Re: [CCWG-ACCT] Comparison of independent review processes
I am forwarding this on behalf of Jones Day, as they do not have sending rights to this list. Note from Jones Day: Dear CCWG, As Holly noted in her cover email, CCWG Counsel's "Comparison of Independent Review Processes" was provided to Jones Day in advance of it being circulated to the CCWG. In the interests of transparency, please note that Jones Day did not provide line edits identifying the areas of disagreement with CCWG Counsel, but instead provided the attached memorandum for CCWG Counsel's consideration. CCWG Counsel did not revise its Comparison document to reflect the thoughts set forth in the attached Jones Day memo. Sidley/Adler understood that this memo would be shared with the CCWG after their Comparison document was circulated. From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of "Gregory, Holly" <holly.gregory@sidley.com<mailto:holly.gregory@sidley.com>> Date: Wednesday, October 7, 2015 at 10:24 PM To: Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>, Mathieu Weill <mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>>, León Sánchez Ambía <leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>> Cc: Sidley ICANN CCWG <sidleyicannccwg@sidley.com<mailto:sidleyicannccwg@sidley.com>>, ACCT-Staff <acct-staff@icann.org<mailto:acct-staff@icann.org>>, ICANN-Adler <ICANN@adlercolvin.com<mailto:ICANN@adlercolvin.com>>, "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] Comparison of independent review processes Dear CCWG Co-chairs, Members and Participants, Attached please find a comparison of key characteristics of (1) ICANN's current IRP, (2) the IRP under the CCWG 2nd Draft Proposal (in the context of the Community Mechanism as Sole Member Model), and (3) the IRP and MEM set forth in the Board Proposal as requested in L.A. We shared this with Jones Day and ICANN Legal in advance so that they could provide any corrections regarding our understanding of the IRP and MEM as set forth in the Board Proposal. Kind regards, Holly and Rosemary Sent with Good (www.good.com) ________________________________ From: Grapsas, Rebecca Sent: Wednesday, October 07, 2015 11:45:50 PM To: Gregory, Holly Subject: **************************************************************************************************** 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 Sam. This is very useful information. It would be useful to know how this avoids going into the concerns raised by the Board on capture, complexity and uncertainty: Quote from Jones Day Memo "Specifically, under the Board’s Proposal, the decision could be enforced by an unincorporated association comprised of: (i) an individual participating SO/AC or some grouping of participating SOs/ACs; (ii) the members of multiple participating SOs/ACs; or (iii) chairs of multiple participating SOs/ACs. In the alternative, the individual (natural) people serving as chairs of the participating SOs/ACs could enforce the award in an individual capacity." It would be great if we could have more clarity on this I think. Best regards, León
El 08/10/2015, a las 1:47 p.m., Samantha Eisner <Samantha.Eisner@icann.org> escribió:
I am forwarding this on behalf of Jones Day, as they do not have sending rights to this list.
Note from Jones Day:
Dear CCWG,
As Holly noted in her cover email, CCWG Counsel's "Comparison of Independent Review Processes" was provided to Jones Day in advance of it being circulated to the CCWG. In the interests of transparency, please note that Jones Day did not provide line edits identifying the areas of disagreement with CCWG Counsel, but instead provided the attached memorandum for CCWG Counsel's consideration. CCWG Counsel did not revise its Comparison document to reflect the thoughts set forth in the attached Jones Day memo. Sidley/Adler understood that this memo would be shared with the CCWG after their Comparison document was circulated.
From: <accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> on behalf of "Gregory, Holly" <holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>> Date: Wednesday, October 7, 2015 at 10:24 PM To: Thomas Rickert <thomas@rickert.net <mailto:thomas@rickert.net>>, Mathieu Weill <mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>>, León Sánchez Ambía <leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>> Cc: Sidley ICANN CCWG <sidleyicannccwg@sidley.com <mailto:sidleyicannccwg@sidley.com>>, ACCT-Staff <acct-staff@icann.org <mailto:acct-staff@icann.org>>, ICANN-Adler <ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com>>, "accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] Comparison of independent review processes
Dear CCWG Co-chairs, Members and Participants, Attached please find a comparison of key characteristics of (1) ICANN's current IRP, (2) the IRP under the CCWG 2nd Draft Proposal (in the context of the Community Mechanism as Sole Member Model), and (3) the IRP and MEM set forth in the Board Proposal as requested in L.A. We shared this with Jones Day and ICANN Legal in advance so that they could provide any corrections regarding our understanding of the IRP and MEM as set forth in the Board Proposal. Kind regards, Holly and Rosemary
Sent with Good (www.good.com <http://www.good.com/>)
From: Grapsas, Rebecca Sent: Wednesday, October 07, 2015 11:45:50 PM To: Gregory, Holly Subject:
**************************************************************************************************** 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.
**************************************************************************************************** <Oct. 7, 2015 Memo re Enforceability of Binding Arbitration[1].pdf>
Dear Co-Chairs, Based on the mail forwarded by Samantha, I sense some communication issues among CCWG legal and Jones day. I think it will be good for Co-Chairs to follow this up in other to avoid such in future. I don't want to believe yet that the CCWG legal is not acting in a neutral manner in this process (since Jones day is considered not to be acting neutral by default) As to your specific question Leon, I note that the approach proposed does not in any way turn SO/AC to member. I also note that 3 options where provided and it seem you only highlighted 1 of them. For me, what we have been made to believe at CCWG is that enforceability is NOT possible with the board proposed approach and it will be good to answer that fundamental question before even considering complexity/capture. Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 8 Oct 2015 20:28, "León Felipe Sánchez Ambía" <leonfelipe@sanchez.mx> wrote:
Thanks Sam. This is very useful information.
It would be useful to know how this avoids going into the concerns raised by the Board on capture, complexity and uncertainty:
Quote from Jones Day Memo
"Specifically, under the Board’s Proposal, the decision could be *enforced by an unincorporated association* comprised of: (i) *an individual participating SO/AC* or some grouping of participating SOs/ACs; (ii) the members of multiple participating SOs/ACs; or (iii) chairs of multiple participating SOs/ACs. In the alternative, the individual (natural) *people serving as chairs of the participating SOs/ACs could enforce the award in an individual capacity.*"
It would be great if we could have more clarity on this I think.
Best regards,
León
El 08/10/2015, a las 1:47 p.m., Samantha Eisner <Samantha.Eisner@icann.org> escribió:
I am forwarding this on behalf of Jones Day, as they do not have sending rights to this list.
Note from Jones Day:
Dear CCWG,
As Holly noted in her cover email, CCWG Counsel's "Comparison of Independent Review Processes" was provided to Jones Day in advance of it being circulated to the CCWG. In the interests of transparency, please note that Jones Day did not provide line edits identifying the areas of disagreement with CCWG Counsel, but instead provided the attached memorandum for CCWG Counsel's consideration. CCWG Counsel did not revise its Comparison document to reflect the thoughts set forth in the attached Jones Day memo. Sidley/Adler understood that this memo would be shared with the CCWG after their Comparison document was circulated.
From: <accountability-cross-community-bounces@icann.org> on behalf of "Gregory, Holly" <holly.gregory@sidley.com> Date: Wednesday, October 7, 2015 at 10:24 PM To: Thomas Rickert <thomas@rickert.net>, Mathieu Weill < mathieu.weill@afnic.fr>, León Sánchez Ambía <leonfelipe@sanchez.mx> Cc: Sidley ICANN CCWG <sidleyicannccwg@sidley.com>, ACCT-Staff < acct-staff@icann.org>, ICANN-Adler <ICANN@adlercolvin.com>, " accountability-cross-community@icann.org" < accountability-cross-community@icann.org> Subject: [CCWG-ACCT] Comparison of independent review processes
Dear CCWG Co-chairs, Members and Participants, Attached please find a comparison of key characteristics of (1) ICANN's current IRP, (2) the IRP under the CCWG 2nd Draft Proposal (in the context of the Community Mechanism as Sole Member Model), and (3) the IRP and MEM set forth in the Board Proposal as requested in L.A. We shared this with Jones Day and ICANN Legal in advance so that they could provide any corrections regarding our understanding of the IRP and MEM as set forth in the Board Proposal. Kind regards, Holly and Rosemary
Sent with Good (www.good.com)
------------------------------ *From:* Grapsas, Rebecca *Sent:* Wednesday, October 07, 2015 11:45:50 PM *To:* Gregory, Holly *Subject:*
**************************************************************************************************** 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.
