[CCWG-ACCT] (no subject)
Niels ten Oever
lists at nielstenoever.net
Fri Jan 15 11:28:57 UTC 2016
Dear all,
Great to have this discussion. I have to politely disagree with the
opinion of Samantha, and I also think it is a bit early to start talking
about option C while all legal advice, discussions and work of WP4 and
the CCWG can be summarized as option A (without mentioning of GPI).
Without agreeing at CCWG that we have good reasons not to proceed with
option A, I believe it is not reasonable to move to the option C at the
moment.
First of all it would be great if Samantha could produce some examples
of caselaw or similar examples, because we have done quite extensive
research as well as the Institute for Human Rights and Business and we
didn't find any example of the risk that Samantha is referring to.
Even though we would be working on the framework of interpretation in
WS2, the existing language is very narrow, and the concept of human
rights is not something new at all which would be reinvented.
So before we go back to discussing possible risk, it would be nice to
base our discussions on facts, laws and practice.
In the mean time I would suggest sticking with option A, as suggested in
the draft report.
All the best,
Niels
On 01/15/2016 11:07 AM, Mathieu Weill wrote:
> Seun, Sam, All,
>
>
>
> « option c » is the following :
>
> “Adopt adjusted bylaw language as part of WS1 to clarify that it can
> only be enforced or used in an IRP once the FoI is approved (Such as :
> “This articles becomes effective 30 days after approval of the FoI…”).”
>
>
>
> Best
>
> Mathieu
>
>
>
> *De :*accountability-cross-community-bounces at icann.org
> [mailto:accountability-cross-community-bounces at icann.org] *De la part
> de* Seun Ojedeji
> *Envoyé :* vendredi 15 janvier 2016 06:14
> *À :* Leon Felipe Sanchez Ambia
> *Cc :* ICANN-Adler; Thomas Rickert;
> accountability-cross-community at icann.org; ACCT-Staff
> (acct-staff at icann.org); Sidley ICANN CCWG (sidleyicannccwg at sidley.com)
> *Objet :* Re: [CCWG-ACCT] (no subject)
>
>
>
> 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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Niels ten Oever
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