[CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11

[Paul Rosenzweig]

Dear Kavouss

No IRP will review GAC advice.  But the community did agree (overwhelmingly)
that IRP review would apply to Board decisions in response to GAC advice,
which is, of course, exactly what Malcolm posits ...

Paul

Paul Rosenzweig
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-----Original Message-----
From: Kavouss Arasteh [mailto:kavouss.arasteh at gmail.com] 
Sent: Monday, January 25, 2016 9:45 AM
To: Malcolm Hutty <malcolm at linx.net>
Cc: Greg Shatan <gregshatanipc at gmail.com>; Paul Rosenzweig
<paul.rosenzweig at redbranchconsulting.com>; ICANN <ICANN at adlercolvin.com>;
Thomas Rickert <thomas at rickert.net>;
accountability-cross-community at icann.org; acct-staff at icann.org; Sidley ICANN
CCWG <sidleyicannccwg at sidley.com>; Greeley, Amy E. <AGreeley at sidley.com>;
Grapsas, Rebecca <rebecca.grapsas at sidley.com>
Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11

Dear All,
Perhaps people totally forgotten that NO IRP SHALL BE INVOKED BY THE
COMMUNITY. 
FOR GAC ADVICE.
This has been discussed  and confirmed .pls refer ti WP 2 and CCWG previous
NOTES and REPORTS Regards Kavouss

Sent from my iPhone

> On 25 Jan 2016, at 10:57, Malcolm Hutty <malcolm at linx.net> wrote:
> 
> 
> 
>> On 24/01/2016 21:32, Greg Shatan wrote:
>> Paul,
>> 
>> I was halfway through writing an email that said exactly that.  
>> 
>> This may be due to the lawyers re-interpreting "duly taken into account"
>> in a way that I don't agree with and which I think is incorrect.
> 
> I also agree that this would be a substantial change.
> 
> To support that, I would ask you to consider the follow, not unlikely, 
> scenario.
> 
> The GAC has advised the Board to do something, but what it has advised 
> is not entirely clearly, and there is certainly ambiguity as to how it 
> might be implemented. The Board has then done something. A materially 
> affected party, unhappy with the Board's action and preferring an 
> alternative that would take a more extreme view of the GAC advice, 
> challenges the action in the IRP. The Board takes the view that it has 
> taken the GAC's advice into account and that what it has done is 
> reasonably consistent with the GAC advice; the complainant argues that 
> the action was not consistent with it.
> 
> If the IRP finds that factually the complainant is correct to allege 
> that the Board's action was not consisistent with the GAC advice, what 
> is the consequence of that? It seems to vary according to which 
> standard we choose:
> 
> - If the current standard applies, that the Board "duly take into 
> account" GAC advice, the IRP may still find that the Board did do that:
> since they noted the GAC's advice, considered it, and believed (albeit
> incorrectly) that what they were doing constituted a reasonably 
> implementation of it, it is hard to say they did not meet this standard.
> The IRP will however order the Board that to bring itself back into 
> compliance with the bylaws it must notify the GAC that it has acted 
> inconsistently, and try to find a mutually acceptable solution. The 
> action, however, may stand: a solution need not necessarily involve 
> cancelling the action, but might be found through supplementing the 
> action with another.
> 
> - If Holly's standard applies, that the Board "must not act 
> inconsistently" with GAC advice, then the mere finding that the Board 
> has acted inconsistently invalidates that decision. The action must be 
> quashed, if it is possible to do so; failure to do so would consistute 
> perpetuating the bylaws breach.
> 
> This is a material change, that may significantly affect the outcome.
> 
> Personally, I do not believe this change is needed or desirable. For 
> that reason, I respectfully disagree with accepting Holly's advice on 
> this particular case.
> 
> Kind Regards,
> 
> Malcolm.
> 
> -- 
>            Malcolm Hutty | tel: +44 20 7645 3523
>   Head of Public Affairs | Read the LINX Public Affairs blog London 
> Internet Exchange | http://publicaffairs.linx.net/
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