**************************************************************************************************** <Oct. 7, 2015 Memo re Enforceability of Binding Arbitration[1].pdf>
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
I heartily disagree that counsel to the CCWG – ACCT are not acting in a neutral manner. In fact, they have been, in my opinion, most careful to be very neutral and are merely reciting what the California statutes say about enforceability of community powers. The fact that you don’t like their answers does not mean the answers are not objective. Further, as we all know, the advice provided depends on the question asked. For example, if the Board asks Jones Day for a memo on whether binding arbitration is enforceable (and ignores all difficulties in enforcement leading up to the point of binding arbitration), then they will get an opinion that binding arbitration is enforceable, otherwise known as Alternative Dispute Resolution 101 – could well have been drafted by a first year associate. I would suggest we all refrain from accusing counsel of violating the ethics codes – this is absurd from my point of view given who these firms are. Anne [cid:image001.gif@01D10288.11159550] Anne E. Aikman-Scalese, Of Counsel Lewis Roca Rothgerber LLP One South Church Avenue Suite 700 | Tucson, Arizona 85701-1611 (T) 520.629.4428 | (F) 520.879.4725 AAikman@lrrlaw.com<mailto:AAikman@lrrlaw.com> | www.LRRLaw.com<http://www.lrrlaw.com/> From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Seun Ojedeji Sent: Thursday, October 08, 2015 12:44 PM To: Leon Felipe Sanchez Ambia Cc: ICANN-Adler; Thomas Rickert; accountability-cross-community@icann.org; ACCT-Staff; Sidley ICANN CCWG Subject: Re: [CCWG-ACCT] Comparison of independent review processes Dear Co-Chairs, Based on the mail forwarded by Samantha, I sense some communication issues among CCWG legal and Jones day. I think it will be good for Co-Chairs to follow this up in other to avoid such in future. I don't want to believe yet that the CCWG legal is not acting in a neutral manner in this process (since Jones day is considered not to be acting neutral by default) As to your specific question Leon, I note that the approach proposed does not in any way turn SO/AC to member. I also note that 3 options where provided and it seem you only highlighted 1 of them. For me, what we have been made to believe at CCWG is that enforceability is NOT possible with the board proposed approach and it will be good to answer that fundamental question before even considering complexity/capture. Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 8 Oct 2015 20:28, "León Felipe Sánchez Ambía" <leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>> wrote: Thanks Sam. This is very useful information. It would be useful to know how this avoids going into the concerns raised by the Board on capture, complexity and uncertainty: Quote from Jones Day Memo "Specifically, under the Board’s Proposal, the decision could be enforced by an unincorporated association comprised of: (i) an individual participating SO/AC or some grouping of participating SOs/ACs; (ii) the members of multiple participating SOs/ACs; or (iii) chairs of multiple participating SOs/ACs. In the alternative, the individual (natural) people serving as chairs of the participating SOs/ACs could enforce the award in an individual capacity." It would be great if we could have more clarity on this I think. Best regards, León El 08/10/2015, a las 1:47 p.m., Samantha Eisner <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> escribió: I am forwarding this on behalf of Jones Day, as they do not have sending rights to this list. Note from Jones Day: Dear CCWG, As Holly noted in her cover email, CCWG Counsel's "Comparison of Independent Review Processes" was provided to Jones Day in advance of it being circulated to the CCWG. In the interests of transparency, please note that Jones Day did not provide line edits identifying the areas of disagreement with CCWG Counsel, but instead provided the attached memorandum for CCWG Counsel's consideration. CCWG Counsel did not revise its Comparison document to reflect the thoughts set forth in the attached Jones Day memo. Sidley/Adler understood that this memo would be shared with the CCWG after their Comparison document was circulated. From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of "Gregory, Holly" <holly.gregory@sidley.com<mailto:holly.gregory@sidley.com>> Date: Wednesday, October 7, 2015 at 10:24 PM To: Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>, Mathieu Weill <mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>>, León Sánchez Ambía <leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>> Cc: Sidley ICANN CCWG <sidleyicannccwg@sidley.com<mailto:sidleyicannccwg@sidley.com>>, ACCT-Staff <acct-staff@icann.org<mailto:acct-staff@icann.org>>, ICANN-Adler <ICANN@adlercolvin.com<mailto:ICANN@adlercolvin.com>>, "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] Comparison of independent review processes Dear CCWG Co-chairs, Members and Participants, Attached please find a comparison of key characteristics of (1) ICANN's current IRP, (2) the IRP under the CCWG 2nd Draft Proposal (in the context of the Community Mechanism as Sole Member Model), and (3) the IRP and MEM set forth in the Board Proposal as requested in L.A. We shared this with Jones Day and ICANN Legal in advance so that they could provide any corrections regarding our understanding of the IRP and MEM as set forth in the Board Proposal. Kind regards, Holly and Rosemary Sent with Good (www.good.com<http://www.good.com/>) ________________________________ From: Grapsas, Rebecca Sent: Wednesday, October 07, 2015 11:45:50 PM To: Gregory, Holly Subject: **************************************************************************************************** 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. **************************************************************************************************** <Oct. 7, 2015 Memo re Enforceability of Binding Arbitration[1].pdf> _______________________________________________ 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 ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.
Thanks Sam for this information. I also have a follow up question and would be interested to hear the CCWG lawyers' (Sidley Austin and Adler Colvin) view on this. Under the MEM proposed by ICANN, who exactly and on which basis has the right to commence proceedings in order to enforce the binding arbitration? Should SO/ACs be unincorporated associations? Should SO/ACs give power of attorney to their chairs or one of their member? I would appreciate some clarification on this matter. Thank you, Izumi On 2015/10/09 4:28, León Felipe Sánchez Ambía wrote:
Thanks Sam. This is very useful information.
It would be useful to know how this avoids going into the concerns raised by the Board on capture, complexity and uncertainty:
Quote from Jones Day Memo
"Specifically, under the Board’s Proposal, the decision could be enforced by an unincorporated association comprised of: (i) an individual participating SO/AC or some grouping of participating SOs/ACs; (ii) the members of multiple participating SOs/ACs; or (iii) chairs of multiple participating SOs/ACs. In the alternative, the individual (natural) people serving as chairs of the participating SOs/ACs could enforce the award in an individual capacity."
