[Gnso-newgtld-wg] PIC/RVC Enforcement
alan.greenberg at mcgill.ca
Thu Dec 17 04:25:24 UTC 2020
Prior to the last meeting, I sent a message giving my reasons for not
being comfortable with ICANN's ability to enforce PIC/RVCs and
particularly those that may involve content.
It was suggested that I review the current redline draft to see if it
does not address my concerns.
I have done so, and I note that it does not address my concerns and
in fact gave rise to a related issue that I had not previously noticed.
1. I still have concern that there is nothing in the recommendations
that forces a registry to select a reputable panel to address
potential violations of PICs/RVCs, and there is nothing that requires
it to pay for such services. The recommendations rely solely on the
PICDRP, a process that can only be initiated if the party filing the
DRP can show material harm from the violation.
It must not be necessary to show harm to ensure that contracts can be
adhered to. Moreover, there should not be a substantive cost for
ensuring that such contracts are honored. If an body external to
ICANN must be used to address contract compliance, such a requirement
must be explcitly required in the contract and we cannot rely on
implementation to ensure that.
2. I am not at all convinced that the statement (a) on page 45 is
correct: "To the extent that existing PICs are used as PICs (or RVCs)
in subsequent rounds, these are specifically "grandfathered" into the
current Bylaws mission."
I presume that this is based on a reading of Bylaws clause
1.1(d)(ii)(A)(2) "any registry agreement or registrar accreditation
agreement not encompassed by (1) above to the extent its terms do not
vary materially from the form of registry agreement or registrar
accreditation agreement that existed on 1 October 2016"
Saying that a contract that is "does not vary materially" is not the
same as saying you can extract tidbits from it and those tidbits remain valid.
Even if my reading is incorrect, it demonstrates that we are making
many assumptions leading to the belief that PIC/RVCs will be
enforceable. All of those assumptions may prove to be valid, and that
is just fine. But *IF* they are not all valid, then the entire
concept of enforceable commitments collapses.
We must make an explicit recommendation saying that if it turns out
that there is a problem enforcing PIC/RVC, the Board must take action
to remedy the problem and such action might need to include Bylaw amendment.
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