[CWG-Stewardship] Concern with Contract Co.

[Greg Shatan]

Milton,

I think you have this exactly right, both in the framework and the
underlying motivations.

Mary (and others who have raised issues around the need for contracts and
entities)

Some important basic legal points:

1.  An MOU is a contract.  It may leave more to the imagination than a
longer, more detailed document, but it is a contract.  Proposing an MOU
does nothing to move us away from having a contract.  Generally, all you
need to have a contract between two parties (more on that in a moment), is
an offer, the acceptance of that offer, some form of "consideration" (quid
pro quo or "this for that") and the intent to enter into a binding
agreement.  If you have these four things, you will have an enforceable
contract.  This is of course very high level, and there are many nuances,
qualifications, details, exceptions, etc. (one could spend a lifetime on
the subject, if one wanted), but these are the basics.  On the other hand,
if you don't have these things, you don't have a contract, and you have
nothing that binds the parties to perform their duties and obligations and
nothing that can be enforced -- a party can fail to perform and walk away
without consequences (as a legal matter).  Again, these are the basic
concepts.  So -- if you want something that is not a contract, what you end
up with is something that is not a promise and that can't be enforced if a
party fails to perform.  And why would you want that here?

2.  Getting back to the concept of "parties" to a contract: only "natural
persons" (that is, people) and *l*egal entities can enter into contracts.
Corporations and partnerships are legal entities; communities and
committees are not legal entities.  Therefore, communities and committees
cannot enter into contracts.  A legal entity of some sort is needed if a
contract is to be entered into.

3.  Finally, if you have a legal entity, it has to be "domiciled" in some
jurisdiction, whether we are talking about a Delaware limited liability
corporation or a French societe anonyme (apologies for lack of accents).
So there's no getting away from jurisdiction.  Again, this is general, but
these are the basic concepts.

In sum, if we want promises from ICANN that can be enforced -- a key type
of accountability -- we need a contract and an entity that is capable of
entering into that contract, and that entity will have some jurisdiction as
its domicile.  Other than contracts (which can be thought of as private
"laws" between the parties), the only other way to regulate behavior in a
legally enforceable way is through laws and treaties (which can be thought
of as contracts between nations) -- and I don't think we should go there
for many different reasons.

Hope this helps us stay out of these particular weeds.

Greg Shatan
[Caveat: Not legal advice (of the sort that creates a lawyer/client
relationship)]



On Sat, Nov 29, 2014 at 10:18 PM, Milton L Mueller <mueller at syr.edu> wrote:

>  Hi, Mary.
>
> No, if you believe that the Contract Co. is “another ICANN” it is a
> misperception. The idea for a Contract Co. was not mine, but the people who
> came up with it told me that the whole point of creating Contract Co. was
> to avoid creating something like ICANN that could grow and possibly spin
> out of control. And by separating PRT from Contract Co., we can also ensure
> that the PRT does not become a monster. Indeed, I think your idea of a PRT
> drawn from the ICANN community holding the contracting or MoU power over
> ICANN is far more dangerous than the current model. The PRT is temporary
> and multistakeholder and the contract Co. does what the PRT tells it to do
> at a particular time, that is my understanding. I think it seems like a
> good way to avoid some of the potential problems associated with replacing
> the NTIA. Others can speak up if they think I got it wrong. How this works
> legally? I will let the lawyers explain. J I don’t know. I will say that
> it makes no sense to oppose the current model because you don’t want to
> create another corporation in the U.S. or because it is creating “another
> ICANN.”
>
>
>
> *From:* Mary Uduma [mailto:mnuduma at yahoo.com]
> *Sent:* Saturday, November 29, 2014 6:14 PM
> *To:* Milton L Mueller; Greg Shatan; Avri Doria
> *Cc:* cwg-stewardship at icann.org
> *Subject:* Re: [CWG-Stewardship] Concern with Contract Co.
>
>
>
> Thank you Milton for responding to my comments.
>
> See my further comments below
>
>
>
> On Saturday, November 29, 2014 7:09 PM, Milton L Mueller <mueller at syr.edu>
> wrote:
>
>
>
> Mary,
>
> Appreciate your comments but I cannot make sense of some of your
> arguments. Specifically,
>
>
>
> Contract Co:  the jurisdictional questions as had been raised in this
> thread makes it less attractive as the way to go.
>
>
>
> MM: I’m sorry, but this doesn’t make any sense to me. There is no
> avoidance of jurisdictional issues. If there is no Contract Co. and ICANN
> controls the whole process directly, which is want Olivier and Alan want,
> then the jurisdiction is the United States. Decisions _*must*_ be made
> about jurisdiction, and the creation of a Contract Co. actually gives us
> more flexibility about this than the status quo. Let me also remind you
> that with the U.S. Congress looking over NTIA and a lame-duck Presidency,
> altering the jurisdiction of ICANN itself is simply not feasible at this
> juncture.
>
>   Mary: Exactly  my point, we should not create another corporation in
> the US rather deal with the existing ones and
>
> have a truly multi-stakeholder  body to replace the NTIA stewardship
> position.  I do not agree  with you that the Internet Community needs a
> parallel ICANN for the IANA functions.  I believe that changes should be
> minimal since it is working well.
>
>
>
>
>
>
>
> Question: Is this a multi-stakeholder entity?
>
>
>
> MM: The answer is simple. Yes. Contract Co. gets its instructions
> directly from PRT, which is multistakeholder.
>
>
>
> Mary: It does not still make it a truly Multi-stakeholder entity. PRT  I
> can understand, perhaps, it might be helpful for you to explain further how
> Contract Co will function without  a Board, Directors or Staff. who will
> answer to the licensing/registering authority?  Are there no minimal
> requirements for incorporating a Co? What of the Bylaws for Registration? .
>
>
>
> General acceptability by the internet community may be difficult to sell
> considering the heightened awareness in most governments ( ie ccTLDs)
> regarding the IANA relationship and the position of NTIA in representing
> governments in the functions.
>
>
>
> MM: I think you are fundamentally misunderstanding the proposal before us.
> Contract Co is just a shell that does what the PRT tells it to do. If you
> are looking at it as some kind of
>
>
> Mary: Would promoters of the corporation come from the mutli-stakholders
> (acting on equal footing) of the  internet community?
>
>
>
> I believe a less legal formal entity operating a bottom up process would
> not only meet the NTIA requirements but also give the internet community
> the opportunity to be part of the MoU agreement with IANA functions
> Operator.
>
>
>
> MM: I don’t understand this. PRT is representative of the Internet
> community. What is the difference between an MoU and a contract, except
> that an MoU is legally weaker and less separable?
>
>
>
> Mary: PRT is not Contract Co. I believe PRT  can serve as a replacement
> of  NTIA with  a legally  weaker Agreement in order to  promote the true
> Multi-stakeholder entity.
>
>
>
>
>
>
>
> Who is the ultimate supervisor (Regulator) of this entity? - US government?
>
>
>
> MM: Again I do not understand where you are coming from and think that you
> may be fundamentally misunderstanding the proposal. The whole point of this
> proposal is to get the unilateral authority of the US government out of the
> system completely.
>
> Mary:  I am sorry if I do not understand the proposal, but it seems to me
> that we are creating another ICANN in the name of Contract Co. There are
> some unanswered questions regarding the Contract  Co that need further
> clarifications.  An MoU  between the Multistakeholder entity and the IANA
> operator would serve our purpose of getting the unilateral authority of the
> US government out and the authority of the  internet community in.
>
>
>
> My views.
>
>
>
> Mary Uduma
>
>
>



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