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Hi,<br>
<br>
It is true, I care more about the requirements I put forward for a
solution then the exact legal form of the agreement document. And I
do think the 3 proposals on the table all go off in a problematic
direction. I have seen a bit of consternation about my having come
up with this 4th proposal too late. I admit I did it in reaction to
seeing 3 proposals that I feel just won't do. I think having to
work on solutions at the same time that people are working on
principles and requirements does make it much harder to avoid
solutionism.<br>
<br>
So though I believe the Trust or Trust-like structure is workable
and is sufficiency light weight, it does need to be confirmed as
workable by someone with expereince in building international Trust
arrangements. I am certainly deeming Options 2&3 as non
workable based on experience with ICANN and other no profit
institutions. And if there is another legal mechansim that meets
the same requirements that would work am happy to consider it. But
every solution I have seen to date, has problems, i.a.,<br>
<br>
- a single stakeholder solution<br>
- lacks the possibility for full separation if warranted by the
community at some later date<br>
- creates a new organization that will recapitulate many of the
problems of ICANN.<br>
- doesn't protect IANA as the actual root (for protocols, and their
derivative numbers and names) and key critical resource of the
Internet as we know it.<br>
<br>
In terms of the distinction Bertrand made between periodic review
and exception based review, I think that the main mechanism should
be periodic review, but there should also be a way for dealing with
the crisis situation. In terms of the length, I would think that the
NTIA periodicity might be worth emulating, a seven year period with
one or more intermediate checkpoints. As for presumtion of renewal,
I learned a lot about that when chairing the GNSO group on Registry
contracts a decade ago. I generally do not favor the presumption of
renewal but understand the business and investment reasons for
wanting it. Since ICANN is not a business, nor would I consider it
appropriate for a future contract holder to be profit making entity,
I consider the business imperative of the presumption of renewal to
be weaker in this case.<br>
<br>
BTW, while still not a lawyer, I have done a bit of research on
Trusts - can't argue for something and trust completely to others to
do the research. One thing I checked on was the ability of a Trust
to hold a contract or MOU and to make contracts or MOUs. That seems
to be done all the time by trustees on behalf of the beneficiaries
and thus is not the blocking issue for Trusts. It would help if
those who say it is unworkeable would list the legal points that
make it so, taking into account the versatility of Trusts,
especially under common law, and given the fact that they are
different in every jurisdiction. If there is a weak point in the
Trust solution it is whether IANA with its databases can be
considered an asset without an assignment of financial value. And
while a nominal financial value can be assigned to anything, I am
not sure that this is necessary or reasonable, though it may be
workable. This is one of the many areas in which my legal research
is still wanting, but I am a researcher and will keep researching.<br>
<br>
Again, I regret that my prior agreement to coordinate and teach at
the African School in Internet Governance and my pre-paid
non-changeable, non refundable flights made it impossible for me be
in Frankfurt.<br>
<br>
thanks<br>
<br>
avri<br>
<br>
<div class="moz-cite-prefix">On 17-Nov-14 01:22, Greg Shatan wrote:<br>
</div>
<blockquote
cite="mid:CA+aOHUQpPa1A=bXXUKqbmijqcy5+meBtBNmWSY2FgC9z+TZQYA@mail.gmail.com"
type="cite">
<pre wrap="">With my coordinator hat on, my aim is to keep the discussion evolving. At
this point, I'm just trying to help draw out information and flesh out the
concepts.
I'm not saying that a trust won't work. I am looking for something (such
as an example) that would indicate that it would work and how. While we
don't have much time to come to our decisions, there is still time to try
and understand the alternatives.
Although I am a lawyer, and I do have general working knowledge of trust
law, I am by no means a trusts lawyer. While I certainly will try and look
more deeply into the trust concept as it may apply here, I would not expect
to offer any kind of "final analysis."
On the other hand, I do hope to get some idea of whether it is genuinely
workable, I am wary of a broad legal concept being invoked as a "cure-all"
without any sense that it is realistic.
However, I don't think we should get bogged down in questions about the
trust mechanism and lose sight of the other attributes of Strawman 4,
which I think Avri brought out in her response to my prior email in this
thread. These should be on the table regardless of whether the particular
method they are paired with is viable.
