[Gnso-newgtld-wg] PIC/RVC Enforcement

Alan Greenberg 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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