It would be great if we could have more clarity on this I think.
Best regards,
León
El 08/10/2015, a las 1:47 p.m., Samantha Eisner <Samantha.Eisner@icann.org> escribió:
I am forwarding this on behalf of Jones Day, as they do not have sending rights to this list.
Note from Jones Day:
Dear CCWG,
As Holly noted in her cover email, CCWG Counsel's "Comparison of Independent Review Processes" was provided to Jones Day in advance of it being circulated to the CCWG. In the interests of transparency, please note that Jones Day did not provide line edits identifying the areas of disagreement with CCWG Counsel, but instead provided the attached memorandum for CCWG Counsel's consideration. CCWG Counsel did not revise its Comparison document to reflect the thoughts set forth in the attached Jones Day memo. Sidley/Adler understood that this memo would be shared with the CCWG after their Comparison document was circulated.
From: <accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> on behalf of "Gregory, Holly" <holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>> Date: Wednesday, October 7, 2015 at 10:24 PM To: Thomas Rickert <thomas@rickert.net <mailto:thomas@rickert.net>>, Mathieu Weill <mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>>, León Sánchez Ambía <leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>> Cc: Sidley ICANN CCWG <sidleyicannccwg@sidley.com <mailto:sidleyicannccwg@sidley.com>>, ACCT-Staff <acct-staff@icann.org <mailto:acct-staff@icann.org>>, ICANN-Adler <ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com>>, "accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] Comparison of independent review processes
Dear CCWG Co-chairs, Members and Participants, Attached please find a comparison of key characteristics of (1) ICANN's current IRP, (2) the IRP under the CCWG 2nd Draft Proposal (in the context of the Community Mechanism as Sole Member Model), and (3) the IRP and MEM set forth in the Board Proposal as requested in L.A. We shared this with Jones Day and ICANN Legal in advance so that they could provide any corrections regarding our understanding of the IRP and MEM as set forth in the Board Proposal. Kind regards, Holly and Rosemary
Sent with Good (www.good.com <http://www.good.com/>)
From: Grapsas, Rebecca Sent: Wednesday, October 07, 2015 11:45:50 PM To: Gregory, Holly Subject:
**************************************************************************************************** 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.
**************************************************************************************************** <Oct. 7, 2015 Memo re Enforceability of Binding Arbitration[1].pdf>
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Holly, dear Rosemary, I think this is a key question. Could you kindly provide an answer? Saludos, León
El 09/10/2015, a las 5:02 p.m., Izumi Okutani <izumi@nic.ad.jp> escribió:
Thanks Sam for this information.
I also have a follow up question and would be interested to hear the CCWG lawyers' (Sidley Austin and Adler Colvin) view on this.
Under the MEM proposed by ICANN, who exactly and on which basis has the right to commence proceedings in order to enforce the binding arbitration?
Should SO/ACs be unincorporated associations? Should SO/ACs give power of attorney to their chairs or one of their member?
I would appreciate some clarification on this matter.
Thank you, Izumi
On 2015/10/09 4:28, León Felipe Sánchez Ambía wrote: Thanks Sam. This is very useful information.
It would be useful to know how this avoids going into the concerns raised by the Board on capture, complexity and uncertainty:
Quote from Jones Day Memo
"Specifically, under the Board’s Proposal, the decision could be enforced by an unincorporated association comprised of: (i) an individual participating SO/AC or some grouping of participating SOs/ACs; (ii) the members of multiple participating SOs/ACs; or (iii) chairs of multiple participating SOs/ACs. In the alternative, the individual (natural) people serving as chairs of the participating SOs/ACs could enforce the award in an individual capacity."
It would be great if we could have more clarity on this I think.
Best regards,
León
El 08/10/2015, a las 1:47 p.m., Samantha Eisner <Samantha.Eisner@icann.org> escribió:
I am forwarding this on behalf of Jones Day, as they do not have sending rights to this list.
Note from Jones Day:
Dear CCWG,
As Holly noted in her cover email, CCWG Counsel's "Comparison of Independent Review Processes" was provided to Jones Day in advance of it being circulated to the CCWG. In the interests of transparency, please note that Jones Day did not provide line edits identifying the areas of disagreement with CCWG Counsel, but instead provided the attached memorandum for CCWG Counsel's consideration. CCWG Counsel did not revise its Comparison document to reflect the thoughts set forth in the attached Jones Day memo. Sidley/Adler understood that this memo would be shared with the CCWG after their Comparison document was circulated.