Greg
On Sun, Nov 16, 2014 at 12:16 PM, Avri Doria <a class="moz-txt-link-rfc2396E" href="mailto:avri@acm.org"><avri@acm.org></a> wrote:
</pre>
<blockquote type="cite">
<pre wrap=""> Hi,
Excuse me, but i am going to need a bit more than your opinion or even
that of Greg even, that this can't happen. As the child of two lawyers, I
learned early that the fact that one or another lawyer (especially when
they come from the opposing side) says something is impossible is ofte an
indication that they just don't want to see the idea pursued and that there
is a third lawyer somewhere who knows exactly how to do what needs to be
done. And that the quicker they tell you something is impossible, the more
likely it is to be possible after all is said and done.
So, please forgive me for not taking you legal advice.
avri
On 16-Nov-14 10:46, Guru Acharya wrote:
Thanks for the detailed explanation Avri. While I understand the sentiments
that you have shared, I feel that the concept of trusts can not be used
here. I will leave it to Greg, as the coordinator and a lawyer, to give the
final analysis.
Maybe you could use Strawman 1 as a baseline (since it is closest to what
you propose in terms of no new entity) and modify it to arrive at the
solution of your choice. I see that you have already suggested changes to
Stephanie's document on Strawman 1. Working with that could give direction.
Hi,
I am not a lawyer, so any repsonse I give is suspect.
In any case, Trusts are you say very varied over jurisdictions. The have
existed forever, from what I read (not only wikipedia) since Roman times or
before. In fact I think I remember reading about them in some obscure
Latin lesson half way through the last century.
In essence the way I understand them is that some who has an asset of
value, for example stewardship of the IANA contract, gives that item in
trust to an intermediary, the adminstrator, to hold and administer for the
trustee - the Internet community.
It is true I do not know the exact form of a Trust or Trust-like
arrangement that would work. For that one would need someone who was an
expert in international trusts to determine what, if any, mix of available
trust elements could be brougth together to achieve the goal. I guess I
have so much faith in lawyers that I believe that they can create an
appropriate piece of paper to create any sort of needed legal arrangement;
in this case a trust to hold the IANA contract for the Global Internet
Community.
What I am looking for is:
- a minimalist solution that changes what is necessary to account for NTIA
transfer of stewardship, but does not try to solve every possible
complaint the contracted parties might have about IANA performance.
- a solution that allows full separability of IANA from ICANN, but which
does require that separation, especially not at this time.
- a solution that does not build yet another entity for handling IANA that
is subject to the same growth dynamics as ICANN, which was created for
handling IANA.
- a soltion that does not lead us in the slicing IANA into many little
ianas. (It is ironic that the IANA stewardship transition process may
result in the yet another form of Internet fragmentation)
In may ways I think we have confused the work in our exegisis of the
contract. The primary thing that is changing in terms of Stewardship is
who gets to decide that the contract should be either renewed or awarded
elsewhere. That is what we should focus on.
That is why I am suggesting a Trust, or some other Trust-like legal
relationship, where the IANA contract is put in trust for the global
Internet Community and there is a mechanism by which the multistakeholder
community can be brought together when necessary for critical decisions,
like reviewing performance before making a contract recommendation.
avri
On 14-Nov-14 05:35, Guru Acharya wrote:
Hi Avri and Greg,
This is with reference to the Strawman 4 added to the matrix:<a class="moz-txt-link-freetext" href="https://docs.google.com/document/d/1kO8dtSdkTnH79FSUsxA8KmPv1O2IfYwYFm2k_CIoNMw/edit">https://docs.google.com/document/d/1kO8dtSdkTnH79FSUsxA8KmPv1O2IfYwYFm2k_CIoNMw/edit</a>
While I am familiar with how trusts operate in my country, I am not able to
comprehend the use of trusts as done in Strawman 4. Maybe someone can help
explain the nature of laws under which this proposal is being contemplated.
As I understand, trusts are generally established between three legal
entities: the author, trustee and the beneficiary.
The person who reposes or declares the confidence is called the “author of
the trust”; The person who accepts the confidence is called the “trustee”;
the person for whose benefit the confidence is accepted is called the
“beneficiary”.
In Strawman 4, who are these entities?
There is reference to a ICG like panel without any legal status - I suppose
a committee within ICANN - is that the beneficiary? Who are you proposing
the trustee be? Are you suggesting that that the trustee contract the IANA
operator (ICANN) on behalf of the beneficiary (also ICANN)?
I'm not able to see how all of this works - Maybe someone could help
explain.
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<pre wrap="">
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