[client com] ICANN-PTI Naming Functions Agreement & Services Agreement Headers

[Chris Disspain]

All,

A number of the clauses in this current draft are likely to be of significant concern to ccTLDs. I have highlighted some paragraphs in the attached which will need to be re-drafted IMO. 

The references to RFC 1591 and GAC Principles seem to have been inserted by Sidley so may appear simply because of a lack of background information on the history of these matters. 

If there is to be any reference at all to the GAC Principles (and I am unclear that there needs to be one) it needs to be specifically to the 2005 Principles and not merely an undated reference.

It is IMPORTANT to note that the GAC Principles 2005, by their own terms, apply ONLY if the relevant government and ccTLD manager AGREE that they apply.

"1.3. These principles are intended as a guide to the relationships between Governments, their ccTLD and ICANN. They are not intended to be binding and need both Governments and Registries voluntarily to agree to apply them within their legal framework. If either the Government or the Registry decide not to adopt the principles, this cannot be held against the Registry, and the Registry still has a valid existence."

This is a critical nuance, so any reference to the GAC Principles (2005) must say that only where the relevant government and ccTLD manager agree they apply.

Further, the documents definition of ‘Interested and Affected Parties’ won’t work in respect to ccTLD matters. The Framework of Interpretation uses very specific words about who needs to be consulted regarding ccTLD matters.

I have refrained from offering any redrafted wording as I don’t think it would be appropriate for me to do so. However I strongly recommend that the leadership of the ccTLD community is immediately consulted so that acceptable words can be found (I have copied the ccNSO Chair and Vice Chairs into this email). Further, I believe that Sam Eisner will also be able to provide some guidance as to the pitfalls that the wording needs to avoid.

I am happy to assist in any way.


Cheers,

Chris







> On 28 Jul 2016, at 14:10 , Hofheimer, Joshua T. <jhofheimer at sidley.com> wrote:
> 
> Client Committee – Attached is a further revised draft of the Naming Functions Agreement.  For convenience, we have included a clean version and two redlines – an incremental draft marked against the Sidley draft circulated per the email below, and a cumulative redline against the original ICANN-legal draft proposal. 
>  
> Regarding Annex C, on our review many of the concepts do appear to have been incorporated either into the Naming Functions Agreement or into the governance documents.  We have added only a few suggested, additional clauses related to Annex C in the attached draft, along with mapping to the particular provision in the Annex. 
>  
> Thank you and speak to you tomorrow.
>  
> Best regards,
> Josh
>  
> Joshua Hofheimer
> Sidley Austin LLP
> jhofheimer at sidley.com <mailto:jhofheimer at sidley.com>
> (213) 896-6061 (LA direct)
> (650) 565-7561 (Palo Alto direct)
> (323) 708-2405 (cell)
>  

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