From: <accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> on behalf of "Gregory, Holly" <holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>> Date: Wednesday, October 7, 2015 at 10:24 PM To: Thomas Rickert <thomas@rickert.net <mailto:thomas@rickert.net>>, Mathieu Weill <mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>>, León Sánchez Ambía <leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>> Cc: Sidley ICANN CCWG <sidleyicannccwg@sidley.com <mailto:sidleyicannccwg@sidley.com>>, ACCT-Staff <acct-staff@icann.org <mailto:acct-staff@icann.org>>, ICANN-Adler <ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com>>, "accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] Comparison of independent review processes
Dear CCWG Co-chairs, Members and Participants, Attached please find a comparison of key characteristics of (1) ICANN's current IRP, (2) the IRP under the CCWG 2nd Draft Proposal (in the context of the Community Mechanism as Sole Member Model), and (3) the IRP and MEM set forth in the Board Proposal as requested in L.A. We shared this with Jones Day and ICANN Legal in advance so that they could provide any corrections regarding our understanding of the IRP and MEM as set forth in the Board Proposal. Kind regards, Holly and Rosemary
Sent with Good (www.good.com <http://www.good.com/>)
From: Grapsas, Rebecca Sent: Wednesday, October 07, 2015 11:45:50 PM To: Gregory, Holly Subject:
**************************************************************************************************** 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.
**************************************************************************************************** <Oct. 7, 2015 Memo re Enforceability of Binding Arbitration[1].pdf>
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
We will add it to the certified list of questions. Sent with Good (www.good.com) ________________________________ From: León Felipe Sánchez Ambía Sent: Friday, October 09, 2015 05:53:46 PM To: Izumi Okutani Cc: Samantha Eisner; ICANN-Adler; Thomas Rickert; accountability-cross-community@icann.org; ACCT-Staff; Sidley ICANN CCWG; Mathieu Weill Subject: Re: [CCWG-ACCT] Comparison of independent review processes Dear Holly, dear Rosemary, I think this is a key question. Could you kindly provide an answer? Saludos, León
El 09/10/2015, a las 5:02 p.m., Izumi Okutani <izumi@nic.ad.jp> escribió:
Thanks Sam for this information.
I also have a follow up question and would be interested to hear the CCWG lawyers' (Sidley Austin and Adler Colvin) view on this.
Under the MEM proposed by ICANN, who exactly and on which basis has the right to commence proceedings in order to enforce the binding arbitration?
Should SO/ACs be unincorporated associations? Should SO/ACs give power of attorney to their chairs or one of their member?
I would appreciate some clarification on this matter.
Thank you, Izumi
On 2015/10/09 4:28, León Felipe Sánchez Ambía wrote: Thanks Sam. This is very useful information.
It would be useful to know how this avoids going into the concerns raised by the Board on capture, complexity and uncertainty:
Quote from Jones Day Memo
"Specifically, under the Board’s Proposal, the decision could be enforced by an unincorporated association comprised of: (i) an individual participating SO/AC or some grouping of participating SOs/ACs; (ii) the members of multiple participating SOs/ACs; or (iii) chairs of multiple participating SOs/ACs. In the alternative, the individual (natural) people serving as chairs of the participating SOs/ACs could enforce the award in an individual capacity."
It would be great if we could have more clarity on this I think.
Best regards,
León
El 08/10/2015, a las 1:47 p.m., Samantha Eisner <Samantha.Eisner@icann.org> escribió:
I am forwarding this on behalf of Jones Day, as they do not have sending rights to this list.
Note from Jones Day:
Dear CCWG,
As Holly noted in her cover email, CCWG Counsel's "Comparison of Independent Review Processes" was provided to Jones Day in advance of it being circulated to the CCWG. In the interests of transparency, please note that Jones Day did not provide line edits identifying the areas of disagreement with CCWG Counsel, but instead provided the attached memorandum for CCWG Counsel's consideration. CCWG Counsel did not revise its Comparison document to reflect the thoughts set forth in the attached Jones Day memo. Sidley/Adler understood that this memo would be shared with the CCWG after their Comparison document was circulated.
From: <accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> on behalf of "Gregory, Holly" <holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>> Date: Wednesday, October 7, 2015 at 10:24 PM To: Thomas Rickert <thomas@rickert.net <mailto:thomas@rickert.net>>, Mathieu Weill <mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>>, León Sánchez Ambía <leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>> Cc: Sidley ICANN CCWG <sidleyicannccwg@sidley.com <mailto:sidleyicannccwg@sidley.com>>, ACCT-Staff <acct-staff@icann.org <mailto:acct-staff@icann.org>>, ICANN-Adler <ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com>>, "accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] Comparison of independent review processes
Dear CCWG Co-chairs, Members and Participants, Attached please find a comparison of key characteristics of (1) ICANN's current IRP, (2) the IRP under the CCWG 2nd Draft Proposal (in the context of the Community Mechanism as Sole Member Model), and (3) the IRP and MEM set forth in the Board Proposal as requested in L.A. We shared this with Jones Day and ICANN Legal in advance so that they could provide any corrections regarding our understanding of the IRP and MEM as set forth in the Board Proposal. Kind regards, Holly and Rosemary
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From: Grapsas, Rebecca Sent: Wednesday, October 07, 2015 11:45:50 PM To: Gregory, Holly Subject:
**************************************************************************************************** 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.
