[CCWG-ACCT] Clarification

Fri May 22 10:24:13 UTC 2015

Hi Avri,

I think you ask some very interesting questions but I find myself
disagreeing with some of the underlying assumptions that have prompted them.

> Is it possible to design this enforceability mechanism so that at the
> most extreme it ends up before international mediators instead of US
> courts?
>

Certainly. One positive aspect of California law were we to do this is that
it is one of the more progressive jurisdictions in terms of recognizing
arbitral decisions. In the end, though, parties will always have recourse
to the courts, even if the likely outcome  would be to tell them to
recognize the arbitral decision.

> I support the goal, but am not comfortable with litigation.  Not only
> does it have to do with the national aspects and my distrust of the
> judicial system,

You have expressed this view before. I can understand it. However unless,
as some have noted, we base ICANN on a ship in international waters (and
even in such a location there are treaty issues concerning same that may
need a forum in which to be litigated) it needs to be incorporated
somewhere and be subject to some national law. I personally like California
as a jurisdiction as it has some of the most highly developed commercial
case law in the world. Things are knowable to a degree that may not be in
less sophisticated jurisdictions. I would, however, be happy to explore
alternatives in WS2. Do you just distrust the California judicial system or
does your distrust extend to all judicial systems?

I would also suggest that litigation is litigation, regardless of whether
it occurs in public (courts) or privatised (arbitration) judicial
constructs. My general preference is for the public system as some of the
issues we deal with at ICANN touch upon basic human rights of free
expression, privacy, due process and property, all of which are public
values that I don't like seeing decided in private forums.  I do
acknowledge, though, the problem of the 'which public', 'which nation'
question. I regret that I don't have an easy answer to that one.

>   it has to do with the cost of litigation

We should not assume that litigation in public constructs (courts) is
necessarily cheaper than litigation in private constructs ( arbitration).
Here is a link to a short study out of the University of Dundee that
explores this issue:
 file:///Users/Turkued/Desktop/cepmlp_car13_6_734047148.pdf

> and the fact
> that ICANN corporate has a very deep legal war chest and rarely loses.
>

I'd suggest there are a number of reasons ICANN has had such a successful
litigation record, foremost amongst them being the fact the law is usually
on their side.

It should be noted, though, that part of their success needs to be
attributed to the extraordinarily high level of talent within ICANN's legal
offices. J.J., Sam, Amy and the entire legal team are very good at what
they do and although retention of such talent may take money I don't
believe that is the only variable in play here.

I would also, as a point of comparison, note the dismal record of non i.p.
interests in the arbitral, reasonably inexpensive UDRP. Although I don't
know of any research done on the matter, I'd hazard a guess that those
generally less monied who lose in the UDRP might be better off in their
national judicial systems. UDRP outcomes would suggest that they couldn't
do much worse there.

> How would the members fund their side of the litigation?

This worries me as well,  be the judicial construct public or private.

> By and large
> in the US legal system, except in the rare case, it is won by the
> deepest pocket.
>
>
I disagree with this  statement. Yes, money has it's advantages but less so
in the court room than in many other areas of life. Money can lobby members
of Congress or Parliament, money can buy public relations, money can buy
talent including, for example, legal talent. Yet in the court room the
individual still has a chance to a degree he or she does not elsewhere. If
the law is on your side my experience suggests you have a fighting chance
regardless of the opposition.

I'll also note that our community includes some of the largest corporations
on earth. In a battle, for example, between our friends at Microsoft and
ICANN I'm not sure we could say that ICANN would be resource advantaged.

I do share your concern, though, about imbalances in all things ICANN. For
example, the corporation has spent considerable resources educating i.p.
rights holders on enforcing their rights through the RPM's created yet very
little on educating people on how to defend themselves from what may be
illegitimate or contestable claims to their preferred domain name. As we
create our accountability mechanisms we need to ensure they are accessible
to all users, be they multinational corporations or individual users. This
is a question that goes far beyond what forum we chose as the ultimate
arbitrator of all disputes ICANN related but it is one we need to consider
going forward.

Best,

Ed

> avri
>
>
> On 21-May-15 19:30, Drazek, Keith wrote:
> > Becky, this is really helpful. Thanks.
> >
> > Keith
> >
> > -----Original Message-----
> > From: accountability-cross-community-bounces at icann.org [mailto:
> accountability-cross-community-bounces at icann.org] On Behalf Of Burr, Becky
> > Sent: Thursday, May 21, 2015 12:45 PM
> > To: Accountability Cross Community
> > Subject: [CCWG-ACCT] Clarification
> >
> > Steve Del Bianco asked if I meant to imply that you would have to go to
> an IRP first if the Board decided to ignore a community budget veto.  My
> response below:
> >
> > Depends a little on the details, e.g. Whether IRP exhaustion was
> required, etc., how easy it is to secure injunctive relief through IRP vs
> court. My real point is that in a membership structure the board would be
> legally bound to respect community veto, so unless you anticipate a lawless
> board, they would respect the veto. Without the membership structure the
> board has a legal obligation to exercise its fiduciary obligations and look
> behind the advisory veto.  Assuming good faith all around, the membership
> structure actually reduces the likelihood of litigation
> >
> > Sent from my iPad
> > _______________________________________________
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