[CCWG-ACCT] (no subject)

Nigel Roberts nigel at channelisles.net
Fri Jan 15 08:59:29 UTC 2016

Leon, all:

Sam, and the Board are 100% correct.

As I stated early on in this discussion, the addition of the qualifying 
weasel words including the expression 'applicable law' appears to be a 
knowing and deliberate attempt by those opposed to ICANN having any 
obligation to respect fundamental rights, to eviscerate any obligations 
in that regard.

I am entirely serious here.

And I submit this perception is corrosive. Both to the trust in the 
Board's good intentions, and in that of the CCWG.

Let me put it this way: fundamental rights obligatons do not apply to 
private sector organisations as a matter of either domestic OR 
international law.

'Applicable law' therefore is a nullity.

The effect of this is that the wording imposed by the proposed wording 
appears designed to give a patina to WS1 that ICANN will respect human 
rights, whilst in law, removing all obligations /whatsoever/.

That is unacceptable, and I therefore stand with the Board on this one, 
although I probably reached this place by a different route.

On 15/01/16 05:13, Seun Ojedeji wrote:
> Hello Leon,
> It may be good to post here what "option c" text looks like. Secondly, I
> believe legal are only to provide legal opinion and I think the question
> you ask may be better directed to the board.
> Regards
> On 14 Jan 2016 22:09, "León Felipe Sánchez Ambía" <leonfelipe at sanchez.mx
> <mailto:leonfelipe at sanchez.mx>> wrote:
>     Hi Sam,
>     Thanks for this input. Would you feel comfortable with option c on
>     human rights?
>     Best regards,
>     León
>>     El 14/01/2016, a las 2:22 p.m., Samantha Eisner
>>     <Samantha.Eisner at icann.org <mailto:Samantha.Eisner at icann.org>>
>>     escribió:
>>     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.
>>     Best,
>>     Sam
>>     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____
>>     __ __
>>     *HOLLY  J. GREGORY*
>>     Partner and Co-Chair
>>     Global Corporate Governance & Executive Compensation Practice
>>     *Sidley Austin LLP**
>>     *+1 212 839 5853 <tel:%2B1%20212%20839%205853>
>>     holly.gregory at sidley.com <mailto:holly.gregory at sidley.com>____
>>     __ __
>>     ****************************************************************************************************
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