Dear CCWG Co-Chairs, Members and Participants and ICANN Staff, Attached please find our memo responding to the certified question of January 11, 2016 regarding litigation risks related to the proposed human rights bylaws provisions. Kind regards, Holly and Rosemary HOLLY J. GREGORY Partner and Co-Chair Global Corporate Governance & Executive Compensation Practice Sidley Austin LLP +1 212 839 5853 holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. ****************************************************************************************************
Thanks for this note. I provide the following reaction in my role as an attorney with ICANN. The concern raised by the Board in its comments was not solely focused on the issue of increased potential for lawsuits or IRPs. Rather, the Board focused on the impact of opening up ICANN to suits or IRPs based on human rights issues prior to having the framework for consideration of ICANN's role in respecting human rights. As Bruce explained on the 12 January 2015 call, not having a framework leaves either courts or IRP panels to determine how human rights fit into ICANN's mission. Leaving ICANN's mission open to that type of external definitional work seems counter to all the effort of the CCWG-Accountability to confirm ICANN's narrow and limited mission. Including undefined commitments to human rights in the Bylaws without the framework to guide courts or IRP panels in how they should consider the scope of human rights commitments in ICANN, creates a risk for the entire community. CCWG Counsel's suggestion that IRP usage could be limited, by example, through "preclud[ing] claims of human rights violations that are not grounded in a specific violation of an applicable law", still leaves the question of what law would be applicable? How do we know that the laws that will be relied upon are respectful of ICANN's limited mission? The question isn't really "will ICANN be subject to more suits?" As CCWG counsel noted, the potential of suit always exists. The potential of IRPs being brought on human rights grounds is probably increased if there is a specific Bylaws mention of human rights. However, these are not where the real risks occur. The question that should be considered is "Does the community wish to leave the definition of ICANN's role in human rights to Courts or IRP panels?". Also, it is important to note that the Board's comments do not remove the possibility of human rights being referred to in the Bylaws, but rather propose that consideration of that placement should happen after a framework is completed. I look forward to continuing this conversation with the CCWG. Best, Sam From: "Gregory, Holly" <holly.gregory@sidley.com<mailto:holly.gregory@sidley.com>> Date: Wednesday, January 13, 2016 at 4:28 PM To: Mathieu Weill <mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>>, Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>, León Sánchez Ambía <leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>>, "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Cc: "ACCT-Staff (acct-staff@icann.org<mailto:acct-staff@icann.org>)" <acct-staff@icann.org<mailto:acct-staff@icann.org>>, Sidley ICANN CCWG <sidleyicannccwg@sidley.com<mailto:sidleyicannccwg@sidley.com>>, ICANN-Adler <ICANN@adlercolvin.com<mailto:ICANN@adlercolvin.com>>, "'Rosemary E. Fei'" <rfei@adlercolvin.com<mailto:rfei@adlercolvin.com>>, Samantha Eisner <samantha.eisner@icann.org<mailto:samantha.eisner@icann.org>> Subject: <no subject> Dear CCWG Co-Chairs, Members and Participants and ICANN Staff, Attached please find our memo responding to the certified question of January 11, 2016 regarding litigation risks related to the proposed human rights bylaws provisions. Kind regards, Holly and Rosemary HOLLY J. GREGORY Partner and Co-Chair Global Corporate Governance & Executive Compensation Practice Sidley Austin LLP +1 212 839 5853 holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. ****************************************************************************************************
Hi Sam, Thanks for this input. Would you feel comfortable with option c on human rights? Best regards, León
El 14/01/2016, a las 2:22 p.m., Samantha Eisner <Samantha.Eisner@icann.org> escribió:
Thanks for this note. I provide the following reaction in my role as an attorney with ICANN.
The concern raised by the Board in its comments was not solely focused on the issue of increased potential for lawsuits or IRPs. Rather, the Board focused on the impact of opening up ICANN to suits or IRPs based on human rights issues prior to having the framework for consideration of ICANN’s role in respecting human rights. As Bruce explained on the 12 January 2015 call, not having a framework leaves either courts or IRP panels to determine how human rights fit into ICANN’s mission. Leaving ICANN’s mission open to that type of external definitional work seems counter to all the effort of the CCWG-Accountability to confirm ICANN’s narrow and limited mission.
Including undefined commitments to human rights in the Bylaws without the framework to guide courts or IRP panels in how they should consider the scope of human rights commitments in ICANN, creates a risk for the entire community. CCWG Counsel’s suggestion that IRP usage could be limited, by example, through “preclud[ing] claims of human rights violations that are not grounded in a specific violation of an applicable law”, still leaves the question of what law would be applicable? How do we know that the laws that will be relied upon are respectful of ICANN’s limited mission?
The question isn’t really “will ICANN be subject to more suits?” As CCWG counsel noted, the potential of suit always exists. The potential of IRPs being brought on human rights grounds is probably increased if there is a specific Bylaws mention of human rights. However, these are not where the real risks occur. The question that should be considered is “Does the community wish to leave the definition of ICANN’s role in human rights to Courts or IRP panels?". Also, it is important to note that the Board’s comments do not remove the possibility of human rights being referred to in the Bylaws, but rather propose that consideration of that placement should happen after a framework is completed.
