Re: [At-Large] [NA-Discuss] Suggestion: Name the public as intended beneficiary of RALO MOUs
Pardon me, but if it's not a binding agreement, namely a contract, what's the point to anyone signing it? To create pretty ceremony? Each of the parties to the agreement assumes obligations to the other. In addition, since those obligations are for the express benefit of individual Internet users, they're enforceable by those users. Otherwise, we're just creating more paper for thre landfills and more bureaucracy to prevent the individual's voice from being heard. --Wendy -- sent from the TreoPod -- Wendy Seltzer wendy@seltzer.com cell: 914.374.0613 Brooklyn Law & Berkman Center -----Original Message----- From: "Nick Ashton-Hart" <nick.ashton-hart@icann.org> Subj: Re: [NA-Discuss] Suggestion: Name the public as intended beneficiary of RALO MOUs Date: Fri Mar 23, 2007 11:33 am Size: 2K To: "Wendy Seltzer" <wendy@seltzer.com> cc: "Michael Maranda" <mmaranda@afcn.org>, na-discuss@atlarge-lists.icann.org To clarify, as I have been given to understand the MoUs between ICANN and the regions is not a contract as that term is understood in law. It is an agreement, but not of legal standing such as a contract. I am seeking clarification from the GCs office with respect to the other points raised and suggested. What lawsuit do you envisage precisely when below you suggest that the only obligation of a RALO is to disseminate information? And why would the individual ALSes wish to sign an MoU that allows any in the general public to sue them - since they are the other party to ICANN in the MoU and since it has been said in this chain that one could sue either the RALO or ICANN. Perhaps I'm missing something? On 23/03/07, Wendy Seltzer <wendy@seltzer.com> wrote:
Also: What will "expressly enforceable" look like?
It wouldn't do anything directly, but it would mean that anyone could bring a lawsuit if ICANN or the RALO breached its contractual obligations. To that end, we should put into the MOU more of the things we've been insisting ICANN do for the at-large public.
:What "contractual obligations" will the RALO have? (Is the MOU a contract?)
The world of ICANN is built around contracts rather than public law. In that environment, the only way to get anything done is to have an enforceable contract right (or to get your views endorsed by someone who does or by a sufficiently influential government). The MOU is our chance to establish contractual rights for the individual Internet user against ICANN. If we don't do that, the RALO will be as useless as every other mode of so-called public participation.
: What resources will the RALO have to meet those obligations, and where will those resources come from? Will they be sufficient to meeting those obligations?
The RALO's obligations are to disseminate information. I was merely mentioning them for completeness.
--Wendy
_______________________________________________ NA-Discuss mailing list NA-Discuss@atlarge-lists.icann.org http://atlarge-lists.icann.org/mailman/listinfo/na-discuss_atlarge-lists.ica... --- Draft MoU with ICANN: http://www.icannwiki.org/NA_RALO_MOU
Draft Operating Principles: http://www.icannwiki.org/NA_RALO_OP
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Wendy Seltzer ha scritto:
Pardon me, but if it's not a binding agreement, namely a contract, what's the point to anyone signing it? To create pretty ceremony?
Each of the parties to the agreement assumes obligations to the other. In addition, since those obligations are for the express benefit of individual Internet users, they're enforceable by those users. Otherwise, we're just creating more paper for thre landfills and more bureaucracy to prevent the individual's voice from being heard.
I must say that this concept of a private contract between A and B which can be used by a third party C for sueing A is something a bit out of my understanding, I think there's nothing like that in Italy... if it's a norm that affects the public then it has to be a law or public regulation, and if it is a private contract then it's only a matter between the signatories to the contract. We've always conceived the MoU as a technical agreement to regulate the representation of ALSes inside ICANN, but not as a commitment of ICANN towards the registrant community, which should come through other means. Anyway, you (the ALSes from NA) should draft the NA MoU in any way that suits your local legal culture. OTOH, in the absence of incorporation of the RALO, I think that the MoU would be a binding legal agreement for the ALSes who sign it, and for ICANN. -- vb. Vittorio Bertola - vb [a] bertola.eu <-------- --------> finally with a new website at http://bertola.eu/ <--------
On 3/23/07 11:48 AM, "Vittorio Bertola" <vb@bertola.eu> wrote:
I must say that this concept of a private contract between A and B which can be used by a third party C for sueing A is something a bit out of my understanding, I think there's nothing like that in Italy...
Just as background, in the U.S., people who are intended to benefit from a contract to which they are not parties are allowed to sue, as "third-party beneficiaries," when their interests are affected adversely. For example, let's say I give you $100,000 and I ask you to invest it for the benefit of my children, and you agree to pay it out to them when they reach the age of 21, minus your administrative fees. You take the money and spend it on a single hand of blackjack in Monaco, and you lose all the money. My children can sue you, even though they didn't have an agreement with you. I wouldn't be surprised if you have some similar laws in Italy (and elsewhere). In the U.S., this right of intended beneficiaries to sue is typically implied into every contract. Bret
In Italy we would solve the matter in a different way, with a different type of contract, but I am not sure that this would be considered a proper way in some other parts of the world.... ;>)
-----Original Message----- From: alac-bounces@atlarge-lists.icann.org [mailto:alac-bounces@atlarge-lists.icann.org] On Behalf Of Bret Fausett Sent: 23 March 2007 20:55 To: Vittorio Bertola; Wendy Seltzer Cc: ALAC; Michael Maranda; na-discuss@atlarge-lists.icann.org Subject: Re: [At-Large] [NA-Discuss] Suggestion: Name the public as intended beneficiary of RALO MOUs
On 3/23/07 11:48 AM, "Vittorio Bertola" <vb@bertola.eu> wrote:
I must say that this concept of a private contract between A and B which can be used by a third party C for sueing A is something a bit out of my understanding, I think there's nothing like that in Italy...
Just as background, in the U.S., people who are intended to benefit from a contract to which they are not parties are allowed to sue, as "third-party beneficiaries," when their interests are affected adversely.
For example, let's say I give you $100,000 and I ask you to invest it for the benefit of my children, and you agree to pay it out to them when they reach the age of 21, minus your administrative fees. You take the money and spend it on a single hand of blackjack in Monaco, and you lose all the money. My children can sue you, even though they didn't have an agreement with you. I wouldn't be surprised if you have some similar laws in Italy (and elsewhere).
In the U.S., this right of intended beneficiaries to sue is typically implied into every contract.
Bret
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participants (4)
-
Bret Fausett -
Roberto Gaetano -
Vittorio Bertola -
Wendy Seltzer