This response is in line with the conclusion of the April 20 legal memo:
“Indeed, one of the benefits of international arbitration is that
se[le?]ction of a neutral forum for resolving all disputes in order to
minimize national court litigation.”

What it conceals, however, is that the April 20 memo actually started by
examining two different options for a robust IRP: (1) “an enforceable IRP
based on binding arbitration standards”; and (2) ”an advisory IRP subject
to board ratification”.

It was thus stressed that in the first model, “arbitral decisions [of the
new IRP] are externally enforceable through court order if necessary”
whereas in the second model, “the mechanisms to make IRP decisions binding
upon the board are necessarily indirect [… but] the risk that the board
would reject even advisory IRP decisions can be minimized through other
accountability mechanisms [… such as] the threat of board recall”.

It was also pointed out that the second model provided “flexibility to
design nearly all elements of the IRP mechanisms”, from standard of review
to decision-making processes, whereas “the enhanced enforceability [… of
the first model] would be limited by the scope and procedural rules for
arbitration”.

Yet the conclusion of the April 20 memo was not drawn from that examination
of the two different options for the IRP (part II and III of the memo).

It was actually the conclusion of the examination of US litigation and
litigation outside the US (part IV and V), as alternatives to the IRP for
dispute resolution.

Question 12, of course, was a very direct one: it was basically a yes-no
question. Sidley and A&C, accordingly, provided a very straightforward
response and did not elaborate.

Sidley and A&C’s June 8 response to question 12 should nonetheless read:
“We advise that, in order to minimize national court litigation, the IRP be
structured so that its judgments would be accepted as the outcome of an
international arbitration”.

1)      It therefore seems that in a final analysis, “the establishment of
the IRP would prevent no stakeholder from challenging decisions in front of
local jurisdictions” (response to question 11), but that the establishment
of the IRP as an international arbitration court is in fact intended to
avoid that stakeholders challenge decisions in front of local jurisdictions
(response to question 12).

*We would then like to reassert that we strongly oppose this view.*

The purpose of the new IRP is not to avoid that stakeholders opt for
national court litigation.

It is certainly not a mechanism that is designed to shield ICANN against
national jurisdictions (US or otherwise).

*It** is a mechanism that is primarily designed to enhance ICANN
accountability.*

2)      Our responsibility as government is once more to stress that the
new IRP has to remain an internal mechanism within ICANN (“an advisory IRP
subject to board ratification”).

In order to enhance ICANN accountability, which again is the prime raison
d’être of the IRP, two main new features were added to the new IRP: (a)
enforceable/binding decisions; (b) expansion of the scope to merits of
complaints.

(a)    As Sidley and A&C showed in their April 20 memo, enforceability of
the IRP’s decisions is not an issue per se since it is achievable through
any of the two options: “an enforceable IRP based on binding arbitration
standards”,  or “an advisory IRP subject to board ratification”.

(b)   As for the expansion of the scope of the new IRP to merits of
complaints, however, an advisory IRP subject to board ratification provides
“flexibility to design nearly all elements of the IRP mechanisms”, whereas
“the enhanced enforceability [… of an IRP based on binding arbitration
standards] would be limited by the scope and procedural rules for
arbitration”.

Indeed, for ICANN and another party to go before such an IRP, arbitration
rules demand an existing contract between ICANN and the other party.

It seems that this condition could be fulfilled as Bylaws seem to act as
contracts between the corporation and its members under California Law.
With that, the new IRP would be in capacity to judge whether the Board’s
actions or inactions are in conformity with ICANN Bylaws.

But then the new IRP would not be very different from the current IRP
(except in terms of enforceability of its decisions of course).

What is actually sought is expanding the scope of the IRP to ICANN
policies. The IRP would then be given the capacity to judge whether the
Board’s actions or inactions are consistent with ICANN policies, current
and future.