I look forward to continuing this conversation with the CCWG.
Best,
Sam
From: "Gregory, Holly" <holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>> Date: Wednesday, January 13, 2016 at 4:28 PM To: Mathieu Weill <mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>>, Thomas Rickert <thomas@rickert.net <mailto:thomas@rickert.net>>, León Sánchez Ambía <leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>>, "accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> Cc: "ACCT-Staff (acct-staff@icann.org <mailto:acct-staff@icann.org>)" <acct-staff@icann.org <mailto:acct-staff@icann.org>>, Sidley ICANN CCWG <sidleyicannccwg@sidley.com <mailto:sidleyicannccwg@sidley.com>>, ICANN-Adler <ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com>>, "'Rosemary E. Fei'" <rfei@adlercolvin.com <mailto:rfei@adlercolvin.com>>, Samantha Eisner <samantha.eisner@icann.org <mailto:samantha.eisner@icann.org>> Subject: <no subject>
Dear CCWG Co-Chairs, Members and Participants and ICANN Staff, Attached please find our memo responding to the certified question of January 11, 2016 regarding litigation risks related to the proposed human rights bylaws provisions. Kind regards, Holly and Rosemary
HOLLY J. GREGORY Partner and Co-Chair Global Corporate Governance & Executive Compensation Practice
Sidley Austin LLP +1 212 839 5853 holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>
**************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately.
****************************************************************************************************
Hello Leon, It may be good to post here what "option c" text looks like. Secondly, I believe legal are only to provide legal opinion and I think the question you ask may be better directed to the board. Regards On 14 Jan 2016 22:09, "León Felipe Sánchez Ambía" <leonfelipe@sanchez.mx> wrote:
Hi Sam,
Thanks for this input. Would you feel comfortable with option c on human rights?
Best regards,
León
El 14/01/2016, a las 2:22 p.m., Samantha Eisner <Samantha.Eisner@icann.org> escribió:
Thanks for this note. I provide the following reaction in my role as an attorney with ICANN.
The concern raised by the Board in its comments was not solely focused on the issue of increased potential for lawsuits or IRPs. Rather, the Board focused on the *impact* of opening up ICANN to suits or IRPs based on human rights issues prior to having the framework for consideration of ICANN’s role in respecting human rights. As Bruce explained on the 12 January 2015 call, not having a framework leaves either courts or IRP panels to determine how human rights fit into ICANN’s mission. Leaving ICANN’s mission open to that type of external definitional work seems counter to all the effort of the CCWG-Accountability to confirm ICANN’s narrow and limited mission.
Including undefined commitments to human rights in the Bylaws without the framework to guide courts or IRP panels in how they should consider the scope of human rights commitments in ICANN, creates a risk for the entire community. CCWG Counsel’s suggestion that IRP usage could be limited, by example, through “preclud[ing] claims of human rights violations that are not grounded in a specific violation of an applicable law”, still leaves the question of what law would be applicable? How do we know that the laws that will be relied upon are respectful of ICANN’s limited mission?
The question isn’t really “will ICANN be subject to more suits?” As CCWG counsel noted, the potential of suit always exists. The potential of IRPs being brought on human rights grounds is probably increased if there is a specific Bylaws mention of human rights. However, these are not where the real risks occur. The question that should be considered is “Does the community wish to leave the definition of ICANN’s role in human rights to Courts or IRP panels?". Also, it is important to note that the Board’s comments do not remove the possibility of human rights being referred to in the Bylaws, but rather propose that consideration of that placement should happen after a framework is completed.
I look forward to continuing this conversation with the CCWG.
Best,
Sam
From: "Gregory, Holly" <holly.gregory@sidley.com> Date: Wednesday, January 13, 2016 at 4:28 PM To: Mathieu Weill <mathieu.weill@afnic.fr>, Thomas Rickert < thomas@rickert.net>, León Sánchez Ambía <leonfelipe@sanchez.mx>, " accountability-cross-community@icann.org" < accountability-cross-community@icann.org> Cc: "ACCT-Staff (acct-staff@icann.org)" <acct-staff@icann.org>, Sidley ICANN CCWG <sidleyicannccwg@sidley.com>, ICANN-Adler < ICANN@adlercolvin.com>, "'Rosemary E. Fei'" <rfei@adlercolvin.com>, Samantha Eisner <samantha.eisner@icann.org> Subject: <no subject>
Dear CCWG Co-Chairs, Members and Participants and ICANN Staff, Attached please find our memo responding to the certified question of January 11, 2016 regarding litigation risks related to the proposed human rights bylaws provisions. Kind regards, Holly and Rosemary
*HOLLY J. GREGORY* Partner and Co-Chair Global Corporate Governance & Executive Compensation Practice
