Jordan, I think timing is a very valid concern. However, I think that prioritizing our work items should be done in consultation with the law firm. We should not hold back on revealing our concerns, any more than one might do so with a doctor. Greg On Friday, March 6, 2015, Jordan Carter <jordan@internetnz.net.nz> wrote:
Dear legal sub-team colleagues,
I wonder whether we might need to consider doing this in stages?
The document as it is steps out a decent set of questions that have been raised by the community, but there is a limit to what firms can do in the time before we have to consult on our proposals.
As such I would be relaxed if we sought first responses on a basic question about whether we can have mechanisms that constrain the ICANN Board, and then if a second set of legal advice is sought after that?
Happy to hear how this is going to work at our call next week.
bests Jordan
On 7 March 2015 at 07:19, Brenda Brewer <brenda.brewer@icann.org <javascript:_e(%7B%7D,'cvml','brenda.brewer@icann.org');>> wrote:
Dear all,
The Action Items and Notes for the *CCWG Accountability LEGAL SubTeam* call on 05 March will be available here: https://community.icann.org/pages/viewpage.action?pageId=52891283 *Action Items*
*ACTION ITEM: Include Robin in conversations with law firms.*
*ACTION ITEM: Provide time slots to Leon to hold call with law firm on Monday, 9 March.*
*ACTION ITEM: Robin to refine document before call with law firm for discussion. * *Notes*
*Update on selection process of Law Firm:*
- Several calls took place with shortlisted candidates.
- 8 law firms at the beginning of process.
- 3 shortlisted firms.
*Feedback:*
- These decisions should be made by legal team. Who decides which law firms get shortlisted?
--> CCWG jumped in to catch up with CWG.
---> It is the CWG process - Leon liaised for the CCWG legal committee - process has been ongoing for few weeks. If CCWG likes firm the CWG hires, CCWG could use them. Could hire a different firm if not satisfactory but this would have impact on costs.
*//Recording was paused due to identification of firms that we do not yet have authority to release more broadly at this time//*
- Firm the CWG hires is not necessarily going to be the one the CCWG will hire.
ACTION ITEM: Include Robin in conversations with law firms.
ACTION ITEM: Provide time slots to Leon to hold call with law firm on Monday, 9 March.
- While we have been discussing terms of engagement with candidate, we have not engaged candidate. There have been discussions on whether it is appropriate to handle both CWG and CCWG. Law firms were asked if saw conflict: none of the firms detected issue-based conflicts and confirmed they would have resources to support both projects. We did not presuppose CCWG work, did not share documents, but ensured availability of resources and that there is no CoI.
//Recording was paused due to identification of firms that we do not yet have authority to release more broadly at this time//
*Review of legal scoping document*
Suggestions that this document should be shortened.
*Feedback:*
- We should not take section on concerns and proposals out of document. Context is needed. Pushback from community if we don't include their feedback.
--> Let lawyers expand on initial proposal.
--> Clarify that these are not the only items we would consider.
- The document is not too long. Do not waste too much time on editing the document. It is straightforward. Put jurisdiction on hold. Immunity is contrary to accountability.
- Leave all questions that have been proposed in the document - they reflect genuine concerns from the stakeholders. Jurisdiction is a real concern. There is a link between accountability and jurisdiction. We are debating mechanisms that would eventually be implemented under certain jurisdictions - we would need to think about alternatives. Respect the jurisdiction concern.
--> This raises question of: is this WS1 or WS2? To date, it is considered WS2 due to the time this would require to implement and in light of declaration from Fadi at hearing. If WS1, this might derail the whole process.
--> Lot of pressure on group - we need to ask the question of jurisdiction.
--> It is important to get feedback on jurisdiction and to ask questions. Some of the answers will show that US California jurisdictions are very strong for accountability and rule of law and offer increasing amount of flexibility for different methods of accountability. But if available in other jurisdictions, it should be known. We may return to jurisdiction discussions in CWG as well.
--> Discussion about jurisdictional concerns regarding review panels is certainly an issue. Suggestion that Advisors' guidance be sought.
*Conclusion*:
- Keep document structure as it is.
- Nothing in the document as it is will be taken out.
- Panel of experts could be extremely helpful and should be mentioned to law firms – it is a resource that could be used.
- Lee Bygrave's guidance could be useful – his participation in Istanbul meeting is tentative.
*Proposed Goals*
Proposed goals: How can we protect ICANN from being prone to capture? How can we protect ICANN from antitrust law in US?
*Feedback*
- Antitrust review of potential mechanism would be desirable at some point in process.
- Concerns about legal subteam coming up with new goals for the CCWG: it is not appropriate.
--> We should address mechanisms to prevent the whole system to be prone to capture. Any change in jurisdiction might affect the whole organization and its stakeholders regarding effect of antitrust law.
- Antitrust is not a goal but a byproduct. Capture is a concern across other communities.
We are waiting to receive WP1, WP2, ST-PT conclusions.
ACTION ITEM: Robin to refine document before call with law firm for discussion.
END
Kind regards,
Brenda
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