[Gnso-newgtld-wg-wt2] Actions/Discussion Notes: Work Track 2 SubTeam Meeting 16 February

Thu Feb 16 22:08:33 UTC 2017

Dear Sub Team Members,

Please see below the action items and discussion notes captured by staff from the meeting on 16 February.  These high-level notes are designed to help Work Track Sub Team members navigate through the content of the call and are not a substitute for the chat room or the recording.   See the chat room and recording on the meetings pages at: https://community.icann.org/display/NGSPP/Work+Track+2+Meetings. 

Please also see the attached slides referenced below.  Excerpts from the chat room are included below for ease of reference.

Best regards,

Julie

Julie Hedlund, Policy Director

Action Items/Discussion Notes 16 February

Agenda:

1. Welcome

2. SOI

3. Terms and Conditions

4. CC2 Questions

5. AOB

Notes:

1. Terms and Conditions (slide 4)

-- Part of the ABG -- module 6: https://newgtlds.icann.org/en/applicants/agb/terms-04jun12-en.pdf. 

-- Binding document.

Background Information (Slides 5 and 6)

>From the chat:

Jeff Neuman: If I remember correctly, ICANN displayed this and required express agreement with these when submitting an application

Steve Chan: @Jeff, if I recall, it was built into TAS.

Jeff Neuman: Right.  So before you ould hit "Submit", you had to agree to the Ts and Cs.

Rubens Kuhl: So an applicant can challenge a decision in court before it's final ? ;-)

Jon Nevett: on 14, should be material hardship to applicant.

Mike Rodenbaugh: typo in 14 near end, should be "hardship to Applicant"?

Mike Rodenbaugh: First two sentences, if taken literally, makes the entire contract illusory...  ICANN has no obligation unless it chooses.

Jon Nevett: I don't often say this, but Alan +1!!

Rubens Kuhl: "May not assign applicant rights" is an interesting reading considering .web and .blog. 

Jon Nevett: Last sentence is ok.

Rubens Kuhl: "Any fees submitted" implies some sort of 100% refund. Did it happen ? 

Susan Payne: @rubens I don't think so.

Discussion Point 1 (slide 7) -- In regards to section 3 on ICANN reserving the right to determining not to proceed with any and all applications for new gTLDs. (See Section 3 of Module 6)

-- Can see a rationale for ICANN having a right to reject anything.  What seems to be the right to unilaterally reject a single application without a mention of why they can do that does sound unusual.

-- Recommend that ICANN has some disgression within the confines of the policy and applicant guidebook.  Shouldn't be as unfettered as it is now.  It there is predictability there is no need for this.

-- Relates to Work Track 3 as well on objections.

-- Question: Does any GNSO policy provide recommendations that came out in the T&Cs?  Answer: No.

-- How they used this language -- makes them unaccountable whether the applicant has succeeded or not.

-- Need a recommendation to ICANN that it needs to be accountable to decisions that they make within the scope of the AGB.

>From the chat:

Mike Rodenbaugh: First two sentences, if taken literally, makes the entire contract illusory...  ICANN has no obligation unless it chooses.

Jon Nevett: I don't often say this, but Alan +1!!

Mike Rodenbaugh: +1 Alan.  More than unusual... illusory, unfair.

Rubens Kuhl: But if we specify it, it might generate a situation where something arises that justifies not approving, but was not foreseen. 

Mike Rodenbaugh: ICANN has relied on this language (though from Module 3) in IRP proceedings against my client. "Unfettered discretion" destroys the whole point of the Guidebook, which was to take that discretion away from the Board (after the .XXX debacle)

Alan Greenberg: Admittedly less often nowadays...

Cheryl Langdon-Orr (CLO): different circumstances exist in future 'rounds' Ifrom the one that this part of the module covers for the earlier one.

Jim Prendergast: wonder where mail, corp and home fit in. 

Jeff Neuman: Agree with Susan that if there were a challenge by .home and .corp, this clause would be invoked

Susan Payne: also what about any closed generics who have not agreed to open up?

