[CCWG-ACCT] On IRP subgroup summary being presented at Johannesburg

[James Gannon]

From the peanut gallery, I cannot believe that we are having this conversation after the last 2 years of what we went through.


Full agreement with Greg.


-James

________________________________
From: accountability-cross-community-bounces at icann.org <accountability-cross-community-bounces at icann.org> on behalf of Greg Shatan <gregshatanipc at gmail.com>
Sent: 25 June 2017 12:37:20
To: Sivasubramanian M
Cc: CCWG Accountability
Subject: Re: [CCWG-ACCT] On IRP subgroup summary being presented at Johannesburg

​Workstream 1 spent a huge amount of time on ICANN's Mission, Commitments and Core Values.  What we now have is result of many many discussions about the scope of ICANN's Mission.  Whether or not you agree with all the elements (and I don't), if you respect the process (imperfect though it may be), you need to respect the result.​  Discussions of expanding Article 1 are tantamount to asking for another bite at the apple within the same Working Group.

Greg

On Sun, Jun 25, 2017 at 1:24 PM, Sivasubramanian M <isolatedn at gmail.com<mailto:isolatedn at gmail.com>> wrote:
Expand Article 1 ????

On Sun, Jun 25, 2017 at 12:33 PM, Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>> wrote:
This is a distinction without a difference.  ICANN's Mission is set forth in Article 1 of the Bylaws.  Thus, if ICANN exceeds its Mission, it contravenes its Bylaws.

Greg

On Sun, Jun 25, 2017 at 11:55 AM, Sivasubramanian M <isolatedn at gmail.com<mailto:isolatedn at gmail.com>> wrote:
Dear Malcolm


Thank you for explaining the context. But I was actually trying to take this reference to mission and bylaws somewhat beyond the immediate context. ICANN's mission at a Global entity operating in Global Public Interest ought not to be straight-jacketed. If limited, ICANN would be severely restrained from doing what it takes to care for the DNS. Section 4.3 needs an amendment, even if it is late into the work stream to make this suggestion, as IRP ought not to be restrained by this limited view of ICANN's mission. The task before the IRP is to examine if ICANN CONTRAVENED its bylaws and not if it EXCEEDED its mission.

Sivasubramanian M

On Sun, Jun 25, 2017 at 9:46 AM, Malcolm Hutty <malcolm at linx.net<mailto:malcolm at linx.net>> wrote:
On 25/06/2017 08:26, Sivasubramanian M wrote:
> Hello
>
> Unless there are unspoken and unseen merits, I have some concerns on
> some aspects of the summary:
>
> 1.  The idea of constraining ICANN to its bylaws figures very
> prominently in the summary, defined as one of the pillars, not really a
> supportive pillar, but sort of a not so well thought of negative
> command, " Don't allow ICANN to exceed its mission"

David was attempting to summarise a very long and extremely complex
instrument, which was negotiated in detail as part of WS1/transition
negotiations.

I believe David may have been referring in the "pillars" to section 4.3
(a) of the bylaws which sets out the "purposes of the IRP".

This says, in part,

"The IRP is intended to hear and resolve Disputes for the following
purposes ("Purposes of the IRP"):

(i) Ensure that ICANN does not exceed the scope of its Mission and
otherwise complies with its Articles of Incorporation and Bylaws.

[....continues]"

Moreover, we need to remember that the IRP is only available under
specific circumstances. Essentially (and this may be a slight
oversimplification), to use the IRP you have to be making a claim that
ICANN breached its own bylaws, not merely that you would have preferred
it acted differently. The extent of the Mission (which is broad, but
clearly limited) and the instruction to act only within the scope of
that Mission, are both set out in the bylaws. So the above extract
should be understood in that context.

Does that provide sufficient context to David's remarks?

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Sivasubramanian M<https://www.facebook.com/sivasubramanian.muthusamy>

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