*Sidley Austin LLP* +1 212 839 5853 holly.gregory@sidley.com
**************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately.
****************************************************************************************************
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Leon, all: Sam, and the Board are 100% correct. As I stated early on in this discussion, the addition of the qualifying weasel words including the expression 'applicable law' appears to be a knowing and deliberate attempt by those opposed to ICANN having any obligation to respect fundamental rights, to eviscerate any obligations in that regard. I am entirely serious here. And I submit this perception is corrosive. Both to the trust in the Board's good intentions, and in that of the CCWG. Let me put it this way: fundamental rights obligatons do not apply to private sector organisations as a matter of either domestic OR international law. 'Applicable law' therefore is a nullity. The effect of this is that the wording imposed by the proposed wording appears designed to give a patina to WS1 that ICANN will respect human rights, whilst in law, removing all obligations /whatsoever/. That is unacceptable, and I therefore stand with the Board on this one, although I probably reached this place by a different route. On 15/01/16 05:13, Seun Ojedeji wrote:
Hello Leon,
It may be good to post here what "option c" text looks like. Secondly, I believe legal are only to provide legal opinion and I think the question you ask may be better directed to the board.
Regards
On 14 Jan 2016 22:09, "León Felipe Sánchez Ambía" <leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>> wrote:
Hi Sam,
Thanks for this input. Would you feel comfortable with option c on human rights?
Best regards,
León
El 14/01/2016, a las 2:22 p.m., Samantha Eisner <Samantha.Eisner@icann.org <mailto:Samantha.Eisner@icann.org>> escribió:
Thanks for this note. I provide the following reaction in my role as an attorney with ICANN.
The concern raised by the Board in its comments was not solely focused on the issue of increased potential for lawsuits or IRPs. Rather, the Board focused on the /impact/ of opening up ICANN to suits or IRPs based on human rights issues prior to having the framework for consideration of ICANN’s role in respecting human rights. As Bruce explained on the 12 January 2015 call, not having a framework leaves either courts or IRP panels to determine how human rights fit into ICANN’s mission. Leaving ICANN’s mission open to that type of external definitional work seems counter to all the effort of the CCWG-Accountability to confirm ICANN’s narrow and limited mission.
Including undefined commitments to human rights in the Bylaws without the framework to guide courts or IRP panels in how they should consider the scope of human rights commitments in ICANN, creates a risk for the entire community. CCWG Counsel’s suggestion that IRP usage could be limited, by example, through “preclud[ing] claims of human rights violations that are not grounded in a specific violation of an applicable law”,still leaves the question of what law would be applicable? How do we know that the laws that will be relied upon are respectful of ICANN’s limited mission?
The question isn’t really “will ICANN be subject to more suits?” As CCWG counsel noted, the potential of suit always exists. The potential of IRPs being brought on human rights grounds is probably increased if there is a specific Bylaws mention of human rights. However, these are not where the real risks occur. The question that should be considered is “Does the community wish to leave the definition of ICANN’s role in human rights to Courts or IRP panels?". Also, it is important to note that the Board’s comments do not remove the possibility of human rights being referred to in the Bylaws, but rather propose that consideration of that placement should happen after a framework is completed.
I look forward to continuing this conversation with the CCWG.
Best,
Sam
From:"Gregory, Holly" <holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>> Date:Wednesday, January 13, 2016 at 4:28 PM To:Mathieu Weill <mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>>, Thomas Rickert <thomas@rickert.net <mailto:thomas@rickert.net>>, León Sánchez Ambía <leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>>, "accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> Cc:"ACCT-Staff (acct-staff@icann.org <mailto:acct-staff@icann.org>)" <acct-staff@icann.org <mailto:acct-staff@icann.org>>, Sidley ICANN CCWG <sidleyicannccwg@sidley.com <mailto:sidleyicannccwg@sidley.com>>, ICANN-Adler <ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com>>, "'Rosemary E. Fei'" <rfei@adlercolvin.com <mailto:rfei@adlercolvin.com>>, Samantha Eisner <samantha.eisner@icann.org <mailto:samantha.eisner@icann.org>> Subject:<no subject>
Dear CCWG Co-Chairs, Members and Participants and ICANN Staff, ____ Attached please find our memo responding to the certified question of January 11, 2016 regarding litigation risks related to the proposed human rights bylaws provisions. Kind regards, Holly and Rosemary____ __ __ *HOLLY J. GREGORY* Partner and Co-Chair Global Corporate Governance & Executive Compensation Practice
*Sidley Austin LLP** *+1 212 839 5853 <tel:%2B1%20212%20839%205853> holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>____ __ __
