[CWG-Stewardship] Comments on Comments

Tue Aug 9 08:51:50 UTC 2016

Dear Chuke 
Tks for yr message
No one , no natter member of what committee, is spokeman of GOD.
I do not agree with someone who repeatedly referred to a set of law of particular country or talking about  a decision. Opinion or verdict if a court while no one is aware of the background of the subject , circumstances in which the court examined the case and so on.
We know what we have to know.
We do not need teacher
By the way being member of many group does not provide any additional right to anyone to prevent others  to comment or to impose her or his views to others
He always refer to court practice?!!'n what court?
Tks again for your words
Kavousd  

Sent from my iPhone

> On 9 Aug 2016, at 06:53, Gomes, Chuck <cgomes at verisign.com> wrote:
> 
> Kavouss,
>  
> While I agree with you that Greg is one member of the CWG just like the rest of us who are members, I think it is important to recognize that he is part of the CWG Client Committee and also part of the IPR group representing the CWG.  In those roles he has an important responsibility to report back to the full CWG the actions and decisions of those groups including explaining why those groups made certain decisions. That doesn’t alleviate our responsibilities as CWG members of fully considering the information he reports but I think it is unfair on your part to be so critical of him when he is doing what we expect him to do.
>  
> Chuck
>  
> From: cwg-stewardship-bounces at icann.org [mailto:cwg-stewardship-bounces at icann.org] On Behalf Of Kavouss Arasteh
> Sent: Monday, August 08, 2016 4:40 PM
> To: Lise Fuhr; Jonathan Robinson; cwg-stewardship at icann.org
> Subject: Re: [CWG-Stewardship] Comments on Comments
>  
> Dear distinguished and respectful Co- Chairs
> 
> Since yesterday, 07 August around 18, 00 UTC till today, 08 August 20126, among some 60 messages exchanged, I have sent more than 20 message, trying to express my comments7 views on the draft agreement.
> 
> Someone, who claimed to represent the entire ICANN Community, repeatedly and categorically opposed to my comments referring to a Particular Country law and particular cour and particular individual attempting to provide supports with his views.
> 
> This person, like me is a simple participant in CWG and does not hold any representation from any group due to the fact that such representation does nor prevails in the process..
> 
> I do not know his duty and his responsibility. Apparently he speaks for everybody.
> 
> I have made some valid comments but he rejected that in arguing that the text agreed by such and such community.
> 
> If that is the case, then what is the usefulness and utility and existence of CWG.
> 
> Those community could get together and agree with each other without corrupt the CWG reputation and prestige.
> 
> We are not under any particular law regime not any particular court. This is an international, open transparent. Button –up multistakeholder process which should take into account all views
> 
> I DO NOT AGREE WITH ANY VOTING PROCESS as the CWG chatter normally prohibits that.
> 
> Some people might have particular Agenda to support particular views. This must be discouraged.
> 
> This should be an open, transparent and healthy process. Any proposal must be debated and agreed upon by consensus WITHOUT ANY RECOURSE TO VOTING OR POLL.
> 
> Your duty as co – chairs are incumbent to you to consider all proposals no matter who makes that proposal and without any political polarization.
> 
> I have spent many many hours to study and make comments as well as to reply to many unjustified objections
> 
> Now the ball is in your camp to organize a call and discuss the matter.
> 
> In that call you are expected to allow everyone to freely express its views.
> 
> The objective is to find a consensus solution and not voting
> 
> Regards
> 
> Kavouss  
> 
>  
> 2016-08-08 22:31 GMT+02:00 Greg Shatan <gregshatanipc at gmail.com>:
> Responses inline:
>  
> On Mon, Aug 8, 2016 at 3:50 PM, Kavouss Arasteh <kavouss.arasteh at gmail.com> wrote:
> Grec,
> It is couter productive to exchange any views with you.
>  
> I'm sorry you feel that way.
> 
>  
> You take yourself as representing the entire community 
>  
> I never said that.  On the other hand, you said I was acting out of a particular "vision" so I needed to refute that.
>  
> having participated or drafted 800 legal VIEWS ,who care about it
>  
