[Gnso-newgtld-wg-wt2] Take Away and Policy Statement for Terms and Conditions Discussion

[Michael Flemming]

Dear All,

I want to once again thank those who were able to make last Thursday's
meeting in regards to the Terms and Conditions.

While staff have already done a great job summarizing the discussion notes
of Thursday's call, I want to follow up in a separate email about possible
policy statement/recommendations per the discussion.

*Overall Meeting Flow*

We covered briefly a summary of all of the Terms and Conditions. I am
attaching the revised slides (there was a typo or two and I am leaving out
the CC2 questions) that dealt with our discussion. The table provided is my
own quick summary and does not capture the more specific legal wording of
each section.

*Section 3: *ICANN reserving the right to determine not to proceed with any
and all applications discussion take away:

>From our discussion, something like the following could be considered as an
applicable policy statement to ICANN.

*"ICANN needs to have discretion within the confines of policy, the
applicant guidebook, and the security and stability of the Internet when
determining whether or not an applicant should not proceed. The current
Terms and Conditions allows ICANN to arbitrarily determine that no
applications could proceed to delegation. ICANN's determination must be
limited only within the rules outlined in the Applicant Guidebook.
Furthermore, ICANN should not be allowed to determine that no additional
gTLDs will be created; rather, ICANN should consider any application for
delegation that is submitted within the requirements of the applicant
guidebook and follows all applicable rules of the application process."*


*Section 6:* Covenant not to sue ICANN:

Jeff Neuman provided a policy statement that we could further wordsmith as
necessary.

*" 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."*


*Section 14:*

This section looked at the right of ICANN to make changes to the AGB as
long as it does not cause hardship to those who have already submitted an
application while at the same time allowing ICANN to work with such
applicants to mitigate those hardships.

Our discussion points concluded that while ICANN did make changes to the
AGB and those did in fact cause hardship to applicants, ICANN did little to
mitigate such hardship. Also, as a part of the overall WG, one of the areas
we are looking at is predictability in the process. If predictability
allows us to foresee certain changes to an extent, then this section will
likely make more sense.

All the same, I wonder if we could have more input on this topic before
coming up with any possible possible recommendation if it would be deemed
necessary.

*Other Sections:*

We also concluded to focus further discussion on the following sections,
which relate to one of the above or need further clarification.

*Section 5* - Up for consideration (in relation to Section 6).

*Section 10* - This warrants looking at. It was mentioned that there was an
issue of applicant assigning rights hasn't been honored.

Kind regards,

Michael Flemming
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