[CCWG-ACCT] (no subject)

Samantha Eisner Samantha.Eisner at icann.org
Thu Jan 14 20:22:37 UTC 2016

Thanks for this note.  I provide the following reaction in my role as an attorney with ICANN.

The concern raised by the Board in its comments was not solely focused on the issue of increased potential for lawsuits or IRPs.  Rather, the Board focused on the impact of opening up ICANN to suits or IRPs based on human rights issues prior to having the framework for consideration of ICANN's role in respecting human rights.   As Bruce explained on the 12 January 2015 call, not having a framework leaves either courts or IRP panels to determine how human rights fit into ICANN's mission.  Leaving ICANN's mission open to that type of external definitional work seems counter to all the effort of the CCWG-Accountability to confirm ICANN's narrow and limited mission.

Including undefined commitments to human rights in the Bylaws without the framework to guide courts or IRP panels in how they should consider the scope of human rights commitments in ICANN, creates a risk for the entire community.  CCWG Counsel's suggestion that IRP usage could be limited, by example, through "preclud[ing] claims of human rights violations that are not grounded in a specific violation of an applicable law", still leaves the question of what law would be applicable?  How do we know that the laws that will be relied upon are respectful of ICANN's limited mission?

The question isn't really "will ICANN be subject to more suits?"  As CCWG counsel noted, the potential of suit always exists.  The potential of IRPs being brought on human rights grounds is probably increased if there is a specific Bylaws mention of human rights.  However, these are not where the real risks occur.  The question that should be considered is "Does the community wish to leave the definition of ICANN's role in human rights to Courts or IRP panels?".  Also, it is important to note that the Board's comments do not remove the possibility of human rights being referred to in the Bylaws, but rather propose that consideration of that placement should happen after a framework is completed.

I look forward to continuing this conversation with the CCWG.



From: "Gregory, Holly" <holly.gregory at sidley.com<mailto:holly.gregory at sidley.com>>
Date: Wednesday, January 13, 2016 at 4:28 PM
To: Mathieu Weill <mathieu.weill at afnic.fr<mailto:mathieu.weill at afnic.fr>>, Thomas Rickert <thomas at rickert.net<mailto:thomas at rickert.net>>, León Sánchez Ambía <leonfelipe at sanchez.mx<mailto:leonfelipe at sanchez.mx>>, "accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>" <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Cc: "ACCT-Staff (acct-staff at icann.org<mailto:acct-staff at icann.org>)" <acct-staff at icann.org<mailto:acct-staff at icann.org>>, Sidley ICANN CCWG <sidleyicannccwg at sidley.com<mailto:sidleyicannccwg at sidley.com>>, ICANN-Adler <ICANN at adlercolvin.com<mailto:ICANN at adlercolvin.com>>, "'Rosemary E. Fei'" <rfei at adlercolvin.com<mailto:rfei at adlercolvin.com>>, Samantha Eisner <samantha.eisner at icann.org<mailto:samantha.eisner at icann.org>>
Subject: <no subject>

Dear CCWG Co-Chairs,  Members and Participants and ICANN Staff,
Attached please find our memo responding to the certified question of January 11, 2016 regarding litigation risks related to the proposed human rights bylaws provisions.  Kind regards, Holly and Rosemary

Partner and Co-Chair
Global Corporate Governance & Executive Compensation Practice

Sidley Austin LLP
+1 212 839 5853
holly.gregory at sidley.com<mailto:holly.gregory at sidley.com>

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