Fwd: Malcom Hutty/ BBurr Consolidated draft on IRP text
Dear Colleagues, FYI, feedback from our lawyers on the IRP text. Becky is implementaing changes. -------- Message transféré -------- Sujet : [CCWG-ACCT] Malcom Hutty/ BBurr Consolidated draft on IRP text Date : Fri, 31 Jul 2015 00:04:02 +0000 De : Gregory, Holly <holly.gregory@sidley.com> Pour : León Felipe Sánchez Ambía <leonfelipe@sanchez.mx>, Thomas Rickert <thomas@rickert.net>, Mathieu Weill <mathieu.weill@afnic.fr>, Becky Burr <Becky.Burr@neustar.biz>, Grace Abuhamad <grace.abuhamad@icann.org>, acct-staff@icann.org <acct-staff@icann.org> Copie à : Sidley ICANN CCWG <sidleyicannccwg@sidley.com>, ICANN-Adler <ICANN@adlercolvin.com>, Rosemary E. Fei <rfei@adlercolvin.com> Dear Co-Chairs, We have reviewed the IRP draft and have relatively few comments. Overall it looks in good shape. We do have one significant concern however and it relates to the following paragraph which was added in the very last draft: _20 b. CCWG-Accountability confirms that the IRP Panel has the power to stay a Board decision or action. It further recommends that it also have the power to require ICANN to take a decision or action on an interim basis, until the Board has had a chance to consider and decide how to implement an IRP Panel decision._ We strongly recommend this paragraph be deleted. We believe that it is not only unenforceable but that it is inconsistent with California law and the fiduciary duties of directors (as indicated in prior memos). We also urge extreme caution in the next several days with these types of last minute additions and language changes. Holly and Rosemary *HOLLY**J.**GREGORY* Partner *Sidley Austin LLP** *+1.212.839.5853 holly.gregory@sidley.com <mailto:holly.gregory@sidley.com> *From:*León Felipe Sánchez Ambía [mailto:leonfelipe@sanchez.mx] *Sent:* Thursday, July 30, 2015 6:17 PM *To:* Gregory, Holly; Rosemary E. Fei; Sidley ICANN CCWG; ICANN-Adler; Thomas Rickert; Mathieu Weill; Becky Burr *Subject:* Fwd: [CCWG-ACCT] Malcom Hutty/ BBurr Consolidated draft on IRP text Dear Holly, dear Rosemary, Sorry for briefness. Here are redline versions of the IRP document for your review and comments Saludos, León Enviado desde el móvil. Disculpa brevedad y errores tipográficos. Inicio del mensaje reenviado: *De:* "Burr, Becky" <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz>> *Fecha:* 30 de julio de 2015, 4:06:11 PM CDT *Para:* Accountability Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> *Asunto:* *[CCWG-ACCT] Malcom Hutty/ BBurr Consolidated draft on IRP text* And if you do not see redlines in each document, I need a new computer. J. Beckwith Burr *Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz <mailto:becky.burr@neustar.biz> / www.neustar.biz <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.neustar.biz&d=AwMFaQ...> **************************************************************************************************** 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. ****************************************************************************************************
Holly Gregory wrote: [...]
We do have one significant concern however and it relates to the following paragraph which was added in the very last draft:
_20 b. CCWG-Accountability confirms that the IRP Panel has the power to stay a Board decision or action. It further recommends that it also have the power to require ICANN to take a decision or action on an interim basis, until the Board has had a chance to consider and decide how to implement an IRP Panel decision._
We strongly recommend this paragraph be deleted. We believe that it is not only unenforceable but that it is inconsistent with California law and the fiduciary duties of directors (as indicated in prior memos).
