[CCWG-ACCT] Legal Memo - Responses to CCWG GAC representatives Questions

Thu Jun 11 22:32:43 UTC 2015

Thanks, Jordan.   Just one additional point: Our proposed mechanism recognizes the GAC as a potential Member, even if it presently decides not to exercise that role.  And if the GAC decide to engage as a Member one day, they can easily do so.

From: Jordan Carter
Date: Thursday, June 11, 2015 at 5:45 PM
To: "Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch>"
Cc: "Rosemary E. Fei", "Gregory, Holly", Accountability Cross Community
Subject: Re: [CCWG-ACCT] Legal Memo - Responses to CCWG GAC representatives Questions

Dear all

My view of the UAs has always been that they are a legal envelope for the work of the SO and AC.  So SO and AC participants do not have to join the UAs (only at minimum two legal persons need to "associate", and that the UAs will simply be an envelope around decisions that the SOs and ACs make in their usual way.

Applied to GAC, this entirely obviates any requirement for any State to join anything. No changes to mode of participation would be needed, no changes to liability would arise, no changes to GAC's ability to operate precisely as it is.

The UA acting for GAC would have no ability to make decisions unless GAC made those decisions through processes defined in the GAC operating principles (its charter would set that out unchangeably). The UA would have no assets, no people, no economic activity, nothing. It would simply be an avatar for GAC.

It is this non-requirement and non-complexity that led the CCWG, in my view, to having the UA implementation tool as part of the model.

I wish that I could think of a metaphor that was appropriate to help summarise how it would work, but envelope is the best I have been able to think of so far... it doesn't do anything except make sure the letter gets through the mail unharmed.  The UA does nothing other than be a legal vehicle for the GAC's wishes to be transmitted into the ICANN system.

Finally - if GAC wishes to remain advisory only, no question of membership and thus of any UA issues arises.

Hope this helps.

best
Jordan

On 12 June 2015 at 05:16, <Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch>> wrote:
Dear Mathieu,

Thanks for this suggestion. However the timing of the CCWG call on June 16th conflicts with another prior commitments I cannot change.

However, perhaps the unanswered aspects of my questions might be further clarified with following considerations:

-          On question 4, the gist of the question is to observe that there might be important implications deriving from the legal and practical hurdles GAC participants may have to pursue under their national legislations. And that this might lead to a different composition of the GAC and the GAC-UA. What implications are there for the exercise of the community powers? May a GAC-UA with fewer members than the GAC itself exercise the powers or not or what would be the threshold? Perhaps this might not be directly a legal issue, but we cannot close our eyes before it.

-          On question 5, perhaps an example may serve: nowadays if GAC members disagree on the interpretation of the operating principles, there is no legal consequence to that (to my eyes), as the GAC is not a legal person and the operating principles have no legal status. I understand that this would change if we were acting within the GAC-UA, as it actions (as e.g. a voting procedure to exercise a community power) would need to adjust to the rules of the UA, and in case of disagreement/conflict I guess that legal actions could be adopted. So, what are the implications of this?  (What would be the consequences of conflicts of interpretation between members of the GAC-UA and/or of external stakeholders affected by decisions of the GAC-UA? What legislation would they apply? What would be the responsibilities of GAC-UA officers and/or members affected by such a conflict? How would they specifically protected from liability? To what extent?).)

-          And my remark to question 6 is self-explanatory. We have gone through very detailed legal analysis regarding some very minute aspects of other issues. Why is it sufficient to base an answer to this question on general desiderata? I feel a more detailed answer would be possible and useful.

Best regards

Jorge Cancio

Von: Mathieu Weill [mailto:mathieu.weill at afnic.fr<mailto:mathieu.weill at afnic.fr>]
Gesendet: Donnerstag, 11. Juni 2015 16:09
An: Gregory, Holly; Cancio Jorge BAKOM; accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>
Cc: rfei at adlercolvin.com<mailto:rfei at adlercolvin.com>
Betreff: Re: [CCWG-ACCT] Legal Memo - Responses to CCWG GAC representatives Questions

Dear Colleagues,

Many thanks to Jorge and Damien for these feedbacks. These questions are indeed quite important and that is the reason why we requested legal advice.

In order to achieve better understanding of the questions (I must admit I may not have fully grasped the underlying expectations) we suggest to dedicate a part of the CCWG call on tuesday 16 June for this clarification. Direct communication will certainly be a more efficient process.

Best regards,
Mathieu
Le 10/06/2015 13:20, Gregory, Holly a écrit :
Dear Jorge,
We will take another look at the questions if the co-chairs direct.  It would be helpful if the co-chairs would clarify the questions. We are apparently not fully understanding them as stated.
Kind regards, Holly

Sent with Good (www.good.com<http://www.good.com>)

________________________________
From:Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch>
Sent: Wednesday, June 10, 2015 05:37:22 AM
To: Mathieu.Weill at afnic.fr<mailto:Mathieu.Weill at afnic.fr>; accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>
Cc: rfei at adlercolvin.com<mailto:rfei at adlercolvin.com>; Gregory, Holly
Subject: AW: [CCWG-ACCT] Legal Memo - Responses to CCWG GAC representatives Questions
Dear Mathieu,

Thanks a lot for this document.

After having a first look into it, I would just like to observe that -at least regarding the questions I have posed in CCWG calls or on the list- they have only been partially answered.

To be more specific:
1) answer to question 4 misses the point an does not provide a response to the dangers in asymmetrical composition between GAC and the eventual GAC-UA;
2) response to question 5 is also very incomplete as it does not provide an answer to the very specific questions contained in that question (Question 5: As to the operation of the UA, while nowadays the infringement or differing interpretation of GAC rules of procedure (e.g. operating principles) have no legal consequence, this would change in case these rules would be applied to an existing legal person (the UA)? What would be the consequences of conflicts of interpretation between members of the GAC-UA and/or of external stakeholders affected by decisions of the GAC-UA? What legislation would they apply? What would be the responsibilities of GAC-UA officers and/or members affected by such a conflict? How would they specifically protected from liability? To what extent?).
3) response to question 6 contains a number of “desiderata” (“so long”… “should not”… “we are confident”) instead of a detailed legal analysis.
…

Personally I feel that answering quickly, reutilizing former documents and/or linking generally to them is not really the proper way forward. After having a look into several inputs made in the public consultation, I see some of these issues put forward by different contributors, which is again a sign of them being serious points which need to be addressed in depth.

Therefore, I would kindly ask you to look again into these issues accordingly

Best regards

Jorge Cancio

Von: accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org> [mailto:accountability-cross-community-bounces at icann.org<http://icann.org>] Im Auftrag von Mathieu Weill
Gesendet: Dienstag, 9. Juni 2015 13:58
An: accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>
Cc: Rosemary E. Fei; Holly Gregory
Betreff: [CCWG-ACCT] Legal Memo - Responses to CCWG GAC representatives Questions

Dear Colleagues,

Please find attached a lawyer's memo which provides legal answers to a list of questions that were raised during the last few weeks by government representatives, either on list, during the CCWG calls, or through the public comment. It is also available on the wiki page collecting legal responses : https://community.icann.org/pages/viewpage.action?pageId=52890082<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_pages_viewpage.action-3FpageId-3D52890082&d=AwMFAw&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=BhA9PWb0JrmmwE8bYPsMpA5GA_EMMsUBLU7LI6vwoFc&s=PLFipEebcbGoUFeV-3TQIK_lbxzMLmN5u8qpQxqYL78&e=>

As discussed during our call this morning an updated version of the chart on page 5 of governance powers memo (https://community.icann.org/download/attachments/52890082/update%20Legal%20Assessment%20-%20Executive%20Summary%2C%20Summary%20Chart%20and%20Revised%20Governan....pdf?version=1&modificationDate=1430442481000&api=v2<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_download_attachments_52890082_update-2520Legal-2520Assessment-2520-2D-2520Executive-2520Summary-252C-2520Summary-2520Chart-2520and-2520Revised-2520Governan....pdf-3Fversion-3D1-26modificationDate-3D1430442481000-26api-3Dv2&d=AwMFAw&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=BhA9PWb0JrmmwE8bYPsMpA5GA_EMMsUBLU7LI6vwoFc&s=27Q1vp21pq4ujESZx0oONqu6htSSUJjDiTUQV_-WlZg&e=> ) is currently being prepared.

Best regards,
Mathieu

-------- Message transféré --------
Sujet :

[Acct-Legal] Memo - Responses to CCWG GAC Questions

Date :

Tue, 9 Jun 2015 03:29:01 +0000

De :

Hilton, Tyler <thilton at sidley.com><mailto:thilton at sidley.com>

Pour :

ccwg-accountability5 at icann.org<mailto:ccwg-accountability5 at icann.org><ccwg-accountability5 at icann.org><mailto:ccwg-accountability5 at icann.org>

Dear Legal Sub-team,

Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015.

Best,

TYLER HILTON
Associate
Sidley Austin LLP
555 West Fifth Street
Los Angeles, CA 90013
+1.213.896.6130<tel:%2B1.213.896.6130>
thilton at sidley.com<mailto:thilton at sidley.com>
www.sidley.com<http://www.sidley.com>
[http://www.sidley.com/files/upload/signatures/SA-autosig.png]<http://www.sidley.com/> SIDLEY AUSTIN LLP

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Twitter : @mathieuweill

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