[Ws2-guidelines] FW: Response from ICANN Legal questions from Guidelines For Standard of Conduct...Subgroup

[Lori Schulman]

Dear Subgroup,

I hope that you are readjusting from Hyderabad.  I am in the midst of my organization’s leadership meeting after trying to recover from the Hyderabad “bug” that seemed to grip many of us.   Attached and pasted below for your convenience is ICANN Legal’s response to our query about any potential legal conflict.  The answer makes sense to me.   I may reach out directly to Samantha Eisner to discuss possible solutions to our drafting conflicts with regard to sticking with the WS1 principle of allowing the community to remove Board members for any reason and creating guidelines that demonstrate good faith and protect the community for the purposes of triggering the indemnity.  I am also going to take some time before our meeting next Wednesday to see if I can revise our draft based on the comments received in Hyderabad.  I would welcome more input especially to part 2 of the draft.  So far, I have heard from Sam and Robin.  Thank you.


There has not been any conflict assessment of this issue, and indeed no conflict arises.

The ICANN legal team does not report to the Board.  The ICANN legal team's obligation is to the organization and to uphold the Bylaws.  The ICANN Bylaws now include a right of the community to directly remove Board members, and also allow for, at Section 20.2, the indemnification of community members who participate in good faith in those removal proceedings.  It is ICANN's obligation to uphold that Bylaw.

Providing guidelines to the community on what "good faith" could mean in these circumstances was recommended by ICANN.  It is of benefit to all - the ICANN community, board and organization, to understand and agree upon what conduct is appropriate in these circumstances.  This is a collective - and not an adverse - effort.  The guidelines developed by the community are not expected to be overly burdensome or restrictive, but to provide some path of "if you do x​ while participating in the conversation, that tends to demonstrate good faith".

There could be concerns, of course, depending on how the guidelines are drafted, as to whether they meet the requirements of law.  For example, a guideline that suggests that "good faith" participation allows willful avoidance of facts (which, of course, is not part of the group's deliberations to date) should not be acceptable to any attorney reviewing the document, whether they are with ICANN's legal department or external.  It will also be very important to understand if the ICANN legal department identifies any potential legal issues with the text as drafted, as that could impact whether the Board is in a position to accept the recommendation based on issues of legality.

We recommend, as a starting point, that the guidelines be presented to the ICANN legal department for review. If it were to occur that the ICANN legal department raises a challenge to any of the guidelines, and it is believed by those participating in the discussion that there would be a benefit to obtain additional advice or a different viewpoint, that might be an appropriate point for reference to external counsel.
—
Samantha Eisner
Deputy General Counsel, ICANN
12025 Waterfront Drive, Suite 300
Los Angeles, California 90094
USA
Direct Dial: +1 310 578 8631



Lori S. Schulman
Senior Director, Internet Policy
International Trademark Association (INTA)
+1-202-704-0408, Skype: lsschulman

From: Karen Mulberry [mailto:karen.mulberry at icann.org]
Sent: Tuesday, November 15, 2016 7:01 PM
To: Lori Schulman <lschulman at inta.org>
Cc: León Felipe Sánchez Ambía <leonfelipe at sanchez.mx>; Mathieu Weill <mathieu.weill at afnic.fr>; Thomas Rickert <rickert at anwaelte.de>; ACCT-Staff <acct-staff at icann.org>
Subject: Response from ICANN Legal questions from Guidelines For Standard of Conduct...Subgroup

The original message is attached because it is signed.
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