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

[matthew shears]

+ 1 David and well said.

Matthew


On 07/10/2016 14:10, McAuley, David wrote:
>
> 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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-- 
--------------
Matthew Shears
Global Internet Policy and Human Rights
Center for Democracy & Technology (CDT)
+ 44 771 2472987

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