I am going through and making notes about odds and ends that need to be taken care of, and this is on the list J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz> From: <Wilson>, Christopher <cwilson@21cf.com<mailto:cwilson@21cf.com>> Date: Wednesday, December 2, 2015 at 2:08 PM To: David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>>, Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>> Cc: Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Minority statements inclusion in report Can we have this new language/guidance included in the 3rd draft report? And Becky’s side-by-side of the evolution of the Mission statement, which is included in Annex 5, references Becky’s “picket fence” side-by-side, but that document is not included in the report. It should be added to Annex 5 too, no? It is attached. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of David Post Sent: Tuesday, December 1, 2015 5:01 PM To: Burr, Becky Cc: Thomas Rickert; Accountability Cross Community Subject: Re: [CCWG-ACCT] Minority statements inclusion in report I agree. I think Bradley's suggestion (adding "on its face") also works. "... It means that neither a contracting party nor anyone else should be able to bring a case that the language of such agreements is, on its face, ultra vires. ..." That would I think clarify that the IRP should reject an attempt to argue that ICANN's entering into sec. 3.18 was ultra vires; but it preserves the ability to challenge ICANN's interpretation/enforcement of 3.18 (or other provisions) as being outside the Mission. David At 04:09 PM 12/1/2015, Burr, Becky wrote: I think we should get rid of the words “without context” - the material affect test should apply in all cases J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.neustar.biz&d=CwMFAw...> From: <Mueller>, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>> Date: Tuesday, December 1, 2015 at 3:44 PM To: "Silver, Bradley" < Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz> >, David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com> > Cc: Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>, Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Minority statements inclusion in report Do not support. Becky’s original wording is better. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Silver, Bradley Sent: Tuesday, December 1, 2015 3:27 PM To: Mueller, Milton L; Burr, Becky; David Post Cc: Thomas Rickert; Accountability Cross Community Subject: Re: [CCWG-ACCT] Minority statements inclusion in report Suggested tweak – It means that the parties who entered into existing contracts intended (and intend) to be bound by those agreements. It means that neither a contracting party nor anyone else should be able to bring a case that any provisions of such agreements on their face, are ultra vires. It does not, however, modify any contracting party’s right to challenge the other party¹s interpretation of that language. It does not modify the right of any person or entity materially affected (as defined in the Bylaws) by an action or inaction in violation ICANN¹s Bylaws to seek redress through an IRP. Nor does it modify the scope of ICANN’s Mission. -----Original Message----- From: Mueller, Milton L [mailto:milton@gatech.edu] Sent: Tuesday, December 01, 2015 3:02 PM To: Burr, Becky; Silver, Bradley; David Post Cc: Thomas Rickert; Accountability Cross Community Subject: RE: [CCWG-ACCT] Minority statements inclusion in report Acceptable to me, thanks. David? Malcolm? --MM
-----Original Message----- From: Burr, Becky [mailto:Becky.Burr@neustar.biz ] Sent: Tuesday, December 1, 2015 12:29 PM To: Silver, Bradley; Mueller, Milton L; David Post Cc: Thomas Rickert; Accountability Cross Community Subject: Re: [CCWG-ACCT] Minority statements inclusion in report
I have no problem providing additional guidance to the drafters:
What does it mean that the language of these agreements are grandfathered? It means that the parties who entered into existing contracts intended (and intend) to be bound by those agreements. It means that neither a contracting party or anyone else should be able to bring a free standing case that the language, without context, is ultra vires. It does not, however, modify any contracting party¹s right to challenge the other party¹s interpretation of that language. It does not modify the right of any party materially affected (as defined in the Bylaws) by an action or inaction in violation ICANN¹s Bylaws to seek redress through an IRP. Nor does it modify the scope of ICANN¹s Mission.
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz <http://www.neustar.biz<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.neustar.biz&d=CwMFAw&c=QCEPhmH9WJ8wFC_LYDIWIQ&r=_yIH0j711TdLk87MBYWQ4A&m=y1jd_DWq8lA3BfIqokSK1EHrrbMz87a1HJ0t_oP9yXA&s=yTiK8palEQzzhkyHJBKfGtYCsXwxj32jzIaDZ7rKneI&e=>>
On 12/1/15, 12:18 PM, "Silver, Bradley" < Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> wrote:
Milton - who is the "other party" in your suggested amendment below?
-----Original Message----- From: Mueller, Milton L [mailto:milton@gatech.edu] Sent: Tuesday, December 01, 2015 12:13 PM To: Burr, Becky; David Post; Silver, Bradley Cc: Thomas Rickert; Accountability Cross Community Subject: RE: [CCWG-ACCT] Minority statements inclusion in report
-----Original Message----- It means that the parties who entered into existing contracts intended (and intend) to be bound by those agreements. It means that neither a contracting party or anyone else should be able to bring a free standing case that the language, without context, is ultra vires. It does not, however, modify any contracting party¹s right to challenge the other party¹s interpretation of that language. Nor does it modify the scope of ICANN¹s Mission.
This is reassuring, Becky, but I want it to be clear.
Are you willing to add to the current report the following language:
The grandfathering statement, however, cannot be used to modify the scope of ICANN's mission nor to modify any contracting party¹s right to challenge the other party¹s interpretation of contractual language if they think enforcement actions are expanding the scope of ICANN's mission.
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