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

Fri Jun 12 01:48:58 UTC 2015

That is a good description of our proposal.

Greg

On Thursday, June 11, 2015, Steve DelBianco <sdelbianco at netchoice.org>
wrote:

>   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
> <javascript:_e(%7B%7D,'cvml','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
> <javascript:_e(%7B%7D,'cvml','Jorge.Cancio at bakom.admin.ch');>> wrote:
>
>>  Dear Mathieu,
>>
>>
>>
>> Thanks for this suggestion. However the timing of the CCWG call on June 16
>> th 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
>> <javascript:_e(%7B%7D,'cvml','mathieu.weill at afnic.fr');>]
>> *Gesendet:* Donnerstag, 11. Juni 2015 16:09
>> *An:* Gregory, Holly; Cancio Jorge BAKOM;
>> accountability-cross-community at icann.org
>> <javascript:_e(%7B%7D,'cvml','accountability-cross-community at icann.org');>
>> *Cc:* rfei at adlercolvin.com
>> <javascript:_e(%7B%7D,'cvml','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)
>>
>>
>>  ------------------------------
>>
>> *From:*Jorge.Cancio at bakom.admin.ch
>> <javascript:_e(%7B%7D,'cvml','Jorge.Cancio at bakom.admin.ch');>
>> *Sent:* Wednesday, June 10, 2015 05:37:22 AM
>> *To:* Mathieu.Weill at afnic.fr
>> <javascript:_e(%7B%7D,'cvml','Mathieu.Weill at afnic.fr');>;
>> accountability-cross-community at icann.org
>> <javascript:_e(%7B%7D,'cvml','accountability-cross-community at icann.org');>
>> *Cc:* rfei at adlercolvin.com
>> <javascript:_e(%7B%7D,'cvml','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
>> <javascript:_e(%7B%7D,'cvml','accountability-cross-community-bounces at icann.org');>
>> [mailto:accountability-cross-community-bounces@
>> <javascript:_e(%7B%7D,'cvml','accountability-cross-community-bounces@');>
>> icann.org] *Im Auftrag von *Mathieu Weill
>> *Gesendet:* Dienstag, 9. Juni 2015 13:58
>> *An:* accountability-cross-community at icann.org
>> <javascript:_e(%7B%7D,'cvml','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>
>> <javascript:_e(%7B%7D,'cvml','thilton at sidley.com');>
>>
>> *Pour : *
>>
>> ccwg-accountability5 at icann.org
>> <javascript:_e(%7B%7D,'cvml','ccwg-accountability5 at icann.org');>
>> <ccwg-accountability5 at icann.org>
>> <javascript:_e(%7B%7D,'cvml','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
>> thilton at sidley.com <javascript:_e(%7B%7D,'cvml','thilton at sidley.com');>
>> www.sidley.com
>>
>> [image: http://www.sidley.com/files/upload/signatures/SA-autosig.png]
>> <http://www.sidley.com/> *SIDLEY AUSTIN LLP*
>>
>>
>>
>>
>>
>>
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>> ****************************************************************************************************
>>
>>
>>
>>
>>
>>
>>
>>  --
>>
>> *****************************
>>
>> Mathieu WEILL
>>
>> AFNIC - directeur général
>>
>> Tél: +33 1 39 30 83 06
>>
>> mathieu.weill at afnic.fr <javascript:_e(%7B%7D,'cvml','mathieu.weill at afnic.fr');>
>>
>> Twitter : @mathieuweill
>>
>> *****************************
>>
>>
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>
>
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>
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