[Ws2-hr] FW: My suggestions for tweaking HR Sub-Team questions after yesterday's Legal team call

[McAuley, David]

Below is the copy of the mail I sent to Leon re HR questions - I had noted some clarifications to what legal team was considering and Leon asked me to take a pass at clarifying.



David



From: McAuley, David
Sent: Friday, November 18, 2016 9:43 AM
To: 'ccwg-accountability5 at icann.org'
Subject: My suggestions for tweaking HR Sub-Team questions after yesterday's Legal team call



Hi Leon and legal team,



Here are the question we addressed yesterday with respect to the HR sub-team:



1.       What is the definition ICANN legal uses for 'applicable law'?



2.       What does the term "Respect" mean according to the bylaws (in relation to Core Values)?



3.       What is the relationship between core values and commitments in general; and the HR core value and commitments in particular?



4.       How does the balancing progress between core values, as described in the bylaws, take place? Is it documented?

On the call I noted some comments in the nature of clarification and Leon asked if I would suggest some revisions on list and here below are my thoughts.



First, however, two important points.



One, I will separately send a copy of this memo to Niels ten Oever, one of the rapporteurs of the HR Sub-Team who is handling this matter for the sub-team. I will ask Niels to contact us through Leon rather quickly if he has any issue with any of this.



And, two, recall that I am a member of the HR Sub-team and have taken an active position on the nature of "respect" and the meaning of "applicable law" in the team.  There are other views than mine and they have been reasonably expressed - the discussion is not ended. So I come at this with a point of view, nonetheless I have endeavored to make these "tweaked" questions fair and in keeping with the questions originally posed by Niels.



Here is how I suggest we handle these questions and forward them to ICANN legal:



1.       With respect to ICANN legal's understanding of the definition of "applicable law":



a.       Has ICANN legal developed an understanding of the meaning of the term "applicable law"?



b.      If so, does that understanding apply in the context of the new bylaw at Article 1.2(b)(viii)?



c.       Would the following definition of "applicable law," currently under consideration by the CCWG WS2 Sub-Team on Human Rights, be consistent with either or both of those?:



a.       <Quote>: Applicable law refers to the body of law that binds ICANN at any given time, in any given circumstance and in any relevant jurisdiction. It consists of statutes, rules, regulations, etcetera, as well as judicial opinions, where appropriate. It is a dynamic concept inasmuch as laws, regulations, etcetera, change over time. Applicable law can have disparate impacts on ICANN around the globe: for example, if ICANN employs personnel in different jurisdictions then it must observe the appropriate labour laws in those various locales. Applicable law is thus a large body of law that eludes our ability to catalogue, but it is ascertainable in the context of a specific question or issue. <Quote>



d.      Please share the applicable understanding(s).



2.       With respect to questions 2 through 4 above I suggest we leave the questions as they are but introduce each of them with this phrase: "In the view of ICANN legal,".

Best regards,

David



David McAuley

International Policy Manager

Verisign Inc.

703-948-4154



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