Hi, While I agree with the principle that commitments need to be voluntary and the coercion is reason for contract nullification, I also think it is a matter of law to define coercion. I would also argue that the PICs, the example under discussion, were not a matter of coercion, certainly not in any criminal sense. Not everyone made such commitments and those did go forward. On those commitments that were imposed after the policy and initial contract had been set and then changed for the so-called regulated industries, while I deplore the fact that those were set without proper ICANN process and would consider it a process error, I do not believe that this was coercion. For better or worse, this sort of back and forth of requirements is a normal part of contract negotiation. The applicants could have refused and fought it. They made a business decision that for financial reasons made sense to them and then decided whether to fight or sign. I also do not agree that PICs necessarily constitute mission creep, whatever that might actually mean - Yet Another Undefined Term (YAUT) and something that is in the eye of the beholder, or a possible future IRP. On PICS, I think the problem is a process error and one that could, in the future, be challenged based on the Articles change on requiring bottom-up multistakeholder process based decisions. Something like this could become a IRP action in a possible future, assuming we succeed in this accountability process. avri On 15-Jan-16 09:16, Matthew Shears wrote:
+ 1 Paul, Malcolm, Robin
On 14/01/2016 17:35, Robin Gross wrote:
I agree with Paul and Malcolm regarding so-called ‘voluntary’ commitments. We can limit the pressure on ICANN to expand its mission by not creating a loophole in the accountability structures that allows mission creep. And I agree that the limiting principle is a key foundation for our work.
Robin
On Jan 14, 2016, at 9:03 AM, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote:
I share Malcolm's view of voluntary commitments. Leaving aside what may have gone before, allowing the parties to an agreement to contract around binding limitations on their action would, effectively, nullify the Mission-limitation principle that is at the core of the accountability structure we are building. I can live with grandfathering in prior mistakes in this regard, if I have to, but it is essential that the line be drawn for future actions in stone, not sand.
Cheers Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key
-----Original Message----- From: Malcolm Hutty [mailto:malcolm@linx.net] Sent: Thursday, January 14, 2016 2:14 AM To: Burr, Becky <Becky.Burr@neustar.biz>; Accountability Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Deck for Meeting #75 Mission Statement discussion
On 06/01/2016 19:03, Burr, Becky wrote:
Is attached in DRAFT FORM. Anything missing or wrong should be attributed to incompetence rather than conspiracy. I am still working on questions in 1 section. I will also shortly resend a variety of previously circulated resource documents. Becky,
The slide deck you actually presented at meeting 75 contains three propositions that were not contained in this draft deck you copied to the list. I believe you described these in your oral presentation as "strawman propositions for discussion". I am writing to react to those propositions.
"Proposition: The GAC may provide Advice on any matter it sees fit; ICANN must duly consider such Advice in accordance with the Bylaws, and if it decides to follow such Advice, must do so in a manner consistent with ICANN's Bylaws, including its Mission Statement."
I agree with this proposition.
"Proposition: ICANN's agreements with contracted parties may reflect: (a) bottom-up, consensus-based, multistakeholder policies on issues for which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability of the DNS; and (b) other provisions in service of that Mission."
I also agree with this proposition.
The third propostion you introduce with a question:
"To what extent should contracted parties be free to propose or voluntarily accept (and obligated to comply with) contract provisions that exceed the scope of ICANN's Mission, e.g., to serve a specific community, pro-actively address a public policy concern?
If "voluntary" commitments may exceed the scope of ICANN's Mission, how do you ensure that such commitments are truly voluntary?
Proposition: Individually negotiated commitments will be deemed to be voluntary. Existing RA and RAA language (including standard PICs) are "grandfathered" (as defined in Notes). Going forward, a mechanism should be available to permit contracted parties to enter into agreements without waiving the right to challenge (collectively) a contract provision on the grounds that (a) it exceeds ICANN's Mission and (b) was extracted by ICANN on an other than voluntary basis."
I do not agree with this proposition, because I think the question you pose to which it is offered as an answer is mistaken.
My reasoning is as follows:
Let us set aside the question of how to determine whether a particular provision of a contract between ICANN and a Registry was arrived at through "voluntary" means. Let us also set aside the vexed question of whether the concept of a "voluntary commitment" is even meaningful in a negotiation between an entity that has a critical input for its core business and an entity that is the monopoly supplier of that critical input.
Let us consider instead: why do we care whether terms in Registry contracts are "voluntary commitments"?
To put it another way, what is the wrong with ICANN imposing unwanted terms on Registries?
It seems to me that the very notion of "voluntary commitment" must be intended as a meaning of protecting Registries from unreasonable impositions by ICANN. However the fear of ICANN making unreasonable impositions on Registries is not the only or main reason why we want to limit ICANN to acting within its Mission, so addressing the Mission limitation through some definition of what constitutes a "voluntary commitment" misses the point.
Limiting ICANN to its Mission is there to protect the entire community, not just Registries. Concerning the so-called "regulatory prohibition", that prohibition is intended primarily to protect the interests of end-user registrants, not those of Registries. We should be just as concerned if ICANN tries to exceed its Mission as a result of a conspiracy between it and the Registries as we should if ICANN does so as a result of some other motivation and then tries to impose requirements on Registries without their approval.
Accordingly, I am afraid I cannot agree with either your third proposition or the assumption on which it rests.
In your question you ask "To what extent should contracted parties be free to propose or voluntarily accept (and obligated to comply with) contract provisions that exceed the scope of ICANN's Mission".
The answer to this is that contracted parties are not bound by ICANN's bylaws, and so they are entirely free to enter into any contractual relations they wish. However, ICANN is bound by its bylaws, and so is not free to be the counterparty to a contract the purpose of which exceeds or is in contradiction with the Mission or other bylaws requirement.
Incidentally, I would point out that there is nothing unique about the Mission limitation. If we were to adopt the view that ICANN is free enter into an agreement with Registries for purposes beyond the Mission merely because the Registries were eager for it to do so, by the same token ICANN could then also disregard any other provision of the Bylaws that sought to constrain how ICANN acts provided that Registries "voluntary" agreed to that. That cannot be acceptable to anyone, surely.
Kind Regards,
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
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
--- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus