[Ccpdp-rm] NOTES | ccPDP3-RM | 19 May 2021 (20 UTC)

[Joke Braeken]

Dear All,

Here are some high-level notes from the discussions today at the ccPDP3-RM meeting on 19 May at 20 UTC.

Best regards,

Joke




  1.  Welcome and roll call

Welcome by Chair Stephen Deerhake



2.                   Administrative announcements, if any

ccPDP3-retirement: Report soon for consideration by council. First Council needs to decide on the separation, then Council can review the recommendations, and possibly adopt. Once that is done, the ccnso membership needs to vote. Voting for ccPDP3 is expected to start around 6 July.



a.                   Action items

None



3.                   Principles | review options, processes, etc. after discussion with ICANN Legal

Low cost and effective: preference from the previous meeting.

Bernie: Binding section.
IRP: binding, but in a narrow sense. Board can still ignore, if in the interest of the corporation.
Question regarding “repose”. Similar to this point of being binding for at least 3 years. Icann was accommodating in other areas, but not here.
That item will decide how we go forward.
There is an opportunity for binding, but not through these mechanisms.
If we decide to go another way than binding, we will probably get flexibility for other points. Probably a mechanism which we do not have right now. Key decision, which will dictate how we work. To be discussed.
Eberhard: language of the RFC is clear. Decisions are binding. We are making a proposal for ICANN. If the board cannot do it, we will see. First opening of the round of negotiations. A no in the 1st round does not mean anything. Do not lower our expectations, because icann legal will flex its muscles. If icann legal says it cannot be done, Eberhard does not wish to continue.
Stephen: another reason for continuing the conversation with ICANN legal. Any thoughts or input?
Eberhard: courts - binding. But smaller ccTLDs cannot avail themselves of this, because they do not have the resources. Should be fair to all parties involved, but we should strive for binding. It depends what binding means.
Bernie: icann legal said that binding is not going to work. Binding in the IRP is maybe not what we think binding is. Argument similar to this in the review of the IRP. We can proceed as this. One of the points is that we can try. The shape of a review mechanism with a binding recommendation for icann is different than a review mechanism which is not.
Keep it simple and low cost, means: keep the lawyers away. IRP cases are reaching into the millions of dollars for both sides, including for ICANN.
Eberhard: why are we doing this?
We are ccTLDs. We make policies for ccNSO members. Starts to feel uncomfortable.
Bernie: benefit from experience in other areas. This group can decide the way it wants to do things.
Allan: we are extremely well served by you Bernie. I believe you are acting in good faith. We should spend some time on this, and understand each other clearly.  Could you elaborate on what binding means to Eberhard? Perhaps think about asking questions in writing to ICANN?
Stephen: binding vs non binding is something we need to hash out.
Peter: confidence in all, especially in staff involved in this.
If we end up in a roadblock situation, what solutions are on the table? Other committees have consulted external legal advisors. Is that an option? Not because we do not trust icann legal, because there is a conflict in goals there. At what point do we need to go back to Council, and inform them we have a problem?
Stephen: which council?
Peter: ccNSO Council
Bernie: asking lawyers. This is not law we try to interpret. They have to look at how icann is structured and what can and cannot be done. In WS1 we had lawyers involved. High level. They spent time looking at elements, in a context where the bylaws were going to change. We would need to ask lawyers who are comfortable with icann. In the end it is the board that decides at icann, until a judge decides otherwise. One of the key elements for this group to decide.
Eberhard: what does binding mean?
My comment is nothing personal to you. The decision binds both parties. Example transfer Mali. wrong decision, but the ccTLD manager has no alternative than going to court. There must be a different avenue. Prevent icann from violating its own bylaws of the RFC as interpreted by FOI. We should be ambitious in our request.
Allan: do not want to go to a process until the end, and then being stopped. What would be the acceptable second best option?
Stephen: engage again with icann legal. Formal polling of icann legal? Definition of what this group defines as binding, and then get response from icann legal
Eberhard: ok. As a second step. First review the material that is available. We have lawyers in this group. Then we can talk to icann legal. Perhaps to set up a subgroup with legal knowledge?
Bernie: approach. Before we go to icann legal, a small group looks at available material. Is that the sydley memo?
Bart: That was the note sent by Sam. sydley note they prepared during the transition discussions. Scope of fiduciary responsibilities. Was not from icann legal. Circulated on 16 march.
Eberhard: material developed during the accountability process. Work that can inform our discussion. Fundamental fairness.
Stephen: memo by Sydley and Adler. Work stream 1 process. The question is how this memo was incorporated into icann version oct 2016 bylaws.
Bernie: staff can peel out relevant sections and prepare a topic paper for this group. First the full group, if needed potentially a legal subgroup, to look at it, and once the full group agrees, go back to icann legal.
Maarten: did not hear full discussion. Is available for the small group. Ready to work with Nick. puzzled. Was on the iana WG at the time when the lawyers came up with the memo. Surprised they say now it is impossible. Needs a deeper dive. Too simplified for now.
Bernie: sub group starts? Should staff pull together something first?
Eberhard: staff to prepare a list of available docs with summary of why it is relevant. And then the fill group to decide whether or not have sub group
Allan: staff should not summarise complex legal opinions. Bring info together. Too much of a challenge to ask for a summary
Bernie: staff would not provide an opinion
Stephen: agrees with Allan. Group should look at this from a timeline basis. What was excluded from that memo, into the final thinking, in what became the bylaws?
Bart: we know where to look in the archives. By the next meeting we will come up with a first batch of documents. See how the group wants to proceed. We could provide context on when the document was produced, so you have an understanding. Suggest we already start looking at other topics in the meanwhile, otherwise we loose valuable time. Suggests to have a small group looking at this.
Eberhard: supports both suggestions.
Bernie: Staff will gather the relevant document by the next meeting. Potentially to form a sub-group. Objective will be to frame a question(s) for icann legal on “binding” in the context of those documents.
Bart: nice conclusion. We have a way forward. Not a good idea to continue now.



4.                   Next meetings

2 June | 20:00 UTC
Policy Session at ICANN71 | 16 June 10:30-12:00 UTC



5.                   AOB

None



6.                   Closure

Thank you all.



Joke Braeken
ccNSO Policy Advisor
joke.braeken at icann.org

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