> I said I've participated in over 800 transactions, many with multiple agreements being negotiated and drafted.  If you don't care about experience or knowledge, that's your prerogative.
>  
> You just MAY SPEAK ON YOUR OWN BEHALF AND EVEN NOT ON BEHAF OF ANY OTHER ENTITY INCLUDING IPC
>  
> I never said I was speaking on behalf of anyone but myself.  There may be times when I speak on behalf of the IPC, but this (entire subject) is not one of them.  On the other hand, my purpose is to speak and act in what appear to be the best interests of the community.  I didn't want any confusion about that. 
>  
> THERE IS NO PROXY IN THIS PROCESS.
> I prefer NOT TO REPLY TO YOUR MESSAGE since you have no logic but insistance.
>  
> I think my responses to your comments were quite logical and well-informed.  You've complained that no-one responds to your comments, yet you tar-and-feather someone who does.  That is no way to encourage further engagement with your opinions.  If you prefer not to reply to my message, that's also your prerogative.  I may take that prerogative as well, and let your comments die on the vine.  I think I've been more than fair in dealing with them.
> .
> I do not know who is " your lawyers.?
>  
> I do not have any lawyers.  The CWG, however, has lawyers: Sidley Austin, led in this particular case by Josh Hofheimer, an experienced IP and Technology Transactions partner in their Silicon Valley and Los Angeles offices, with the support of experienced transactional and IP lawyers, several of whom, like Josh, have been advising the CWG and the CCWG for nearly two years.  I thought you knew this by now.
>  
> The process is a collective one and there is not " our lawyers " nor your lawyer,
>  
> Please see above.
>  
> You do not accept any compromise.
>  
> I accept compromises all the time, and many in this CWG.  As a transactional lawyer, one can't close deals without compromises.  As such, this document represents compromises among the several communities.  However, one can't compromise just for the sake of compromising.  There needs to be merit in the position proposed and merit in any compromise position -- and in this case it needs to be of sufficient merit that it's likely to convince the other operational communities and the IETF Trust to adopt the change.  I did not see anything sufficiently meritorious in either category.  For example, arguing that "joint and several liability" is not a standard concept of US law has no merit, and there is no meritorious compromise between saying "joint and several liability" (which has a well-settled and well-understood meaning) and saying some other thing, which has no well-accepted meaning.  Joint and several liability simply means that all of the parties are jointly liable for the amount in question, and each party is liable for the full amount (but not allowing for duplicative recovery); this allows for full recovery by the plaintiff even where some defendants can't pay toward the recovery.  There's no reason to choose any other way to say this.  In legal drafting, it's important to use well-settled terminology that will not be ambiguous when interpreted.  The use of such "terms of art" can be weighed against the use of "plain english" for readability by non-lawyers, but these are judgment calls in drafting.  I see no reason to change a clear and well-known term of art just because you refuse to acknowledge that "joint and several liability" is a well-settled phrase for a standard legal concept.  And I see no chance that anyone could convince the other drafters of this document to make that change.  Finally, I would note that this phrase is being used only in connection with the relationship between the RIRs and the IETF Trust, so it's relevance to this group is questionable at best.
>  
>  
> You insist on what has been dictated to you .
>  
> Nothing has been dictated to me.  I'm not entirely sure what this means, but I've made every choice here out of my own free will, including the rather Quixotic choice to continue to engage with you.
>  
> It may be better not to REPLY TO YOUR MAIL
>  
> Again, that's your preregative.  I'm not sure how that serves to convince anyone of the merits of any of your changes.  I tend to think it does the opposite.
>  
>  
> Have nice and enjoyable afternoon
>  
> Have a good evening.
>  
>  
>  
>  
> 2016-08-08 20:18 GMT+02:00 Greg Shatan <gregshatanipc at gmail.com>:
> 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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