Steve Chan: For context it might useful to review the T&Cs from the very first Applicant Guidebook in 2008. The language is not dramatically different: http://archive.icann.org/en/topics/new-gtlds/terms-24oct08-en.pdf.  And there was a Board resolution from Trondheim in 2010 that relates to this subject: "The Board approves the inclusion of a broad waiver and limitation of liability in the application terms and conditions." - https://www.icann.org/resources/board-material/minutes-2010-09-25-en.

Discussion Point 2 -- Section 6: "Covenant not to sue ICANN" (Slide 8)

-- This makes ICANN entirely unaccountable.

-- In general, there is a strong need for a convenant excluding fraud and gross negligance.  Previous case practically bankrupted ICANN.  Include the ability to enforce an IRP/appeals mechanism.  Also need to include an appeals mechanism (Work Track 3).

-- ICANN needs to be more accountable to the applicants, but with a strong appeals mechanism then a covenant may not be so bad.

-- Being negligent is not a violation of ICANN Bylaws.

-- Need to be borders of what ICANN is, and is not, responsible for.

-- Discuss policy recommendation language over email.

>From the chat:

Rubens Kuhl: @Mike, I understand why an US lawyer would prefer, so I think you might get why non-US applicants are not fond of it. 

Mike Rodenbaugh: please explain

Rubens Kuhl: Home court advantage, using another meaning of the world "court".

Mike Rodenbaugh: sorry but I don't understand.  the covenant applies in any court.

Rubens Kuhl: Jon, that's what WS2 is all about, I believe... and what WS2 fails to deliver, to possible activations of the Empowered Community. 

Jon Nevett: more than that Rubens

Mike Rodenbaugh: It makes ICANN entirely unaccountable

Trang Nguyen: @Mike: under the new Bylaws, IRP decisions are binding and enforceable in any court with proper jurisdiction (4.3.a.viii).

Mike Rodenbaugh: @Trang that refers to the procedure, not to the permissible content of such a decision...ICANN still argues that an IRP panel can't recommend any affirmative relief, but can only decide whether the Board violated Bylaws... 

Rubens Kuhl: Fraud, neglience and grossful misconduct are likely already exclued by California law anyways... but mentioning it in writing is a good thing. 

Rubens Kuhl: Perhaps binding 3rd parties to ICANN Bylaws for those willing to become contractors to the program ? @Mike,  most IRP panels  disregarded that affirmative relief can't be awarded. But I believe one or two bought into JD standard argument to that.

Jeff Neuman: Further Revised: ICANN must build into the new gTLD Program appeals mechanisms to include the ability for applicants to challenge the decisions of the ICANN staff, the ICANN Board, and/or any entities delegated decision making authority over the assignment, contracting and delegation of new gTLDs.  Such appeals mechanism must include the ability to review those decisions on the merits and not only with respect to whether ICANN violated the Bylaws. Only with such an appeals process performed by an independent entity could ICANN then include a covenant not to sue in the Applicant Terms and Conditions.  However, the covenant not to sue shall not apply to cases alleging fraud, negligence or wilful misconduct.

Discussion Point 3 -- Section 14: In regards to section 14 that ICANN reserves the right to make reasonable updates and changes to the applicant guidebook and the application process (slide 9)

-- The problem with this one, which was hard to explain, you are expecting them (applicants) to put a lot of resources behind it and expecting them to be bound by provisions that you don't know what they are.  If the rules changed and the applicant withdrew they are not recompensed.

-- One of the things we are working on in the overall issues is a mechanism for better predictability and a better change process.  Then this section would be subject to that change process.

Other Sections to Review:

-- Section 5 -- Up for consideration (slide 5)

-- Section 10 -- (slide 6) -- warrants looking at.  Issue of applicant assigning rights hasn't been honored.

2. CC2 Questions 

-- Staff will circulate the link to the full WG.

-- Some of our most important work to get as much feedback as possible.

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