**************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately.
****************************************************************************************************
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto: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
Seun, Sam, All, « option c » is the following : “Adopt adjusted bylaw language as part of WS1 to clarify that it can only be enforced or used in an IRP once the FoI is approved (Such as : “This articles becomes effective 30 days after approval of the FoI…”).” Best Mathieu De : accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] De la part de Seun Ojedeji Envoyé : vendredi 15 janvier 2016 06:14 À : Leon Felipe Sanchez Ambia Cc : ICANN-Adler; Thomas Rickert; accountability-cross-community@icann.org; ACCT-Staff (acct-staff@icann.org); Sidley ICANN CCWG (sidleyicannccwg@sidley.com) Objet : Re: [CCWG-ACCT] (no subject) Hello Leon, It may be good to post here what "option c" text looks like. Secondly, I believe legal are only to provide legal opinion and I think the question you ask may be better directed to the board. Regards On 14 Jan 2016 22:09, "León Felipe Sánchez Ambía" <leonfelipe@sanchez.mx> wrote: Hi Sam, Thanks for this input. Would you feel comfortable with option c on human rights? Best regards, León El 14/01/2016, a las 2:22 p.m., Samantha Eisner <Samantha.Eisner@icann.org> escribió: Thanks for this note. I provide the following reaction in my role as an attorney with ICANN. The concern raised by the Board in its comments was not solely focused on the issue of increased potential for lawsuits or IRPs. Rather, the Board focused on the impact of opening up ICANN to suits or IRPs based on human rights issues prior to having the framework for consideration of ICANN’s role in respecting human rights. As Bruce explained on the 12 January 2015 call, not having a framework leaves either courts or IRP panels to determine how human rights fit into ICANN’s mission. Leaving ICANN’s mission open to that type of external definitional work seems counter to all the effort of the CCWG-Accountability to confirm ICANN’s narrow and limited mission. Including undefined commitments to human rights in the Bylaws without the framework to guide courts or IRP panels in how they should consider the scope of human rights commitments in ICANN, creates a risk for the entire community. CCWG Counsel’s suggestion that IRP usage could be limited, by example, through “preclud[ing] claims of human rights violations that are not grounded in a specific violation of an applicable law”, still leaves the question of what law would be applicable? How do we know that the laws that will be relied upon are respectful of ICANN’s limited mission? The question isn’t really “will ICANN be subject to more suits?” As CCWG counsel noted, the potential of suit always exists. The potential of IRPs being brought on human rights grounds is probably increased if there is a specific Bylaws mention of human rights. However, these are not where the real risks occur. The question that should be considered is “Does the community wish to leave the definition of ICANN’s role in human rights to Courts or IRP panels?". Also, it is important to note that the Board’s comments do not remove the possibility of human rights being referred to in the Bylaws, but rather propose that consideration of that placement should happen after a framework is completed. I look forward to continuing this conversation with the CCWG. Best, Sam From: "Gregory, Holly" < <mailto:holly.gregory@sidley.com> holly.gregory@sidley.com> Date: Wednesday, January 13, 2016 at 4:28 PM To: Mathieu Weill < <mailto:mathieu.weill@afnic.fr> mathieu.weill@afnic.fr>, Thomas Rickert < <mailto:thomas@rickert.net> thomas@rickert.net>, León Sánchez Ambía < <mailto:leonfelipe@sanchez.mx> leonfelipe@sanchez.mx>, " <mailto:accountability-cross-community@icann.org> accountability-cross-community@icann.org" < <mailto:accountability-cross-community@icann.org> accountability-cross-community@icann.org> Cc: "ACCT-Staff ( <mailto:acct-staff@icann.org> acct-staff@icann.org)" < <mailto:acct-staff@icann.org> acct-staff@icann.org>, Sidley ICANN CCWG < <mailto:sidleyicannccwg@sidley.com> sidleyicannccwg@sidley.com>, ICANN-Adler < <mailto:ICANN@adlercolvin.com> ICANN@adlercolvin.com>, "'Rosemary E. Fei'" < <mailto:rfei@adlercolvin.com> rfei@adlercolvin.com>, Samantha Eisner < <mailto:samantha.eisner@icann.org> samantha.eisner@icann.org> Subject: <no subject> Dear CCWG Co-Chairs, Members and Participants and ICANN Staff, Attached please find our memo responding to the certified question of January 11, 2016 regarding litigation risks related to the proposed human rights bylaws provisions. Kind regards, Holly and Rosemary HOLLY J. GREGORY Partner and Co-Chair Global Corporate Governance & Executive Compensation Practice Sidley Austin LLP +1 212 839 5853 <tel:%2B1%20212%20839%205853> <mailto:holly.gregory@sidley.com> holly.gregory@sidley.com **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. **************************************************************************************************** _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear all, Great to have this discussion. I have to politely disagree with the opinion of Samantha, and I also think it is a bit early to start talking about option C while all legal advice, discussions and work of WP4 and the CCWG can be summarized as option A (without mentioning of GPI). Without agreeing at CCWG that we have good reasons not to proceed with option A, I believe it is not reasonable to move to the option C at the moment. First of all it would be great if Samantha could produce some examples of caselaw or similar examples, because we have done quite extensive research as well as the Institute for Human Rights and Business and we didn't find any example of the risk that Samantha is referring to. Even though we would be working on the framework of interpretation in WS2, the existing language is very narrow, and the concept of human rights is not something new at all which would be reinvented. So before we go back to discussing possible risk, it would be nice to base our discussions on facts, laws and practice. In the mean time I would suggest sticking with option A, as suggested in the draft report. All the best, Niels On 01/15/2016 11:07 AM, Mathieu Weill wrote:
Seun, Sam, All,
« option c » is the following :
“Adopt adjusted bylaw language as part of WS1 to clarify that it can only be enforced or used in an IRP once the FoI is approved (Such as : “This articles becomes effective 30 days after approval of the FoI…”).”
