[CCWG-ACCT] Notes, Recordings, Transcript LEGAL SubTeam Meeting #10 8 April
Brenda Brewer
brenda.brewer at icann.org
Wed Apr 8 21:50:54 UTC 2015
Dear all,
The notes, recordings and transcripts for the Accountability LEGAL SubTeam Meeting #10 on 8 April
are available here: https://community.icann.org/pages/viewpage.action?pageId=52895432
Action Items
Action: email co-chairs and rapporteurs to ask when they need lawyers on their calls. and any
feedback, and to identify documents that might
be needed for those calls
Action: pass the ARIN legal memo to the lawyers ask for their consideration.
Action: forward questions asked in response to the lawyer's questions to the respective firms. And
forward other relevant WS1 questions to both firms.
Action: To provide legal counsel with ToC for the public comment document , and tracking document
of the progress of WP1, WP2 and the stress test WP.
Action: Staff/legal sub-team will give notice to counsel of when Stress Test WP needed.
* legal sub-group will send formal memorandum to initiate work on items received from CCWG
* legal sub-group will contact co-chair and rapporteurs, identify which calls should lawyers join,
with any supporting documents
* send stress test request for legal advice.
Request, relative priority of questions: Yes, will provide prioritization.
Will send calendar invites to all lawyers, with links to relevant groups pages and meeting
information
To co-chairs to ask for time on the agenda for next CCWG call April 14 12:00-14:00 UTC - CCWG, or an
exceptional call, to allow outside legal counsel to level set., offer a presentation on the
mechanisms being considered.
Legal presentation, 50-60 minutes required.
Action: contact co-chairs about legal counsel presentation at the next CCWG meeting, or an
exceptional meeting?
Notes
These high-level notes are designed to help you navigate through content of the call and do not
substitute
in any way the transcript.
1. Welcome & Roll call
2. Timeline and Methodology (15 minutes)
Preliminary report on April 21. Less than 2 weeks for document to be produced. How can Counsel
and the legal sub-team support the groups. How to best inform the lawyers of calls. With an eye to
cost effective.
Friday 17, following the CCWG schedule of 14, 16 and early 17 April.
What other calls should legal be on? WP1 later today (April 8), Adler unable to join be Sidley will
cover the call and do document review.
48 hours notice would be good, scoping the next 2 days ideal
Coordinate with the co-chairs and rapporteurs.
Suggest legal call on Apr 20 in addition to the 17th. And check with the co-chairs where outside
legal advice might be needed on their schedule of calls.
Action: email co-chairs and rapporteurs to ask when they need lawyers on their calls. and any
feedback, and to identify documents that might be needed for those calls
Stress Test team will becoming for legal advice on issues they have identified.
One person from the legal sub-team should join the calls where lawyers have been requested. Members
will provide coverage.
3. Review of Issues Arising from Written Advice
Issues arising from the documents and what's being discussed in the WP teams
Amend the second hour agenda to inc issues they see in the mechanisms - addition to the agenda.
Takeaways from the advice: models that are looking good, those that might be relegated. Issues
that need to be focused on, a triage.
Also look at the ARIN legal notes, particularly on designators. Also ask the lawyers to react to
the memo.
The memo is from ARIN not the ASO. However ASO representatives discussed the proposal as it was
developed, but the document put forward by ARIN
for the community's reference for work in WS1
Focus legal efforts of the next 10-12 days on WS1 issues.
Action: pass the ARIN legal memo to the lawyers ask for their consideration.
Binding nature of IRP may be an issue to focus in on.
4. Review of Issues Raised by CCWG Participants
Pedro da Silva and Eberhard Lisse.
Need to address issues that deal with WS1.
Dr. Lisse's questions not directly WS1. A centralize list of questions, and non-WS1 can be
addressed after the public comment period. Other questions directly
address the Sidley and Adler documents, suggest asking the lawyers to respond directly to the
questions posed.
Da Silva, about California law, asking for a direct response would be reasonable.
(Action: forward questions asked in response to the lawyer's questions to the respective firms.
And forward other relevant WS1 questions to both firms.)
A Wiki page will be created listing questions, with action taken provided, i.e. forwarded to counsel
or if not with the reasons why not.
Outside counsel join the call.
Want legal advice on calls when needed, but with adequate time to prepare. Proposing a 48-hour
rule, unless some emergency matter.
How to best use legal advice, will coordinate with the co-chairs and rapporteurs. 48 hours if a new
legal issues is short notice, but for previously seen
information should be adequate. Noting that lawyers on the team have different skills and not
entirely interchangeable, but the benches are strong.
April 21 work product will be the CCWG's proposals. Based on the matrix sent to the legal teams.
Recommendations on work stream 1 accountability mechanisms.
Action: To provide legal counsel with ToC for the public comment document , and tracking document
of the progress of WP1, WP2 and the stress test WP.
Task to ask co-chairs and rapporteurs when the expect legal counsel to be needed.
Questions from Stress Test WP will submitted to legal counsel. The WP meets weekly, Wednesday at
11:00UTC.
Action: Staff/legal sub-team will give notice to counsel of when Stress Test WP needed.
WP1 questions will be discussed on the group's call later today (21:00- 23:00 UTC) Sidley will
address at a high level on the WP1 call.
How powers are given to the community are important, but would be helpful to know the priorities for
this powers, and the primary powers and mechanisms needed.
Helpful to understand if some powers are alternatives, or are all powers are wanted?
Counsel: If the CCWG comes with a set of specific requirements (to remove the board, to remove
individual directors etc), then can give advice
Response: And this is where the WP1 seems to be at. Powers have been identified. Some draft
mechanisms have been drawn up, but need advice on
whether those mechanisms are possible and if they are, can they do what the WP1 hopes they can do.
Legal sub-team will perform some triage on questions for outside counsel. More is needed on best
mechanisms rather than outliers, but for CCWG to identify those.
* Issues arising from mechanisms
List of mechanisms sent outside counsel. Any comments on the mechanisms documents.:
Two firms cooperating. A response covering legal concerns and viability. Will provide feedback by
the end of the week, and in one voice.
Wiki page will be created for questions from the community, the legal sub team will coordinate which
are asked and all submit a memo to outside counsel.
Questions on the Sidley/Adler documents will be sent.
Questions received from the community include
Question about California incorporation.
A request for a multi-jurisdictional survey, which is too broad, but may ask if the lawyers know of
any jurisdiction where ICANN functions
can be better accomplished.
ARIN, the RIR for N America region, sent some legal advice the sub-group the outside counsel to
consider, some informal response will be requested.
Questions can be seem by outside counsel as the come in, but not respond until a memo received from
the legal sub-team
Not aware of another jurisdiction what would have greater benefit than California. But have not
formally researcher this and the research would
be a substantial exercise.
Questions will focus on work stream 1.
FAQ listing responses received will be created (future action)
whether intergovernmental organization and sovereign states can bring actions against ICANN in state
and fed courts in the US, or whether other fora should
be utilized to bring their legal issues/action
Conclusion the CCWG reached on 31 March: "Still in agreement that our goal is to enhance ICANN's
accountability and therefore the topic of jurisdiction
comes into scope when a requirement we have for accountability cannot be achieved within California
jurisdiction. Based on potential requirements that
could not be achieved in WS1, the jurisdiction issue might be pursued within WS2."
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