[Ws2-hr] New Draft Text for FoI

Tue Oct 4 19:04:21 UTC 2016

Jorge,
I agree with you and in fact it appears to me that ICANN Legal has responded that this HR commitment carries a good deal of weight.  At present, we are very far from a “fact-based approach”.    I have been trying to get the subteam to focus on actual activities of ICANN and Paul McGrady has been trying to get the subteam to focus on the obligations that concern “applicable law”.  In both cases, to little avail.  This is unfortunate because it causes us to lose time.   However, forcing Ruggie Principles language into the draft FOI is not a substitute for the fact-based approach you describe.

The language inserted by Niels is definitely not agreed – as can be readily seen from the list.
Anne

Anne E. Aikman-Scalese

Of Counsel

520.629.4428 office

520.879.4725 fax

AAikman at lrrc.com<mailto:AAikman at lrrc.com>

_____________________________

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Lewis Roca Rothgerber Christie LLP

One South Church Avenue, Suite 700

Tucson, Arizona 85701-1611

lrrc.com<http://lrrc.com/>

From: Jorge.Cancio at bakom.admin.ch [mailto:Jorge.Cancio at bakom.admin.ch]
Sent: Tuesday, October 04, 2016 12:00 PM
To: Aikman-Scalese, Anne; gregshatanipc at gmail.com
Cc: ws2-hr at icann.org
Subject: AW: [Ws2-hr] New Draft Text for FoI

Dear Anne

My comment was triggered by the partial quotation of one of my comments.

As I said from the start: let’s analyze the UNGP one by one. So far I feel we are just starting and we may well benefit also from the opinion of experts in interpreting what they actually mean at the practical level.

Personally I have the impression that we still are far from a fact-based approach and to reckon the flexibilities inbuilt in those principles, which are further strengthened by the “core value” nature of the HR commitment and the strong Mission definition we have in the Bylaws.

Best

Jorge

Von: Aikman-Scalese, Anne [mailto:AAikman at lrrc.com]
Gesendet: Dienstag, 4. Oktober 2016 20:55
An: Cancio Jorge BAKOM <Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch>>; gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>
Cc: ws2-hr at icann.org<mailto:ws2-hr at icann.org>
Betreff: RE: [Ws2-hr] New Draft Text for FoI

Jorge,
While I can appreciate your position and approach, I note that Greg’s comment is actually forced by the language that has been prematurely inserted into the draft FOI.    This was done in the name of “capturing our work” but several have pointed out that it does not actually do so since our work thus far was not at all  in the nature of adopting the items that have been added to the draft.

So in terms of being constructive, we really must take a step back from forced interpretations found in the proposed FOI text.  Perhaps we simply go back to the prior draft as we continue to discuss the principles.  That would, in my opinion, be a constructive way forward.  Since you initially proposed we merely discuss the Ruggie Principles and their possible applicability,  I hope that you would agree to this.

As noted on the list, there are many who are not at all in agreement with the text inserted in the draft FOI.

Anne

Anne E. Aikman-Scalese

Of Counsel

520.629.4428 office

520.879.4725 fax

AAikman at lrrc.com<mailto:AAikman at lrrc.com>

_____________________________

[cid:image004.png at 01D21E37.6FCF8030]

Lewis Roca Rothgerber Christie LLP

One South Church Avenue, Suite 700

Tucson, Arizona 85701-1611

lrrc.com<http://lrrc.com/>

From: ws2-hr-bounces at icann.org<mailto:ws2-hr-bounces at icann.org> [mailto:ws2-hr-bounces at icann.org] On Behalf Of Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch>
Sent: Tuesday, October 04, 2016 11:43 AM
To: gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>
Cc: ws2-hr at icann.org<mailto:ws2-hr at icann.org>
Subject: Re: [Ws2-hr] New Draft Text for FoI

Dear Greg

I would suggest that we continue on a constructive path. My comment (quoted partially in your email) is intended to highlight that our common ground up to now is to analyze the UNGP on a case by case basis – and logically their usefulness would be determined by the fact that we had problems or not – and if so to what extent etc.