Best
Mathieu
*De :*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *De la part de* Seun Ojedeji *Envoyé :* vendredi 15 janvier 2016 06:14 *À :* Leon Felipe Sanchez Ambia *Cc :* ICANN-Adler; Thomas Rickert; accountability-cross-community@icann.org; ACCT-Staff (acct-staff@icann.org); Sidley ICANN CCWG (sidleyicannccwg@sidley.com) *Objet :* Re: [CCWG-ACCT] (no subject)
Hello Leon,
It may be good to post here what "option c" text looks like. Secondly, I believe legal are only to provide legal opinion and I think the question you ask may be better directed to the board.
Regards
On 14 Jan 2016 22:09, "León Felipe Sánchez Ambía" <leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>> wrote:
Hi Sam,
Thanks for this input. Would you feel comfortable with option c on human rights?
Best regards,
León
El 14/01/2016, a las 2:22 p.m., Samantha Eisner <Samantha.Eisner@icann.org <mailto:Samantha.Eisner@icann.org>> escribió:
Thanks for this note. I provide the following reaction in my role as an attorney with ICANN.
The concern raised by the Board in its comments was not solely focused on the issue of increased potential for lawsuits or IRPs. Rather, the Board focused on the /impact/ of opening up ICANN to suits or IRPs based on human rights issues prior to having the framework for consideration of ICANN’s role in respecting human rights. As Bruce explained on the 12 January 2015 call, not having a framework leaves either courts or IRP panels to determine how human rights fit into ICANN’s mission. Leaving ICANN’s mission open to that type of external definitional work seems counter to all the effort of the CCWG-Accountability to confirm ICANN’s narrow and limited mission.
Including undefined commitments to human rights in the Bylaws without the framework to guide courts or IRP panels in how they should consider the scope of human rights commitments in ICANN, creates a risk for the entire community. CCWG Counsel’s suggestion that IRP usage could be limited, by example, through “preclud[ing] claims of human rights violations that are not grounded in a specific violation of an applicable law”, still leaves the question of what law would be applicable? How do we know that the laws that will be relied upon are respectful of ICANN’s limited mission?
The question isn’t really “will ICANN be subject to more suits?” As CCWG counsel noted, the potential of suit always exists. The potential of IRPs being brought on human rights grounds is probably increased if there is a specific Bylaws mention of human rights. However, these are not where the real risks occur. The question that should be considered is “Does the community wish to leave the definition of ICANN’s role in human rights to Courts or IRP panels?". Also, it is important to note that the Board’s comments do not remove the possibility of human rights being referred to in the Bylaws, but rather propose that consideration of that placement should happen after a framework is completed.
I look forward to continuing this conversation with the CCWG.
Best,
Sam
*From: *"Gregory, Holly" <holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>> *Date: *Wednesday, January 13, 2016 at 4:28 PM *To: *Mathieu Weill <mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>>, Thomas Rickert <thomas@rickert.net <mailto:thomas@rickert.net>>, León Sánchez Ambía <leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>>, "accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> *Cc: *"ACCT-Staff (acct-staff@icann.org <mailto:acct-staff@icann.org>)" <acct-staff@icann.org <mailto:acct-staff@icann.org>>, Sidley ICANN CCWG <sidleyicannccwg@sidley.com <mailto:sidleyicannccwg@sidley.com>>, ICANN-Adler <ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com>>, "'Rosemary E. Fei'" <rfei@adlercolvin.com <mailto:rfei@adlercolvin.com>>, Samantha Eisner <samantha.eisner@icann.org <mailto:samantha.eisner@icann.org>> *Subject: *<no subject>
Dear CCWG Co-Chairs, Members and Participants and ICANN Staff,
Attached please find our memo responding to the certified question of January 11, 2016 regarding litigation risks related to the proposed human rights bylaws provisions. Kind regards, Holly and Rosemary
*HOLLY J. GREGORY* Partner and Co-Chair Global Corporate Governance & Executive Compensation Practice
*Sidley Austin LLP** *+1 212 839 5853 <tel:%2B1%20212%20839%205853> holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>
**************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately.
****************************************************************************************************
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto: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
-- Niels ten Oever Head of Digital Article 19 www.article19.org PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9
Hello Niels,
First of all it would be great if Samantha could produce some examples of caselaw or similar examples, because we have done quite extensive research as well as the Institute for Human Rights and Business and we didn't find any example of the risk that Samantha is referring to.
