<div dir="ltr"><div>Dearest Avri,</div><div><br></div><div>I asked "As I understand, trusts are generally established between three legal entities: the author, trustee and the beneficiary... In Strawman 4, who are these entities?" I also requested you to clarify the nature of laws under which you had conceptualised the trust arrangement.</div><div><br></div><div>In response, the only place where you directly answered my question was when you said "trustee - the Internet community".</div><div>In addition, you also mentioned an "administrator to hold and administer" the IANA Contract for the trustee, while not suggesting who the administrator is. In the next email you instead suggested that the trustee should hold the IANA contract on behalf of the beneficiaries, without naming who the beneficiary is.</div><div><br></div><div>These answers have not been very helpful and I continue to be confused about the constituent members of the trust. I feel you are throwing a broad body of law (trust law) at us without helping us understand the exact institutional arrangement that you conceptualise under it.</div><div><br></div><div>If you strongly feel that the trust concept is workable, I request you to update the matrix with a more accurate description of the institutional arrangement that you are proposing and help clear community doubts so that we can work towards a consensus proposal. As a step towards that effort, I humbly request you to answer the question in my first email about the proposed parties to the trust. Also please describe the details of the institutional arrangement, for example, what is the relationship between ICANN and the trust constituents? Is the internet community represented in the trust through some existing legal entity? What is the status of the ICG panel in this trust? Who is the administrator? How is the IANA Operator represented in or related to the trust? </div><div><br></div><div>In the absence of such clarity, I am unable to discuss Strawman 4 with my local community and respond to the group. Such information asymmetry, wherein you are holding your ideas to your chest, is a serious impediment towards a successful bottoms-up process. </div><div><br></div><div>I do not think we can keep away from the legal aspects and just respond to the RFP with a bunch of sentiments. If you are following the IETF working group, you would realise that there is much dissatisfaction with the current draft response because the members have chosen to keep away from the legal aspects of the transition.</div><div><br></div><div>Imagine your reaction if I said the answer to the IANA transition lies in contract law without telling you the purpose of the contract and the parties to the contract. I also cannot but disagree with the following magical power of lawyers: "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".</div><div><br></div><div>PS: I never said your proposal is late; I never said there is consensus against MS principles; and I do not doubt your family's background in law.</div><div><br></div><div>Regards,</div><div>Guru</div><div><br></div></div><div class="gmail_extra"><br><div class="gmail_quote">On Sun, Nov 16, 2014 at 10:46 PM, Avri Doria <span dir="ltr"><<a href="mailto:avri@acm.org" target="_blank">avri@acm.org</a>></span> wrote:<br><blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex">
<div bgcolor="#FFFFFF" text="#330033">
Hi,<br>
<br>
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.<br>
<br>
So, please forgive me for not taking you legal advice. <br>
<br>
avri<div><div class="h5"><br>
<br>
<div>On 16-Nov-14 10:46, Guru Acharya wrote:<br>
</div>
</div></div><blockquote type="cite">
<pre><div><div class="h5">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 href="https://docs.google.com/document/d/1kO8dtSdkTnH79FSUsxA8KmPv1O2IfYwYFm2k_CIoNMw/edit" target="_blank">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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