Any assumption beyond that, both the one you infer from that partial quote as the one you are furthering from the very beginning of these discussions has not received any consensus or agreement within this group that I am aware of.

Therefore, let’s go back to work, let’s not try to infer general assumptions, and let’s analyze what is useful and what is not from the UNGP, based on facts and not on fears.

Best

Jorge

Von: Greg Shatan [mailto:gregshatanipc at gmail.com]
Gesendet: Dienstag, 4. Oktober 2016 20:25
An: Cancio Jorge BAKOM <Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch>>
Cc: Niels ten Oever <lists at nielstenoever.net<mailto:lists at nielstenoever.net>>; ws2-hr at icann.org<mailto:ws2-hr at icann.org>
Betreff: Re: [Ws2-hr] New Draft Text for FoI

First, as a fellow rapporteur I understand the need to move forward, and to create something to react to.  I do feel however that we are jumping the gun.

I would like to sign on to the concerns expressed by Bastiaan, who in turn is citing the concerns of Matthew and Tatiana.

Based on our discussions so far, we have no consensus on whether, to what extent, or how any of the UNGPs might be applied.  Yet the document seems to start from the opposite assumption.  That concerns me, as I don't think that makes the process shorter but rather complicates our process.

I'll paste in a statement that I made in comments to the document (apologies for not providing context):

We are not merely seeing "where specific problems may be identified."  That is tantamount to assuming the UNGPs are in, unless "problems can be identified."  We are not operating under any such assumption.  If anything, we are operating under the opposite assumption.  We are seeing where the UNGPs can be applied to our work.  In other words, no part of the UNGPs are in, unless there is consensus that they are in.  Furthermore, there is no assumption that we are taking all or any part of the UNGP "as is" as opposed to being revised, modified, limited, etc.

Greg

On Tue, Oct 4, 2016 at 4:36 AM, <Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch>> wrote:
Sorry, I forgot to add that I have included a series of comments in the Google doc - hope they are helpful
Regards
Jorge

-----Ursprüngliche Nachricht-----
Von: ws2-hr-bounces at icann.org<mailto:ws2-hr-bounces at icann.org> [mailto:ws2-hr-bounces at icann.org<mailto:ws2-hr-bounces at icann.org>] Im Auftrag von Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch>
Gesendet: Dienstag, 4. Oktober 2016 10:06
An: lists at nielstenoever.net<mailto:lists at nielstenoever.net>
Cc: ws2-hr at icann.org<mailto:ws2-hr at icann.org>
Betreff: Re: [Ws2-hr] New Draft Text for FoI

Dear Niels

thanks for this constructive and useful first draft on the issue.

best

Jorge

Von meinem iPhone gesendet

> Am 03.10.2016 um 17:07 schrieb Niels ten Oever <lists at nielstenoever.net<mailto:lists at nielstenoever.net>>:
>
> Dear all,
>
> I hope this e-mail finds you well. To ensure nothing of our
> constructive discussions is getting lost, and to help us continue to
> be very concrete, I would like to share with you the attached
> document, that can also be found here (page 2 onwards):
>
> https://docs.google.com/document/d/1emqmzyB9_0vm6oKxhIWZ47L7lxcFKUBHVn
> kBYUOsA2Q/edit
>
> The document aims to represent a sedimentation of our discussion and
> suggest a way forward, by providing potential text for the Framework
> of Interpretation. Partially inspired by the reaction of John Ruggie
> when I brought up our concerns with him.
>
> I hope this proves to be useful, and I am more than happy to discuss
> it with you all on the list and the call, and of course work on
> suggestions and comments in the Google Doc.
>
> Best,
>
> Niels
>
>
> --
> Niels ten Oever
> Head of Digital
>
> Article 19
> www.article19.org<http://www.article19.org>
>
> PGP fingerprint    8D9F C567 BEE4 A431 56C4
>                   678B 08B5 A0F2 636D 68E9 <ICANN Bylaws Commentary
> Table.doc> _______________________________________________
> Ws2-hr mailing list
> Ws2-hr at icann.org<mailto:Ws2-hr at icann.org>
> https://mm.icann.org/mailman/listinfo/ws2-hr
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