The intent of WP2 is that this recommendation be implemented with the following language: 20. The decisions of all three-member IRP Panels (unless appealed) shall be final and binding to the extent permitted by law. That language is contained in our proposed Draft Bylaws Text, that accompanies the text on which you commented and which should be included in the Final Report. It is also consistent with the IRP's own assessment of its powers, as stated in .africa, that it is binding abitration and not merely advisory (paragraphs 98-115) - an assessment that ICANN argued against. It is our view that this makes clear that we do not wish to invite the Board to take a more expansive view of the scope of this exception than they are required to do; instead, any refusual to follow an instruction from the IRP to stay an action must be justified on the basis that to follow it would be unlawful. That establishes a gravity and an objectivity to the assessment of whether to follow the IRP ruling that would otherwise be lacking. I believe this Draft Bylaws language that we propose accomodates our Counsel's advice fully. I could accept further refinement of the language in the main report so as to draw attention to this qualification, so long as we do so in a manner that makes clear that it our intent is that the Board must give the Panel's Decisions the greatest deference that they are permitted to give it by law. I cannot support removing this paragraph entirely and leaving it bare, so that ICANN can again argue that the IRP is a purely advisory process. That would compromise the entire proposal. I hope I do not need remind you that there was overwhelming support for a binding IRP from the first Public Comment. I think I have explained our intent clearly enough: if Counsel have any further objections in the light of this explanation, I would propose that they be asked to draft language themselves that gives effect to out intent in a lawful manner. As I have said before, if the IRP cannot within the laws of California be made an effective means of ensuring the accountability of ICANN according to its own corporate documents, then ICANN cannot be allowed to transition from US federal while remaining in California. The Sole Member was offered *by the same Counsel* as a solution to this quandary; if it is not then our entire proposal is fundamentally flawed. Regards, Malcolm Hutty. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
Thank you Mathieu. Becky, could my earlier suggestion be reflected? In case it cannot be accomodated, it would be helpful to know the reason and please fix the typo ASP --> ASO. I paste it here once again. CURRENT: The Address Supporting Organization has likewise indicated that disputes related to Internet number resources should be out of scope for the IRP. As requested by the ASO, decisions regarding numbering resources would be excluded from standing, unless and until relevant appeal mechanisms have been developed by the ASP, in coordination with other parties. SUGGESTION: The Address Supporting Organization has likewise indicated that disputes related to Internet number resources should be out of scope for the IRP. As requested by the ASO, decisions regarding numbering resources would be excluded from standing. Thanks, Izummi On 2015/07/31 22:41, Mathieu Weill wrote:
Dear Colleagues,
FYI, feedback from our lawyers on the IRP text. Becky is implementaing changes.
-------- Message transf��r�� -------- Sujet : [CCWG-ACCT] Malcom Hutty/ BBurr Consolidated draft on IRP text Date : Fri, 31 Jul 2015 00:04:02 +0000 De : Gregory, Holly <holly.gregory@sidley.com> Pour : Le��n Felipe S��nchez Amb��a <leonfelipe@sanchez.mx>, Thomas Rickert <thomas@rickert.net>, Mathieu Weill <mathieu.weill@afnic.fr>, Becky Burr <Becky.Burr@neustar.biz>, Grace Abuhamad <grace.abuhamad@icann.org>, acct-staff@icann.org <acct-staff@icann.org> Copie �� : Sidley ICANN CCWG <sidleyicannccwg@sidley.com>, ICANN-Adler <ICANN@adlercolvin.com>, Rosemary E. Fei <rfei@adlercolvin.com>
Dear Co-Chairs,
We have reviewed the IRP draft and have relatively few comments. Overall it looks in good shape.
We do have one significant concern however and it relates to the following paragraph which was added in the very last draft:
_20 b. CCWG-Accountability confirms that the IRP Panel has the power to stay a Board decision or action. It further recommends that it also have the power to require ICANN to take a decision or action on an interim basis, until the Board has had a chance to consider and decide how to implement an IRP Panel decision._
We strongly recommend this paragraph be deleted. We believe that it is not only unenforceable but that it is inconsistent with California law and the fiduciary duties of directors (as indicated in prior memos).
We also urge extreme caution in the next several days with these types of last minute additions and language changes.
Holly and Rosemary
*HOLLY**J.**GREGORY* Partner
*Sidley Austin LLP** *+1.212.839.5853 holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>
*From:*Le��n Felipe S��nchez Amb��a [mailto:leonfelipe@sanchez.mx] *Sent:* Thursday, July 30, 2015 6:17 PM *To:* Gregory, Holly; Rosemary E. Fei; Sidley ICANN CCWG; ICANN-Adler; Thomas Rickert; Mathieu Weill; Becky Burr *Subject:* Fwd: [CCWG-ACCT] Malcom Hutty/ BBurr Consolidated draft on IRP text
Dear Holly, dear Rosemary,
Sorry for briefness. Here are redline versions of the IRP document for your review and comments
Saludos,
Le��n
Enviado desde el m��vil. Disculpa brevedad y errores tipogr��ficos.
Inicio del mensaje reenviado:
*De:* "Burr, Becky" <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz>> *Fecha:* 30 de julio de 2015, 4:06:11 PM CDT *Para:* Accountability Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> *Asunto:* *[CCWG-ACCT] Malcom Hutty/ BBurr Consolidated draft on IRP text*
And if you do not see redlines in each document, I need a new computer.