**************************************************************************************************** <Oct. 7, 2015 Memo re Enforceability of Binding Arbitration[1].pdf>
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Hi Holly, I believe this is just a follow up isn't it ? My understanding was that Izumi's question was already addressed in the various memos ? Mathieu Weill --------------- Depuis mon mobile, désolé pour le style
Le 10 oct. 2015 à 01:19, Gregory, Holly <holly.gregory@sidley.com> a écrit :
We will add it to the certified list of questions.
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From: León Felipe Sánchez Ambía Sent: Friday, October 09, 2015 05:53:46 PM To: Izumi Okutani Cc: Samantha Eisner; ICANN-Adler; Thomas Rickert; accountability-cross-community@icann.org; ACCT-Staff; Sidley ICANN CCWG; Mathieu Weill Subject: Re: [CCWG-ACCT] Comparison of independent review processes
Dear Holly, dear Rosemary,
I think this is a key question. Could you kindly provide an answer?
Saludos,
León
El 09/10/2015, a las 5:02 p.m., Izumi Okutani <izumi@nic.ad.jp> escribió:
Thanks Sam for this information.
I also have a follow up question and would be interested to hear the CCWG lawyers' (Sidley Austin and Adler Colvin) view on this.
Under the MEM proposed by ICANN, who exactly and on which basis has the right to commence proceedings in order to enforce the binding arbitration?
Should SO/ACs be unincorporated associations? Should SO/ACs give power of attorney to their chairs or one of their member?
I would appreciate some clarification on this matter.
Thank you, Izumi
On 2015/10/09 4:28, León Felipe Sánchez Ambía wrote: Thanks Sam. This is very useful information.
It would be useful to know how this avoids going into the concerns raised by the Board on capture, complexity and uncertainty:
Quote from Jones Day Memo
"Specifically, under the Board’s Proposal, the decision could be enforced by an unincorporated association comprised of: (i) an individual participating SO/AC or some grouping of participating SOs/ACs; (ii) the members of multiple participating SOs/ACs; or (iii) chairs of multiple participating SOs/ACs. In the alternative, the individual (natural) people serving as chairs of the participating SOs/ACs could enforce the award in an individual capacity."
It would be great if we could have more clarity on this I think.
Best regards,
León
El 08/10/2015, a las 1:47 p.m., Samantha Eisner <Samantha.Eisner@icann.org> escribió:
I am forwarding this on behalf of Jones Day, as they do not have sending rights to this list.
Note from Jones Day:
Dear CCWG,
As Holly noted in her cover email, CCWG Counsel's "Comparison of Independent Review Processes" was provided to Jones Day in advance of it being circulated to the CCWG. In the interests of transparency, please note that Jones Day did not provide line edits identifying the areas of disagreement with CCWG Counsel, but instead provided the attached memorandum for CCWG Counsel's consideration. CCWG Counsel did not revise its Comparison document to reflect the thoughts set forth in the attached Jones Day memo. Sidley/Adler understood that this memo would be shared with the CCWG after their Comparison document was circulated.
From: <accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> on behalf of "Gregory, Holly" <holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>> Date: Wednesday, October 7, 2015 at 10:24 PM To: Thomas Rickert <thomas@rickert.net <mailto:thomas@rickert.net>>, Mathieu Weill <mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>>, León Sánchez Ambía <leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>> Cc: Sidley ICANN CCWG <sidleyicannccwg@sidley.com <mailto:sidleyicannccwg@sidley.com>>, ACCT-Staff <acct-staff@icann.org <mailto:acct-staff@icann.org>>, ICANN-Adler <ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com>>, "accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] Comparison of independent review processes
Dear CCWG Co-chairs, Members and Participants, Attached please find a comparison of key characteristics of (1) ICANN's current IRP, (2) the IRP under the CCWG 2nd Draft Proposal (in the context of the Community Mechanism as Sole Member Model), and (3) the IRP and MEM set forth in the Board Proposal as requested in L.A. We shared this with Jones Day and ICANN Legal in advance so that they could provide any corrections regarding our understanding of the IRP and MEM as set forth in the Board Proposal. Kind regards, Holly and Rosemary
Sent with Good (www.good.com <http://www.good.com/>)
From: Grapsas, Rebecca Sent: Wednesday, October 07, 2015 11:45:50 PM To: Gregory, Holly Subject:
**************************************************************************************************** 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.
