[CWG-Stewardship] Comments on Comments

[Greg Shatan]

My replies are in-line.

On Mon, Aug 8, 2016 at 1:17 PM, Kavouss Arasteh <kavouss.arasteh at gmail.com>
wrote:

> Grec
> Here is my reply
> I am re-sending these responses to Kavouss's comments to the list with two
> notes:
>
> 1.  The use of "unanimous" in the preamble was discussed. The reason for
> this use is to make it clear that the RIRs must act unanimously as the
> "numbers community" "party" to the agreement.  This is language the numbers
> community feels comfortable with, and it apparently tracks language used in
> the IANA numbers MoU (but I haven't checked). This verbiage may change as
> other alternatives are considered, but the concept remains the same.
>
> Comments
> Read my comments in regard with the use of the term Unanimously.
> If you want to introduce some thing more than of and in addition to
> Collective , at the maximum use " and by consensus " instead of UNANIMOUSLY
> 2
>

​This is the word the RIRs chose to indicate how they operate as a group.
Consensus is not the same thing as unanimity.  It would be absolutely wrong
to say consensus when it is not conensus and it would be a breach of
process and respect for other communities to impose a description of their
process.  The CWG has no business telling the RIRs how to characterize
their process when acting as a group, especially when we would be wrong as
a matter of fact when doing so.​

This may change because the current use is in a "definition" (maybe not the
best place to capture the concept) and it may be better expressed elsewhere
in the document.

>
>
> 2.  In response to the comment on Section 6.5 regarding "joint and several
> liability," in which Kavouss commented that "joint cannot be associated
> with several."  "Joint and several liability" is a fundamental legal
> concept and well-understood term, at least under U.S. law.  Here is a
> definition from the Cornell Legal Information Institute
> https://www.law.cornell.edu/wex/joint_and_several_liability  (one of many
> available on the web):
>
> COMMENTS
> Once again  jointly and severally are incompatible.
> You refer to US Court are different at different cases and can change-
> Thus There no single agreed opinion ,decision or order of a court in this
> regard
>  which could be applied to all cases.MOREOVER, IT DEPENDS WHICH COURT (
> DISTRICT PREMIER INSTANCE, Appeal , or Federal ONES )
> Select another term instead of " severally"
>
> I have had many other comments
> I spent three hours of omy time of unday
> I do expect that people do not insist on their wrong vision
>
> please kindly reconsider the matter and accept two of my recent
> alternative proposal plus my other proposal
>

​Kavouss, "joint and several liability" is an absolutely standard concept
of liability under US law (i.e., so-called "black letter law").  There is
no point in trying to build a case otherwise.  It is completely understood
and well-settled regardless of the court or jurisdiction in the US.  While
parties may dispute how to apply the concept in a given case's fact
pattern, and due to the fact that the US is a common-law jurisdiction and
precedent has a great deal  of influence, interpretation may differ
slightly from jurisdiction to jurisdiction, the concept is well-settled and
term is completely standard.  In any event, the agreement is governed by
California law and any issue of interpretation would be governed by
California law.

I have reconsidered these suggestions but I see no reason to change my
opinion of them.  I'll send this and your prior communications to the
Client Committee list, but I don't expect any disagreement.

I want to be clear that I am not insisting on any personal vision or
concept here; rather I am looking at these issues with the best interests
of the ICANN community at heart.  I'm also relying on the fact that I have
been a practicing lawyer since 1986 and I've learned a few things since
then, as well as at Columbia Law School, where I was a Harlan Fiske Stone
Scholar and the Editor-in-Chief of one of the law journals.

I agree with your statement "I do expect that people do not insist on their
wrong vision" and hope that it will be applied here.

Greg



> Regards
> Kavouss
>
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