We don't really have any case law as it relates to the IRP panel's interpretation of our bylaws in this area. A court will interpret the national law of the relevant country - and I gather from other postings to this list that national law doesn't usually apply to non-government organizations with respect to human rights. So I am not surprised that there is little case law as it relates to a non-government organization that you could find. Although laws against slavery etc I would assume apply to the private sector as well as the government sector - so I guess some human rights principles apply to all organizations. The point Samantha is making is that for IRP purposes - we should wait until our community has defined how human rights principles applies to protocol parameters, domain names and IP addresses. The IRP panel is not interpreting national laws - it is interpreting whether we are complaint with our bylaws. So my personal view (not a Board view) is that option (c) might be workable. Regards, Bruce Tonkin
Hi Bruce, Thanks for your mail, further reply inline: On 01/16/2016 12:42 AM, Bruce Tonkin wrote:
Hello Niels,
First of all it would be great if Samantha could produce some examples of caselaw or similar examples, because we have done quite extensive research as well as the Institute for Human Rights and Business and we didn't find any example of the risk that Samantha is referring to.
We don't really have any case law as it relates to the IRP panel's interpretation of our bylaws in this area.
A court will interpret the national law of the relevant country - and I gather from other postings to this list that national law doesn't usually apply to non-government organizations with respect to human rights. So I am not surprised that there is little case law as it relates to a non-government organization that you could find. Although laws against slavery etc I would assume apply to the private sector as well as the government sector - so I guess some human rights principles apply to all organizations.
Governments are responsible to protect human rights, therefore they protect human rights by for instance creating laws which uphold them. It would be however simplistic to say that it's only human rights law - human rights principles are getting incorporated into different areas of law. As you note yourself, slavery is illegal in practically all countries because of national legislation which are in line with human rights. So engaging in slavery is a criminal offense in many countries (thus, criminal law is applicable). Such incorporation as well as enforcement and protection is solely a duty of the governments.
The point Samantha is making is that for IRP purposes - we should wait until our community has defined how human rights principles applies to protocol parameters, domain names and IP addresses. The IRP panel is not interpreting national laws - it is interpreting whether we are complaint with our bylaws.
The IRPs, as you know, are there in order to 'compare contested actions of the ICANN Board to the Bylaws and Articles of Incorporation and to declare whether the ICANN Board has acted consistent with the provisions of those documents'. In the language developed for the Third Draft report, we suggested the transitional bylaw requiring the development and implementation of the Framework of Interpretation. So as long as the framework is not in place but ICANN is developing it in accordance with the bylaw, ICANN cannot be held to a specific interpretation of human rights. An IRP will not be able to either reinvent or reinterpret human rights. And the commitment is a positive obligation which we'll frame and shape in WS2.
So my personal view (not a Board view) is that option (c) might be workable.
I think option A also provides protection against the risk that you (and Samantha) are sketching. Happy to continue the discussion! Best, Niels
Regards, Bruce Tonkin
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Niels ten Oever Head of Digital Article 19 www.article19.org PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9
The idea that ICANN would be safe from litigation or IRP (or other forms of challenge or pressure) because it could not be held to any specific interpretation of the Bylaw is not comforting to me. First, I think this is just not true. This needs to be seen in the context of the Bylaws as a whole. The Bylaws are full of verbiage that has no particular interpretation attached to it. If ICANN is seen to be in violation of one of these provisions, I think it's fair to say that any challenge will involve a determination of what the proper interpretation is. Second, if this were true, it would actually be a bad result for the community. If ICANN could respond to a community challenge to any Bylaw (including the HR Bylaw) by saying that there's no specific interpretation of the challenged provisions, it would be much harder to hold ICANN accountable. This essentially gives ICANN the last word on all matters of Bylaws interpretation. The Board clearly has a strong role to play in interpreting the Bylaws -- but giving them *carte blanche *to make their own interpretation runs counter to everything we've tried to do in this group. If we need to accept this argument to move forward with alternative "a," then that is another strong reason to avoid it. Greg On Mon, Jan 18, 2016 at 8:05 AM, Niels ten Oever <lists@nielstenoever.net> wrote:
Hi Bruce,
Thanks for your mail, further reply inline:
On 01/16/2016 12:42 AM, Bruce Tonkin wrote:
Hello Niels,
First of all it would be great if Samantha could produce some examples of caselaw or similar examples, because we have done quite extensive research as well as the Institute for Human Rights and Business and we didn't find any example of the risk that Samantha is referring to.
We don't really have any case law as it relates to the IRP panel's interpretation of our bylaws in this area.
A court will interpret the national law of the relevant country - and I gather from other postings to this list that national law doesn't usually apply to non-government organizations with respect to human rights. So I am not surprised that there is little case law as it relates to a non-government organization that you could find. Although laws against slavery etc I would assume apply to the private sector as well as the government sector - so I guess some human rights principles apply to all organizations.
Governments are responsible to protect human rights, therefore they protect human rights by for instance creating laws which uphold them. It would be however simplistic to say that it's only human rights law - human rights principles are getting incorporated into different areas of law. As you note yourself, slavery is illegal in practically all countries because of national legislation which are in line with human rights. So engaging in slavery is a criminal offense in many countries (thus, criminal law is applicable). Such incorporation as well as enforcement and protection is solely a duty of the governments.
