I agree with Kavouss that we are possibly embarking on a task with no sensible output here. We have said clearly that by grandfathering we mean that parties intended (and intend) to be bound to the terms of the registry agreement, including PICs. (It probably should mean that applicants intend to be bound by the terms of their application as well.) My prediction is that the lawyers will look at PICs – the many hundreds that there are – and say “Whether or not these PICs are within ICANN’s Mission depends – as is the case today - in substantial part, on the manner in which the registry operator implements the specific commitment and the manner in which ICANN enforces them.”

As a lawyer, I would be very reluctant to make pronouncements about whether or not a specific provision will be enforceable in every conceivable case. Rather, I would want to first know the specific facts that give rise to a dispute about its enforceability, and even then would be well-advised to remind my audience that my opinion is limited to the specific factual situation under consideration.

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: Kavouss Arasteh <kavouss.arasteh@gmail.com>
Date: Saturday, December 12, 2015 at 3:23 AM
To: "Rosemary E. Fei" <rfei@adlercolvin.com>
Cc: ICANN-Adler <ICANN@adlercolvin.com>, Thomas Rickert <thomas@rickert.net>, Accountability Community <accountability-cross-community@icann.org>, "ACCT-Staff (acct-staff@icann.org)" <acct-staff@icann.org>, Sidley ICANN CCWG <sidleyicannccwg@sidley.com>
Subject: Re: [CCWG-ACCT] Resolution of Mission Language related to regulation and contract

Dear Rosemary,

Dear Leon

Dear All,

Before certifying question to be

studied , one need to verify the

practicality and workability of the

study.

Issue 1

How many PICs have been

received? Perhaps some 500

Issue 2

How many were expected

to have been received? Perhaps

About 1930, equal to the No.

of strings gTLDs

Issue 3

How many supplementary PICs

Were submitted by applicants? No

Real statistics

Issue 4

Are there any typical or some

typical PIC or PICs available?

Issue 5

What the meaning of term

"typical PIC "in legal language?

Issue 6

Does a typical PIC, if any, could

cover the objectives of PIC in

general legal terms?

I think we are hijacked by a

question raised which would be

Impractical to study and impractical

to infer ant thing from that.

Now, should we not DROP the

Question?

Regards

Kavouss

Sent from my iPhone

On 12 Dec 2015, at 00:50, Rosemary E. Fei <rfei@adlercolvin.com> wrote:

How large is the universe of existing PICs? Perhaps someone on the CCWG could provide us with a representative sampling of existing PICs, and we can then review them and draw our own conclusions about what’s a “typical” provision?

Rosemary

Rosemary E. Fei
Adler & Colvin
235 Montgomery Street, Suite 1220
San Francisco, CA 94104
415/421-7555 (phone)
415/421-0712 (fax)
rfei@adlercolvin.com
www.adlercolvin.com

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From: Malcolm Hutty [mailto:malcolm@linx.net]
Sent: Friday, December 11, 2015 3:34 PM
To: Holly Gregory
Cc: León Felipe Sánchez Ambía; Sidley ICANN CCWG; ICANN-Adler; ACCT-Staff (acct-staff@icann.org); Thomas Rickert; Accountability Cross Community
Subject: Re: [CCWG-ACCT] Resolution of Mission Language related to regulation and contract

On 11 Dec 2015, at 22:15, Gregory, Holly <holly.gregory@sidley.com> wrote:

We will need information on the kind of provisions that PICs have typically included. Could ICANN legal provide that information to us?

And therein lies the rub.

I think CCWG members are likely to have differing views as to what should be considered "typical" and what aberrant. Nor would I consider ICANN legal a neutral advisor to you on this, if it were making any kind of qualitative judgement.

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