J. Beckwith Burr
*Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz <mailto:becky.burr@neustar.biz> / www.neustar.biz <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.neustar.biz&d=AwMFaQ...>
**************************************************************************************************** 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
You don’t want the “unless and until” language? Provides flexibility, commits you to nothing J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz / www.neustar.biz On 7/31/15, 11:21 AM, "Izumi Okutani" <izumi@nic.ad.jp> wrote:
Thank you Mathieu.
Becky, could my earlier suggestion be reflected? In case it cannot be accomodated, it would be helpful to know the reason and please fix the typo ASP --> ASO.
I paste it here once again.
CURRENT: The Address Supporting Organization has likewise indicated that disputes related to Internet number resources should be out of scope for the IRP. As requested by the ASO, decisions regarding numbering resources would be excluded from standing, unless and until relevant appeal mechanisms have been developed by the ASP, in coordination with other parties.
SUGGESTION: The Address Supporting Organization has likewise indicated that disputes related to Internet number resources should be out of scope for the IRP. As requested by the ASO, decisions regarding numbering resources would be excluded from standing.
Thanks, Izummi
On 2015/07/31 22:41, Mathieu Weill wrote:
Dear Colleagues,
FYI, feedback from our lawyers on the IRP text. Becky is implementaing changes.
-------- Message transf��r�� -------- Sujet : [CCWG-ACCT] Malcom Hutty/ BBurr Consolidated draft on IRP text Date : Fri, 31 Jul 2015 00:04:02 +0000 De : Gregory, Holly <holly.gregory@sidley.com> Pour : Le��n Felipe S��nchez Amb��a <leonfelipe@sanchez.mx>, Thomas Rickert <thomas@rickert.net>, Mathieu Weill <mathieu.weill@afnic.fr>, Becky Burr <Becky.Burr@neustar.biz>, Grace Abuhamad <grace.abuhamad@icann.org>, acct-staff@icann.org <acct-staff@icann.org> Copie �� : Sidley ICANN CCWG <sidleyicannccwg@sidley.com>, ICANN-Adler <ICANN@adlercolvin.com>, Rosemary E. Fei <rfei@adlercolvin.com>
Dear Co-Chairs,
We have reviewed the IRP draft and have relatively few comments. Overall it looks in good shape.
We do have one significant concern however and it relates to the following paragraph which was added in the very last draft:
_20 b. CCWG-Accountability confirms that the IRP Panel has the power to stay a Board decision or action. It further recommends that it also have the power to require ICANN to take a decision or action on an interim basis, until the Board has had a chance to consider and decide how to implement an IRP Panel decision._
We strongly recommend this paragraph be deleted. We believe that it is not only unenforceable but that it is inconsistent with California law and the fiduciary duties of directors (as indicated in prior memos).
We also urge extreme caution in the next several days with these types of last minute additions and language changes.
Holly and Rosemary
*HOLLY**J.**GREGORY* Partner
*Sidley Austin LLP** *+1.212.839.5853 holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>
*From:*Le��n Felipe S��nchez Amb��a [mailto:leonfelipe@sanchez.mx] *Sent:* Thursday, July 30, 2015 6:17 PM *To:* Gregory, Holly; Rosemary E. Fei; Sidley ICANN CCWG; ICANN-Adler; Thomas Rickert; Mathieu Weill; Becky Burr *Subject:* Fwd: [CCWG-ACCT] Malcom Hutty/ BBurr Consolidated draft on IRP text
Dear Holly, dear Rosemary,
Sorry for briefness. Here are redline versions of the IRP document for your review and comments
Saludos,
Le��n
Enviado desde el m��vil. Disculpa brevedad y errores tipogr��ficos.
Inicio del mensaje reenviado:
*De:* "Burr, Becky" <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz>> *Fecha:* 30 de julio de 2015, 4:06:11 PM CDT *Para:* Accountability Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> *Asunto:* *[CCWG-ACCT] Malcom Hutty/ BBurr Consolidated draft on IRP text*
And if you do not see redlines in each document, I need a new computer.
J. Beckwith Burr
*Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz <mailto:becky.burr@neustar.biz> / www.neustar.biz
<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.neustar.biz&d=Aw MFaQ&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y _8&m=hK5aVvE1aDPNC-EThOsl0voZc8UGGJK8OgEiqT9XIWc&s=O2WmDLT-u9z6rz_bIIYKjZ F_pZJv9xnnSBWRzaN7xjs&e=>
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************************************************************************* ***************************
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Thanks for this clarification Becky. Noted and I think we are good without it, but NRO/the wider the numbers community can provide input during the public comment if they believe this sentence is needed, as for the ccTLD delegations. Thanks, Izumi On 2015/08/01 0:26, Burr, Becky wrote:
You don’t want the “unless and until” language? Provides flexibility, commits you to nothing
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz / www.neustar.biz
On 7/31/15, 11:21 AM, "Izumi Okutani" <izumi@nic.ad.jp> wrote:
Thank you Mathieu.
Becky, could my earlier suggestion be reflected? In case it cannot be accomodated, it would be helpful to know the reason and please fix the typo ASP --> ASO.
I paste it here once again.
CURRENT: The Address Supporting Organization has likewise indicated that disputes related to Internet number resources should be out of scope for the IRP. As requested by the ASO, decisions regarding numbering resources would be excluded from standing, unless and until relevant appeal mechanisms have been developed by the ASP, in coordination with other parties.
SUGGESTION: The Address Supporting Organization has likewise indicated that disputes related to Internet number resources should be out of scope for the IRP. As requested by the ASO, decisions regarding numbering resources would be excluded from standing.
Thanks, Izummi
On 2015/07/31 22:41, Mathieu Weill wrote:
Dear Colleagues,
FYI, feedback from our lawyers on the IRP text. Becky is implementaing changes.
-------- Message transf��r�� -------- Sujet : [CCWG-ACCT] Malcom Hutty/ BBurr Consolidated draft on IRP text Date : Fri, 31 Jul 2015 00:04:02 +0000 De : Gregory, Holly <holly.gregory@sidley.com> Pour : Le��n Felipe S��nchez Amb��a <leonfelipe@sanchez.mx>, Thomas Rickert <thomas@rickert.net>, Mathieu Weill <mathieu.weill@afnic.fr>, Becky Burr <Becky.Burr@neustar.biz>, Grace Abuhamad <grace.abuhamad@icann.org>, acct-staff@icann.org <acct-staff@icann.org> Copie �� : Sidley ICANN CCWG <sidleyicannccwg@sidley.com>, ICANN-Adler <ICANN@adlercolvin.com>, Rosemary E. Fei <rfei@adlercolvin.com>
Dear Co-Chairs,
We have reviewed the IRP draft and have relatively few comments. Overall it looks in good shape.
We do have one significant concern however and it relates to the following paragraph which was added in the very last draft:
_20 b. CCWG-Accountability confirms that the IRP Panel has the power to stay a Board decision or action. It further recommends that it also have the power to require ICANN to take a decision or action on an interim basis, until the Board has had a chance to consider and decide how to implement an IRP Panel decision._
We strongly recommend this paragraph be deleted. We believe that it is not only unenforceable but that it is inconsistent with California law and the fiduciary duties of directors (as indicated in prior memos).
We also urge extreme caution in the next several days with these types of last minute additions and language changes.
Holly and Rosemary
*HOLLY**J.**GREGORY* Partner
*Sidley Austin LLP** *+1.212.839.5853 holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>
*From:*Le��n Felipe S��nchez Amb��a [mailto:leonfelipe@sanchez.mx] *Sent:* Thursday, July 30, 2015 6:17 PM *To:* Gregory, Holly; Rosemary E. Fei; Sidley ICANN CCWG; ICANN-Adler; Thomas Rickert; Mathieu Weill; Becky Burr *Subject:* Fwd: [CCWG-ACCT] Malcom Hutty/ BBurr Consolidated draft on IRP text
Dear Holly, dear Rosemary,
Sorry for briefness. Here are redline versions of the IRP document for your review and comments
Saludos,
Le��n
Enviado desde el m��vil. Disculpa brevedad y errores tipogr��ficos.
Inicio del mensaje reenviado:
*De:* "Burr, Becky" <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz>> *Fecha:* 30 de julio de 2015, 4:06:11 PM CDT *Para:* Accountability Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> *Asunto:* *[CCWG-ACCT] Malcom Hutty/ BBurr Consolidated draft on IRP text*
And if you do not see redlines in each document, I need a new computer.
J. Beckwith Burr
*Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz <mailto:becky.burr@neustar.biz> / www.neustar.biz
<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.neustar.biz&d=Aw MFaQ&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y _8&m=hK5aVvE1aDPNC-EThOsl0voZc8UGGJK8OgEiqT9XIWc&s=O2WmDLT-u9z6rz_bIIYKjZ F_pZJv9xnnSBWRzaN7xjs&e=>
************************************************************************* *************************** 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
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participants (4)
-
Burr, Becky -
Izumi Okutani -
Malcolm Hutty -
Mathieu Weill