[Ws2-hr] My thoughts on "Applicable Law" in HR Bylaw

[McAuley, David]

Coming out of last week's sub-team call Niels asked if I would write down my understanding of the term "applicable law" that appears in Bylaw (Core Value) 1.2(b)(viii). This is the Bylaw for which we are endeavoring to create a Framework of Interpretation.

The term "applicable law" appears in two of this Bylaw's three sentences and constitutes, in my opinion, an important limitation to ICANN's undertaking.

My understanding of the concept of applicable law refers to that body of law that binds ICANN at any given time and in any given circumstance. It could consist of statutes, rules, regulations and the like, as well as decisional orders/rulings of courts having appropriate jurisdiction, that take effect through the power of a legitimate governmental entity.

It is a changeable concept inasmuch as laws, regulations, etc. change over time. It can be fairly long-lasting, such as California corporate-governance rules impacting ICANN, or it can be fairly short-term in effect: if ICANN chooses to organize a meeting of its board, staff and community in Hyderabad then the board, staff, and community must observe Indian travel regulations affecting visitors.

Applicable law can work disparate impacts on ICANN around the globe: for example, if ICANN employs personnel in Singapore, Turkey, Uruguay, Belgium, etc. then it must observe appropriate (and potentially conflicting) personnel laws in those various places.

Applicable law is thus be a large body of law that eludes our ability to catalogue, but it is ascertainable in the context of a specific question or issue.

That is how I personally understand the term - it might make sense to ask the ICANN legal department to weigh in on this given the importance of the term to ICANN in this Bylaw.

But I stressed the importance of this one limitation (among others) on our call because it appears to be central to this Bylaw. It exists and is repeated, it cannot be ignored or written away. And if we were to interpret this Bylaw in a manner requiring ICANN to respect rights beyond those found in applicable law we would, in effect, be asking ICANN to write law - to go well beyond its expertise. For an organization with such a limited technical role that would be a mistake, in my opinion.

David

David McAuley
International Policy Manager
Verisign Inc.
703-948-4154

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