**************************************************************************************************** <Oct. 7, 2015 Memo re Enforceability of Binding Arbitration[1].pdf>
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Yes Sent with Good (www.good.com) ________________________________ From: Mathieu Weill Sent: Saturday, October 10, 2015 03:57:11 AM To: Gregory, Holly Cc: León Felipe Sánchez Ambía; Izumi Okutani; Samantha Eisner; ICANN-Adler; Thomas Rickert; accountability-cross-community@icann.org; ACCT-Staff; Sidley ICANN CCWG Subject: Re: [CCWG-ACCT] Comparison of independent review processes Hi Holly, I believe this is just a follow up isn't it ? My understanding was that Izumi's question was already addressed in the various memos ? Mathieu Weill --------------- Depuis mon mobile, désolé pour le style Le 10 oct. 2015 à 01:19, Gregory, Holly <holly.gregory@sidley.com<mailto:holly.gregory@sidley.com>> a écrit : We will add it to the certified list of questions. Sent with Good (www.good.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.good.com&d=CwMGaQ&c=...>) ________________________________ From: León Felipe Sánchez Ambía Sent: Friday, October 09, 2015 05:53:46 PM To: Izumi Okutani Cc: Samantha Eisner; ICANN-Adler; Thomas Rickert; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>; ACCT-Staff; Sidley ICANN CCWG; Mathieu Weill Subject: Re: [CCWG-ACCT] Comparison of independent review processes Dear Holly, dear Rosemary, I think this is a key question. Could you kindly provide an answer? Saludos, León
El 09/10/2015, a las 5:02 p.m., Izumi Okutani <izumi@nic.ad.jp<mailto:izumi@nic.ad.jp>> escribió:
Thanks Sam for this information.
I also have a follow up question and would be interested to hear the CCWG lawyers' (Sidley Austin and Adler Colvin) view on this.
Under the MEM proposed by ICANN, who exactly and on which basis has the right to commence proceedings in order to enforce the binding arbitration?
Should SO/ACs be unincorporated associations? Should SO/ACs give power of attorney to their chairs or one of their member?
I would appreciate some clarification on this matter.
Thank you, Izumi
On 2015/10/09 4:28, León Felipe Sánchez Ambía wrote: Thanks Sam. This is very useful information.
It would be useful to know how this avoids going into the concerns raised by the Board on capture, complexity and uncertainty:
Quote from Jones Day Memo
"Specifically, under the Board’s Proposal, the decision could be enforced by an unincorporated association comprised of: (i) an individual participating SO/AC or some grouping of participating SOs/ACs; (ii) the members of multiple participating SOs/ACs; or (iii) chairs of multiple participating SOs/ACs. In the alternative, the individual (natural) people serving as chairs of the participating SOs/ACs could enforce the award in an individual capacity."
It would be great if we could have more clarity on this I think.
Best regards,
León
El 08/10/2015, a las 1:47 p.m., Samantha Eisner <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> escribió:
I am forwarding this on behalf of Jones Day, as they do not have sending rights to this list.
Note from Jones Day:
Dear CCWG,
As Holly noted in her cover email, CCWG Counsel's "Comparison of Independent Review Processes" was provided to Jones Day in advance of it being circulated to the CCWG. In the interests of transparency, please note that Jones Day did not provide line edits identifying the areas of disagreement with CCWG Counsel, but instead provided the attached memorandum for CCWG Counsel's consideration. CCWG Counsel did not revise its Comparison document to reflect the thoughts set forth in the attached Jones Day memo. Sidley/Adler understood that this memo would be shared with the CCWG after their Comparison document was circulated.
From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> <mailto:accountability-cross-community-bounces@icann.org>> on behalf of "Gregory, Holly" <holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> <mailto:holly.gregory@sidley.com>> Date: Wednesday, October 7, 2015 at 10:24 PM To: Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net> <mailto:thomas@rickert.net>>, Mathieu Weill <mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr> <mailto:mathieu.weill@afnic.fr>>, León Sánchez Ambía <leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx> <mailto:leonfelipe@sanchez.mx>> Cc: Sidley ICANN CCWG <sidleyicannccwg@sidley.com<mailto:sidleyicannccwg@sidley.com> <mailto:sidleyicannccwg@sidley.com>>, ACCT-Staff <acct-staff@icann.org<mailto:acct-staff@icann.org> <mailto:acct-staff@icann.org>>, ICANN-Adler <ICANN@adlercolvin.com<mailto:ICANN@adlercolvin.com> <mailto:ICANN@adlercolvin.com>>, "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] Comparison of independent review processes
Dear CCWG Co-chairs, Members and Participants, Attached please find a comparison of key characteristics of (1) ICANN's current IRP, (2) the IRP under the CCWG 2nd Draft Proposal (in the context of the Community Mechanism as Sole Member Model), and (3) the IRP and MEM set forth in the Board Proposal as requested in L.A. We shared this with Jones Day and ICANN Legal in advance so that they could provide any corrections regarding our understanding of the IRP and MEM as set forth in the Board Proposal. Kind regards, Holly and Rosemary
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From: Grapsas, Rebecca Sent: Wednesday, October 07, 2015 11:45:50 PM To: Gregory, Holly Subject:
**************************************************************************************************** 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.