The point Samantha is making is that for IRP purposes - we should wait until our community has defined how human rights principles applies to protocol parameters, domain names and IP addresses. The IRP panel is not interpreting national laws - it is interpreting whether we are complaint with our bylaws.
The IRPs, as you know, are there in order to 'compare contested actions of the ICANN Board to the Bylaws and Articles of Incorporation and to declare whether the ICANN Board has acted consistent with the provisions of those documents'.
In the language developed for the Third Draft report, we suggested the transitional bylaw requiring the development and implementation of the Framework of Interpretation. So as long as the framework is not in place but ICANN is developing it in accordance with the bylaw, ICANN cannot be held to a specific interpretation of human rights. An IRP will not be able to either reinvent or reinterpret human rights. And the commitment is a positive obligation which we'll frame and shape in WS2.
So my personal view (not a Board view) is that option (c) might be workable.
I think option A also provides protection against the risk that you (and Samantha) are sketching.
Happy to continue the discussion!
Best,
Niels
Regards, Bruce Tonkin
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Niels ten Oever Head of Digital
Article 19 www.article19.org
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
On 01/19/2016 06:56 AM, Greg Shatan wrote:
The idea that ICANN would be safe from litigation or IRP (or other forms of challenge or pressure) because it could not be held to any specific interpretation of the Bylaw is not comforting to me. First, I think this is just not true. This needs to be seen in the context of the Bylaws as a whole. The Bylaws are full of verbiage that has no particular interpretation attached to it. If ICANN is seen to be in violation of one of these provisions, I think it's fair to say that any challenge will involve a determination of what the proper interpretation is.
Except that there is quite some litertature, case-law and examples on human rights law as well as company commitments to human rights. It's not just random language.
Second, if this were true, it would actually be a bad result for the community. If ICANN could respond to a community challenge to any Bylaw (including the HR Bylaw) by saying that there's no specific interpretation of the challenged provisions, it would be much harder to hold ICANN accountable. This essentially gives ICANN the last word on all matters of Bylaws interpretation.
That is why we will work in WS2 on a specific interpretation.
The Board clearly has a strong role to play in interpreting the Bylaws -- but giving them /carte blanche /to make their own interpretation runs counter to everything we've tried to do in this group.
Agree, but as explained above, human rights are not really a tabula rasa concept.
If we need to accept this argument to move forward with alternative "a," then that is another strong reason to avoid it.
All the best, Niels
Greg
On Mon, Jan 18, 2016 at 8:05 AM, Niels ten Oever <lists@nielstenoever.net <mailto:lists@nielstenoever.net>> wrote:
Hi Bruce,
Thanks for your mail, further reply inline:
On 01/16/2016 12:42 AM, Bruce Tonkin wrote: > Hello Niels, > > >>> First of all it would be great if Samantha could produce some >>> examples of caselaw or similar examples, because we have done >>> quite extensive research as well as the Institute for Human >>> Rights and Business and we didn't find any example of the risk >>> that Samantha is referring to. > > We don't really have any case law as it relates to the IRP panel's > interpretation of our bylaws in this area. > > A court will interpret the national law of the relevant country - and > I gather from other postings to this list that national law doesn't > usually apply to non-government organizations with respect to human > rights. So I am not surprised that there is little case law as it > relates to a non-government organization that you could find. > Although laws against slavery etc I would assume apply to the private > sector as well as the government sector - so I guess some human > rights principles apply to all organizations.
Governments are responsible to protect human rights, therefore they protect human rights by for instance creating laws which uphold them. It would be however simplistic to say that it's only human rights law - human rights principles are getting incorporated into different areas of law. As you note yourself, slavery is illegal in practically all countries because of national legislation which are in line with human rights. So engaging in slavery is a criminal offense in many countries (thus, criminal law is applicable). Such incorporation as well as enforcement and protection is solely a duty of the governments.
> > The point Samantha is making is that for IRP purposes - we should > wait until our community has defined how human rights principles > applies to protocol parameters, domain names and IP addresses. The > IRP panel is not interpreting national laws - it is interpreting > whether we are complaint with our bylaws. >
The IRPs, as you know, are there in order to 'compare contested actions of the ICANN Board to the Bylaws and Articles of Incorporation and to declare whether the ICANN Board has acted consistent with the provisions of those documents'.
In the language developed for the Third Draft report, we suggested the transitional bylaw requiring the development and implementation of the Framework of Interpretation. So as long as the framework is not in place but ICANN is developing it in accordance with the bylaw, ICANN cannot be held to a specific interpretation of human rights. An IRP will not be able to either reinvent or reinterpret human rights. And the commitment is a positive obligation which we'll frame and shape in WS2.
> So my personal view (not a Board view) is that option (c) might be > workable. >
I think option A also provides protection against the risk that you (and Samantha) are sketching.
Happy to continue the discussion!