And this raises a whole set of new questions that have not been answered
yet *: can current ICANN policies act as contracts between ICANN and
stakeholders under California Law? How future ICANN policies that do not
yet exist could be considered as contracts between ICANN and stakeholders ?
Would California Law consider differently stakeholders from SOs**, **who
are the policy-makers at ICANN** (could they be considered as “bound” to
ICANN by the policies they make?)**, stakeholders from ACs**, **whose role
is **“merely” **advisory** (would they be “bound” to ICANN by giving
advice?),** and **even **stakeholders outside ICANN, who are indirectly
affected by ICANN policies **(but have no contractual relation whatsoever
with ICANN)**?*

*Our own conclusion is that the path towards “an enforceable IRP based on
binding arbitration standards” is way too uncertain for all stakeholders to
already accept to be placed before two mutually exclusive alternative**s* *for
**dispute resolutions** (the IRP xor national litigation)**.*

*In our view, i**t is jumping into the void with no parachute**,* *just **like
abandoning US jurisdiction for international jurisdiction **right away **would
be for ICANN.*

We need to fill that void with more jurisprudence through ”an advisory IRP
subject to board ratification”, for purposes of stress testing the new IRP
over a period of time.

And we need the parachute of national litigation (US or otherwise) for
that, just like we need the parachute of temporary US jurisdiction over
ICANN, for purposes of stress testing the CCWG-accountability final
proposal over a limited period of time.

Best wishes,

Damien

*Damien COUDEVILLE*

+33 (0)1 43 17 51 17 ● damien.coudeville at diplomatie.gouv.fr

*Ministère des Affaires étrangères ● French Ministry of Foreign Affairs*

Direction générale de la Mondialisation, du développement et des
partenariats

Direction des Entreprises et de l'économie internationale

Sous-direction des Affaires économiques internationales

27 rue de la Convention 75732 Paris Cedex 15 France

cop21.gouv.fr - @COP21

#COP21 #Paris2015

*De :* accountability-cross-community-bounces at icann.org [
mailto:accountability-cross-community-bounces at icann.org
<accountability-cross-community-bounces at icann.org>] *De la part de* Mathieu
Weill
*Envoyé :* mardi 9 juin 2015 13:58
*À :* accountability-cross-community at icann.org
*Cc :* Rosemary E. Fei; Holly Gregory
*Objet :* [CCWG-ACCT] Legal Memo - Responses to CCWG GAC representatives
Questions

Dear Colleagues,

Please find attached a lawyer's memo which provides legal answers to a list
of questions that were raised during the last few weeks by government
representatives, either on list, during the CCWG calls, or through the
public comment. It is also available on the wiki page collecting legal
responses :
https://community.icann.org/pages/viewpage.action?pageId=52890082

As discussed during our call this morning an updated version of the chart
on page 5 of governance powers memo (
https://community.icann.org/download/attachments/52890082/update%20Legal%20Assessment%20-%20Executive%20Summary%2C%20Summary%20Chart%20and%20Revised%20Governan....pdf?version=1&modificationDate=1430442481000&api=v2
) is currently being prepared.

Best regards,
Mathieu

-------- Message transféré --------

*Sujet : *

[Acct-Legal] Memo - Responses to CCWG GAC Questions

*Date : *

Tue, 9 Jun 2015 03:29:01 +0000

*De : *

Hilton, Tyler <thilton at sidley.com> <thilton at sidley.com>

*Pour : *

ccwg-accountability5 at icann.org <ccwg-accountability5 at icann.org>
<ccwg-accountability5 at icann.org>

Dear Legal Sub-team,

Attached please find a memo responding to the list of questions from the
Governmental Advisory Committee (GAC) provided to us on June 5, 2015.

Best,

*TYLER* *HILTON*
Associate

Sidley Austin LLP
555 West Fifth Street
Los Angeles, CA 90013
+1.213.896.6130
thilton at sidley.com
www.sidley.com

[image: Image supprimée par l'expéditeur.
http://www.sidley.com/files/upload/signatures/SA-autosig.png]
<http://www.sidley.com/> *SIDLEY AUSTIN LLP*

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