[CCWG-ACCT] Regarding mission statement and human rights

[Greg Shatan]

Bruce,

The term "applicable law" shows up in many different types of US legal
documents.  I am sure there are legal opinions, regulations and other
sources that can provide a formal legal understanding of that.  I'm sure
our counsel would be happy to prepare a memo on "applicable law" if we want
one.

I'll just speak from the experience gained in 28 years of practicing law in
the US.  I have always understood it to mean all of the laws that apply to
a particular entity or to a particular transaction.  I have always
understood "laws" to refer to laws made by governmental authorities.  I'm
quite confident that the other attorneys working on these matters, and
their clients, had the same understanding.  I'd go so far as to say that
this is understanding is the common legal understanding.

This would mean that ICANN, at a minimum is subject to US federal law,
California state law and also to any local laws in Los Angeles.  (No matter
where you are in the US, you are always subject to US federal law, the
arguments of some armed occupiers in Oregon notwithstanding.)

I don't think we have any latitude whatsoever to declare that "applicable
laws" in the ICANN Articles of Incorporation or Bylaws refers to the ICANN
Bylaws.  I have not seen "laws" construed to include corporate bylaws, much
less be limited to corporate bylaws.  This line of thinking should be
discarded as unsupportable.

There are certainly US federal, state and local laws that protect human
rights, starting with the US Constitution.  (I tend to suspect that
California has more such laws at the state and local laws than most other
states.)  Federal, California and Los Angeles laws that protect human
rights would obviously apply to ICANN.  I believe our counsel has given us
a few examples of such laws and I'm sure a long list could be made -- wage
and hour laws, privacy laws, laws against unlawful imprisonment, etc., etc.

Greg






On Fri, Jan 29, 2016 at 7:07 AM, Bruce Tonkin <
Bruce.Tonkin at melbourneit.com.au> wrote:

> >>  My problem with "applicable law" is that Human Rights are fundamental,
> whereas laws differ from country to country. And Human Rights can not be
> "diminished", for the lack of a better word, by the laws of a country.
>
> >>  So, if "applicable law" mean the Bylaws and not the law of any country
> or countries, lets's put this in, if only for avoidance of doubt.
>
> I would also expect that ICANN is already subject to "applicable" national
> laws - whether or not they are in the bylaws.
>
> So  a bylaw that states that ICANN is subject to applicable laws seems
> somewhat redundant.
>
> Regards,
> Bruce Tonkin
>
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