On 19/01/2016 03:32, Greg Shatan wrote:
If (in your view) ICANN cannot enforce obligations that an applicant includes in its application, who can enforce those obligations?
Greg, By calling them "obligations" you presuppose the correctness of your own position that ICANN should enforce them. Let us call them what they are: "statements concerning how the applicant intends to operate the Registry". Are all such statements obligations? Clearly not: the contract does not govern every aspect of registry operation; plenty of decisions are left to the commercial policy of the applicant, which it is free to alter over time.
If no one can enforce these obligations, then how can they even be called obligations?
They should not be. Please stop doing so.
What keeps applicants from pulling a "bait-and-switch," stating a series of "obligations" in their application, only to drop them after the application is approved.
The notion of "bait and switch" implies that there is a bait. In my view, ICANN should not regard as bait a promise to engage in an enterprise that ICANN has no legitimate right to pursue. Indeed, it would make sense in the next round to amend the applicant guidebook / application form in a way that strongly discourages applicants from offering up promises that ICANN ought to disregard.
Frankly, I think it is entirely within ICANN's mission to enforce obligations set out in applications.
Again, there you go pre-supposing the validity of your claim. Merely because something is written into an application doesn't make it something that ICANN must go along with. (If it does, I'll be submitting an application containing an "obligation" on me to receive a regular income from ICANN!). For something to be an obligation, it must be something that becomes part of the contract. ICANN should not be willing to write into its contracts objectives that it has no right nor interest to pursue. As part of its Mission to implement policies for which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability of the DNS, ICANN may indeed enter into and enforce contracts to achieve those ends. It may not, however, enter into and enforce contracts entirely unconnected with those ends, or designed to pursue ends in conflict with its Mission and Bylaws.
It shouldn't be surprising that ICANN cannot escape the limits of its Bylaws simply by placing something inconsistent with them into a contract.
However, this is not what Becky postulated. She postulated obligations placed in the agreement by the registry operator, not obligations placed in the agreement by ICANN.
There is no difference. A contract is an agreement. It is a joint enterprise, with both sides jointly engaged in the purpose of the contract (albeit, often with different tasks to undertake in pursuit of that enterprise). If the contract says "We will censor all mention of llamas from any web sites run on domains within this domain", then both the Registry and ICANN are engaged in the enterprise of suppressing mention of llamas. That it is the Registry's task in pursuit of this enterprise to send notices to registrants instructing them to remove articles mentioning llamas, and ICANN's task to consider whether the Registry has been sufficiently dilligent and effective at suppressing talk of llamas, are mere points of detail. In their respective roles, both ICANN and the Registry are llama-suppressors.
If a Registry placed something in its application that would, if agreed, cause ICANN to act inconsistently with law that was applicable to ICANN, you wouldn't expect the contract to override applicable law. Nor should it override the governance of ICANN.
This answer only muddies the waters. We seem to have shifted somehow from potential obligations placed on the applicant to potential obligations placed on ICANN in the application that would then become part of the RA. I'm not sure where that shift came from.
There is no shift. The contract is a joint enterprise. Consider the following illustrative example. Suppose that an applicant said that they would operate their domain on a not-for-profit basis, and that any surplus accumulated in excess of operating requirements and a prudent reserve equivalent to n months operating income would be returned to registrants in the form of a regularly-awarded lottery prize. Running lotteries is, I believe, an activity that the State of California reserves to itself. Do you not think the California authorities might have something to say about ICANN procuring the creation and operation of lotteries that they consider illegal? Do you not think that were ICANN to seek to compel this registry to carry out its "obligation" to run a lottery, they would look at ICANN as a joint conspirator?
I'm not sure what "real world" examples of this there would be -- where a registry puts new obligations on ICANN. I think this is so rare as to be essentially not worth considering.
In that case you may wish to consult the IPC submission on this subject, which argues that it should be an obligation upon ICANN to enforce every provision of every contract.
Of course, if an application did require ICANN to break the law, I would expect that application to be rejected or modified, rather than having that obligation placed into an agreement. Indeed, if it were to ever get that far, a contractual provision that violated the law would be void as against public policy (at least under US law).
Wonderful! Now we're getting somewhere. All I am saying is that this should apply, not only in respect of statute law, but also in respect of ICANN's Articles and Bylaws (which are also a form of law, and capable of having legally enforceable consequences). This is perfectly normal and expected. That's why you're having to argue for additional text to disapply it, while those on my side of this argument are satisfied with the default position at law.
> What¹s the principle - freedom of > contract?
No.
The Registry's freedom of contract is not limited, subject to applicable law. But ICANN's is freedom of contract is additionally limited by the Bylaws.
We are talking about a single contract here -- between a registry operator and ICANN.
No, we're not. The Registry is free to contract with other counter-parties, as it wishes, if they agree to contract with the Registry. The Registry's "freedom of contract" does not imply a right to compel ICANN to contract with it on the terms it offers, just as it does not imply a right to contract with you or me. ICANN ought to refuse to enter into contracts that aim at objectives outside the scope of its Mission (or which are incompatible with other elements of the Bylaws for that matter); the Bylaws ought to compel ICANN to make such refusal. Registries are not bound by the limits of ICANN's Mission, and are free to make contractually enforceable promises to others that choose to accept them. -- 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