[Gnso-epdp-legal] "Bad faith" debate and the purpose of EPDP legal committee

[J]

Dear Tatiana, 
Thank you for your mail. In light of your thoughts I would like to provide some clarifications. 
Working in a small group is a method to facilitate the work of the big one. It is expected that the smaller group would trash out major differences and would suggest something that could gather consensus of all. 
Taking into account discussion during the last week’s meeting and subsequent meeting of the Legal subcommittee I had hoped that all outstanding issues would be resolved. The way how discussion evolved took me by surprise. Because I thought all differences were ironed out. 
That said I never said anything alluding to acting in a bad faith. If you had such feeling, I did bad job as a chair. Pls accept my sincere apology. 
As per nature of the subcommittee. Indeed, I proposed to established a legal advisory group where members would act as experts in personal capacity. It was not accepted by the Team. Instead we established a representative legal subcommittee. The aim of both is the same - to make proposal to the Team. But the nature is different. 
Ultimately , the result of the meeting is to continue discussion in the subcommittee to narrow differences and find a solution. 
I am writing this with invitation to continue constructive work for the benefit of ICANN community. 
Again, pls forgive if my words or tone hurt your feelings. It was not meant to be in that way. 
Thank you 
Jk


Sent from my iPhone

> On Jan 23, 2020, at 18:43, Tatiana Tropina <tatiana.tropina at gmail.com> wrote:
> 
> 
> Dear legal committee members, dear Janis. 
> 
> following the accusation of behaving in "bad faith" during today's EPDP plenary call, I want to be able to address them. I can not post on the EPDP mailing list as I am an alternate, but at least I can try to address this issue here.
> 
> I never believed that the mandate of this legal committee was to decide on the policy issues. I always thought that we get together to draft the questions in a meaningful way legally and leave it up to EPDP plenary to decide if they are to be sent at all. I voiced my concern about policy vs. legal issues on the call on Tuesday when the legal committee decided that it will provide explanations as to why the questions were asked, and to me, it sounded that those are explanations to help the EDPD plenary to decide if the questions are to be sent, not the ultimatum decision to send them or not. Otherwise, I would have objected strongly. 
> 
> I want to quote here Janis's email of 31st of May 2019: 
> 
> "The membership of this team is not representative, but expertise based. Members of the Legal Advisory Group are asked to provide advice based on their legal experience, factoring in all aspects of the conversation, not only that of their respective constituency. It is important to state that any output of deliberations of the Legal Advisory Group will be shared with the EPDP Team for review and agreement."
> 
> I believe that the legal committee has been established not to substitute the plenary work, but to help to draft possible legal questions and then leave it to plenary to decide on whether to send them, whether to approve them or object. I tried to clarify this with Leon during the first meetings of the committee whether the plenary had the ultimate say about the questions and their nature and I remember that this assumption was confirmed. 
> 
> If this legal committee is supposed to substitute the work of the plenary and take policy decisions, this is in my opinion not the right way to go, or at least such a shift in its role should be agreed and established by the EPDP plenary.
> 
> Participation in drafting in good faith doesn't exclude the idea of stakeholder group on the call opposing the question per se because it's a policy question in nature.
> 
> In the same way, I can accuse of behaving in bad faith those who try to substitute policy decisions and EPDP plenary decisions by the work of this small group which wasn't supposed to substitute plenary on the first place. I am not sure how this would be helpful, though.  
> 
> Warm regards,
> Tatiana