Best,
Niels
> Regards, Bruce Tonkin > > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> > https://mm.icann.org/mailman/listinfo/accountability-cross-community >
-- Niels ten Oever Head of Digital
Article 19 www.article19.org <http://www.article19.org>
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Niels ten Oever Head of Digital Article 19 www.article19.org PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9
Thanks for the share Matthew and FWIW, I agree with the intent of option c as it seem to make logical sense even though I don't know how this can be incorporated in the bylaw (nor the essence writing it into the bylaw now since the framework is a to-do action). Except that it will perhaps remove the need to have to go through the process of updating the bylaw when the FOI becomes ready, but can a bylaw text reference an inexistent document is a question that a non-legal me wonder. That said, it will be good to know if board is fine with this. Regards On 15 Jan 2016 11:08 a.m., "Mathieu Weill" <mathieu.weill@afnic.fr> wrote:
Seun, Sam, All,
« option c » is the following :
“Adopt adjusted bylaw language as part of WS1 to clarify that it can only be enforced or used in an IRP once the FoI is approved (Such as : “This articles becomes effective 30 days after approval of the FoI…”).”
Best
Mathieu
*De :* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *De la part de* Seun Ojedeji *Envoyé :* vendredi 15 janvier 2016 06:14 *À :* Leon Felipe Sanchez Ambia *Cc :* ICANN-Adler; Thomas Rickert; accountability-cross-community@icann.org; ACCT-Staff (acct-staff@icann.org); Sidley ICANN CCWG (sidleyicannccwg@sidley.com) *Objet :* Re: [CCWG-ACCT] (no subject)
Hello Leon,
It may be good to post here what "option c" text looks like. Secondly, I believe legal are only to provide legal opinion and I think the question you ask may be better directed to the board.
Regards
On 14 Jan 2016 22:09, "León Felipe Sánchez Ambía" <leonfelipe@sanchez.mx> wrote:
Hi Sam,
Thanks for this input. Would you feel comfortable with option c on human rights?
Best regards,
León
El 14/01/2016, a las 2:22 p.m., Samantha Eisner <Samantha.Eisner@icann.org> escribió:
Thanks for this note. I provide the following reaction in my role as an attorney with ICANN.
The concern raised by the Board in its comments was not solely focused on the issue of increased potential for lawsuits or IRPs. Rather, the Board focused on the *impact* of opening up ICANN to suits or IRPs based on human rights issues prior to having the framework for consideration of ICANN’s role in respecting human rights. As Bruce explained on the 12 January 2015 call, not having a framework leaves either courts or IRP panels to determine how human rights fit into ICANN’s mission. Leaving ICANN’s mission open to that type of external definitional work seems counter to all the effort of the CCWG-Accountability to confirm ICANN’s narrow and limited mission.
Including undefined commitments to human rights in the Bylaws without the framework to guide courts or IRP panels in how they should consider the scope of human rights commitments in ICANN, creates a risk for the entire community. CCWG Counsel’s suggestion that IRP usage could be limited, by example, through “preclud[ing] claims of human rights violations that are not grounded in a specific violation of an applicable law”, still leaves the question of what law would be applicable? How do we know that the laws that will be relied upon are respectful of ICANN’s limited mission?
The question isn’t really “will ICANN be subject to more suits?” As CCWG counsel noted, the potential of suit always exists. The potential of IRPs being brought on human rights grounds is probably increased if there is a specific Bylaws mention of human rights. However, these are not where the real risks occur. The question that should be considered is “Does the community wish to leave the definition of ICANN’s role in human rights to Courts or IRP panels?". Also, it is important to note that the Board’s comments do not remove the possibility of human rights being referred to in the Bylaws, but rather propose that consideration of that placement should happen after a framework is completed.
I look forward to continuing this conversation with the CCWG.
Best,
Sam
*From: *"Gregory, Holly" <holly.gregory@sidley.com> *Date: *Wednesday, January 13, 2016 at 4:28 PM *To: *Mathieu Weill <mathieu.weill@afnic.fr>, Thomas Rickert < thomas@rickert.net>, León Sánchez Ambía <leonfelipe@sanchez.mx>, " accountability-cross-community@icann.org" < accountability-cross-community@icann.org> *Cc: *"ACCT-Staff (acct-staff@icann.org)" <acct-staff@icann.org>, Sidley ICANN CCWG <sidleyicannccwg@sidley.com>, ICANN-Adler < ICANN@adlercolvin.com>, "'Rosemary E. Fei'" <rfei@adlercolvin.com>, Samantha Eisner <samantha.eisner@icann.org> *Subject: *<no subject>
Dear CCWG Co-Chairs, Members and Participants and ICANN Staff,
Attached please find our memo responding to the certified question of January 11, 2016 regarding litigation risks related to the proposed human rights bylaws provisions. Kind regards, Holly and Rosemary
*HOLLY J. GREGORY* Partner and Co-Chair Global Corporate Governance & Executive Compensation Practice
*Sidley Austin LLP* +1 212 839 5853 holly.gregory@sidley.com
**************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately.
****************************************************************************************************
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
participants (9)
-
Bruce Tonkin -
Greg Shatan -
Gregory, Holly -
León Felipe Sánchez Ambía -
Mathieu Weill -
Niels ten Oever -
Nigel Roberts -
Samantha Eisner -
Seun Ojedeji