**************************************************************************************************** <Oct. 7, 2015 Memo re Enforceability of Binding Arbitration[1].pdf>
_______________________________________________ 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<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMGaQ&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=Y3W1B8IcX1SY0EOvKJdcFN81Ji-urGH7SNUOHTAyVts&s=X3SAMQygMxspbJy6JUeF2QUmhkTBC86gkINvweP7pKw&e=>
Thanks for forwarding this memo. The odd thing about the memo is that it STARTS from the point of having a binding arbitration decision without addressing: 1. What it takes under the Board proposal to get to the point of having that binding decision (including FULL consensus among all SOs and ACs for every decision, selection of arbitrators - including fighting over who they are, figuring out when they MIGHT be available (cause all the best ones are booked months in advance). It is not even super clear to me that the Board will tolerate live witnesses in the arbitration - this is because the cited Rules can always be modified by the parties by contract and that could come out as a Board proposal later in the game if the MEM is adopted - to save money. 2. What happens to the status quo during the long argumentative process of binding arbitration - for example, is a director removed or not removed? Is a budget approved or not approved? In the private sector, a long binding arbitration process can be a very good way to avoid an injunction because it stops the plaintiff (in this case the Community) from enforcing its action in court. In short, the memo only addresses what happens when you finally get a binding arbitration decision and that is at the very end of the proposed very lengthy MEM enforceability process. Anyone who saw the time it took to get a decision in .africa (with all the surrounding circumstances) should be very wary of claims that the MEM is just as enforceable as the single member model. As our CCWG-ACCT has advised on many occasions and very consistently, it is simply not. To state that this memo answers the community's concerns about the Board's proposal is misleading. It simply restates the fact that a binding arbitration order is enforceable in court. That in and of itself does not mean the MEM proposal provides effective enforcement. Anne [cid:image001.gif@01D10284.778C3130] Anne E. Aikman-Scalese, Of Counsel Lewis Roca Rothgerber LLP One South Church Avenue Suite 700 | Tucson, Arizona 85701-1611 (T) 520.629.4428 | (F) 520.879.4725 AAikman@lrrlaw.com<mailto:AAikman@lrrlaw.com> | www.LRRLaw.com<http://www.lrrlaw.com/> From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Samantha Eisner Sent: Thursday, October 08, 2015 11:48 AM To: Gregory, Holly; Thomas Rickert; Mathieu Weill; León Felipe Sánchez Ambía Cc: Sidley ICANN CCWG; ACCT-Staff; ICANN-Adler; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Comparison of independent review processes I am forwarding this on behalf of Jones Day, as they do not have sending rights to this list. Note from Jones Day: Dear CCWG, As Holly noted in her cover email, CCWG Counsel's "Comparison of Independent Review Processes" was provided to Jones Day in advance of it being circulated to the CCWG. In the interests of transparency, please note that Jones Day did not provide line edits identifying the areas of disagreement with CCWG Counsel, but instead provided the attached memorandum for CCWG Counsel's consideration. CCWG Counsel did not revise its Comparison document to reflect the thoughts set forth in the attached Jones Day memo. Sidley/Adler understood that this memo would be shared with the CCWG after their Comparison document was circulated. From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of "Gregory, Holly" <holly.gregory@sidley.com<mailto:holly.gregory@sidley.com>> Date: Wednesday, October 7, 2015 at 10:24 PM To: Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>, Mathieu Weill <mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>>, León Sánchez Ambía <leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>> Cc: Sidley ICANN CCWG <sidleyicannccwg@sidley.com<mailto:sidleyicannccwg@sidley.com>>, ACCT-Staff <acct-staff@icann.org<mailto:acct-staff@icann.org>>, ICANN-Adler <ICANN@adlercolvin.com<mailto:ICANN@adlercolvin.com>>, "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] Comparison of independent review processes Dear CCWG Co-chairs, Members and Participants, Attached please find a comparison of key characteristics of (1) ICANN's current IRP, (2) the IRP under the CCWG 2nd Draft Proposal (in the context of the Community Mechanism as Sole Member Model), and (3) the IRP and MEM set forth in the Board Proposal as requested in L.A. We shared this with Jones Day and ICANN Legal in advance so that they could provide any corrections regarding our understanding of the IRP and MEM as set forth in the Board Proposal. Kind regards, Holly and Rosemary Sent with Good (www.good.com<http://www.good.com>) ________________________________ From: Grapsas, Rebecca Sent: Wednesday, October 07, 2015 11:45:50 PM To: Gregory, Holly Subject: **************************************************************************************************** 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. **************************************************************************************************** ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. 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participants (7)
-
Aikman-Scalese, Anne -
Gregory, Holly -
Izumi Okutani -
León Felipe Sánchez Ambía -
Mathieu Weill -
Samantha Eisner -
Seun Ojedeji