[Gnso-newgtld-wg] PIC/RVC Enforcement

[Jeff Neuman]

Thanks Alan.

A couple of comments.


  1.  The Board asked us to provide our view as a Working Group on the PICs on a number of items, including enforceability.  And that is what we state in the report; namely, that it is enforceable.  If the Board disagrees, it could either (a) send it back, or (b) implement our view through an amendment through a bylaw amendment.  This can be done at the IRT stage.  We are literally on Content Freeze day and we are not comfortable adding a recommendation that the bylaws be changed.



  1.  The statement "To the extent that existing PICs are used as PICs (or RVCs) in subsequent rounds, these are specifically grandfathered....." does refer to the clause references.  The statement does not say "tidbits of the PICs" or "concepts of the PICs", etc.  It literally states that to the extent that existing PICs are used.  The plain meaning of that text certainly means the PICs as they are currently written.  That said, clarifying it to state (in bracketed text):
     *   "To the extent that existing PICs are used as PICs (or RVCs) in subsequent rounds [without material variation], these are specifically grandfathered into the current Bylaws mission."


  1.  A dispute panel needs to be approved by the relevant parties.  So, if there is a PIC as a result of a settlement between 2 parties, then the 2 parties would "prearrange" for a dispute provider.  We should not assume that those parties will (or will not) select a reputable party.



  1.  For PICs that rely on ICANN to "enforce"; namely those that a Registry makes to satisfy GAC Advice, or an ALAC Objection, etc., then it will be up to ICANN and the registry to pick a dispute provider and put that into the Agreement.  Again, we should not be assuming that the registry and ICANN will pick anything other than a reputable provider.


I hope that makes sense.

[cid:image003.png at 01D6D454.EC617680]
Jeffrey J. Neuman
Founder & CEO
JJN Solutions, LLC
p: +1.202.549.5079
E: jeff at jjnsolutions.com<mailto:jeff at jjnsolutions.com>
http://jjnsolutions.com


From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org> On Behalf Of Alan Greenberg
Sent: Wednesday, December 16, 2020 11:25 PM
To: New gTLD SubPro <gnso-newgtld-wg at icann.org>
Subject: [Gnso-newgtld-wg] PIC/RVC Enforcement

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.

Alan


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