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

[Paul Rosenzweig]

+1 David

 

Paul Rosenzweig

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From: ws2-hr-bounces at icann.org [mailto:ws2-hr-bounces at icann.org] On Behalf
Of McAuley, David
Sent: Friday, October 7, 2016 9:11 AM
To: ws2-hr at icann.org
Subject: [Ws2-hr] My thoughts on "Applicable Law" in HR Bylaw

 

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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