Hi, those are very useful questions Avri, and during the meeting, I made a point that is related to at least one of them, but couldn't express it clearer than you do here (commenting below)... --- Avri Doria <avri@acm.org> wrote:
- to what degree do consensus policies affect contracts in the process of renewal?
On this I am still confused. (at least I know I am confused here, obviously if I am wrong about what I wrote above, then I am also confused about that) When a new contract is being negotiated what is the relationship between existing consensus policy, esp. policy that was created between the time the contract was originally negotiated
and the time of renewal, and the renewal. Does policy created during the term of the expiring contract have effect on the contract being
renewed or on the clauses in that contract relating to exemptions from consensus policy?
These are not obvious issues, and I guess their understanding might depend as well on differences related to legal (sub-)cultures... During the meeting discussions, I was also surprised to hear (not that the policy developed is not retroactive, which is normal, but) that there might be, and there probably are, clauses of renewal that could be detailed enough so that the renewal of existing contracts simply remains out of the scope of a policy framework that is developed during their initial or current term. I would have naturally thought that a renewal would be governed by existing policy at the time of renewal. Apparently, this is not so (of course I understand that under a new policy, a renewed contract might become different enough from the initial one so that some may consider it just another contract, not a renewal, though I would have expected that the "presumptive rights of renewal" do not mean renewal of *the same* but rather the renewal of the right to be in charge of the gTLD management). Then the question for me (and supposedly for you Avri as well, if I have well captured your concern here) remains: to what extent goes a renewal clause in the kind of contracts we are talking about: exactly same conditions, or renegotion of a fair number of conditions; next iteration or all future iterations? In the latter, are existing contracts going to be governed by their "auto-replicable" clauses, so to speak, so that they would never be concerned by a relevant (to their field of competence) policy framework that is adopted by the Board and in force? If so, under what circumstances if any, could this situation be inverted (a future iteration of an existing contract be governed by a policy that has been put in place after initial negotiation, and of course before the time of that iteration)? Would you say that will request a *re-nogotiation*, or it is just not possible without going to court? I'm just trying to understand the legal rationale here, not trying to bring a burden on anyone's contract ;) To those who participated in the meeting this weekend, I hope you had or will have a safe trip back home; it was really nice seeing your faces at my GNSO baptism (and Sophia's, too, of course:)), and thanks a million to Marylin for hosting it, to a much alert and patient MC or "pastor" if you will, Bruce, for leading it, and of course to the ever dedicated staff for making it happen so smoothly. My kind respects to all, Mawaki
- to what degree are negotiations on new contracts bound by consensus policy?
I am also confused on this. Does consensus policy determine the nature and content of new contracts negotiated by ICANN staff. Can
the negotiators put in clauses exempting the signatories from existing consensus policy as awell as future consensus policy? Can
consensus policy that is in effect at the time of negotiation, have
an effect on the clauses in the contract that relate to the effect of future consensus policy on the contract conditions? I.e Could there be a consensus policy that said future contracts could not exempt the signatories from a particular consensus policy?
I hope my questions do not disturb the debate on the TOR itself or on the important work to come up with recommendations about the creation of new gTLDs. It is just that the contribution by the registry constituency got me thinking about the full extent of the influence, and relevance, of consensus policy. I also apologize for not managing to understand the full issue from what I have read and from what was explained during last night's meeting.
thanks a.