At 03:01 PM 12/1/2015, Mueller, Milton L wrote:

Acceptable to me, thanks. David? Malcolm? --MM

I tried to send a message to the list earlier today, but I'm not sure it went through - I'm OK with Becky's proposed guidance to the drafters -- David

...

From: Burr, Becky [mailto:Becky.Burr@neustar.biz] Sent: Tuesday, December 1, 2015 12:29 PM

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

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-----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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