On 19/01/2016 23:39, Burr, Becky wrote:
I don’t see how this is ICANN deciding what constitutes a bank. An applicant proposed a definition - you need a license that has the following characteristics - and ICANN accepted the applicant’s commitment to limit registration to entities possessing the necessary credentials.
Milton and I appear to have diverged, but speaking for myself, I think your reasoning is problematic, Becky. If the justification were that "the applicant proposed the definition", then you devolve to the Shatan position that ICANN's Mission extends to pursuing anything an applicant proposes. I don't think that is sustainable. The better reasoning is that what the applicant proposed in this case is (1) that .bank be limited to legitimate, recognised banks in the financial sense; and (2) that we recognise who falls into that category by whether they have a banking license and that item 1 is a legitimate choice as an exercise of ICANN's authority within its Mission, and that (2) is an objectively reasonable definition for ICANN to adopt as part of implementing that choice. I'd also like to note the opinion of our independent counsel on this issue. They have just advised, in the context of ICANN's Mission in respect of IP addresses, that it is inappropriate to craft ICANN's Mission by reference to an external document that might (conceivably) change, namely the ICANN-RIR-NRO MoU - even though that document is highly stable and most unlikely to change. How much worse must it be to delimit ICANN's Mission by reference to a myriad of registry contracts, including innumerable ones yet to be written. Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd Monument Place, 24 Monument Street, London EC3R 8AJ Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA