Can we have this new language/guidance included in the 3^rd 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.

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

From: <Mueller>, Milton L <milton@gatech.edu>
Date: Tuesday, December 1, 2015 at 3:44 PM
To: "Silver, Bradley" < Bradley.Silver@timewarner.com>, Becky Burr <becky.burr@neustar.biz >, David Post <david.g.post@gmail.com >
Cc: Thomas Rickert <thomas@rickert.net>, Accountability Community < 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] 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>
>
>
>
>
> On 12/1/15, 12:18 PM, "Silver, Bradley"
> < 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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