more questions on consensus policy and contracts
Hi, During last night's meeting I was trying to understand the relation between PDP consensus policy and contractual arrangements. I realize that this is a less then favored subject, and I apologize for holding up the progress of the meeting with my question last night and apologize if this message causes further distress. I want to see if what I understand, I understand correctly, and I want to clear up areas where I am still confused. And while I did hear Bruce's explanation, the quality of the line made it difficult to follow completely, and I did not want to interfere with the meeting further by asking the questions at that time. In my looking at it, I see at least two different questions: - what can the council propose consensus policy on - the relation between consensus policy and contracts, of which there are three types: - existing - renewing - new - what the council can propose consensus policy on: If I understand correctly, the GNSO council can propose policy, assuming it follows the procedures, on just about anything related to gTLDs that can be shown to be relevant under the Bylaws of 8apr05 Article 1. And the Board is empowered to approve policy, once presented by the GNSO council after all appropriate procedures, on anything interpreted as coming under the Mission as understood in the context of the Values. This include the principles of public accountability, fairness, competitiveness, and transparency etc as well as 'preserving and enhancing the operational stability, reliability, security, and global interoperability of the Internet.' And if I understand correctly, the subjective qualities of 'feasible and appropriate' are put in several of the clauses to give the board, the council and the community flexibility in interpreting article 1 - though I am curious as to how these are determined given the relative nature of such appraisals - is the board the jury that must apply the 'reasonable man' criteria. - to what degree is consensus policy applicable to existing contracts and to what degree are existing contracts applicable to the creation of consensus policy? If I understand correctly, the nature or content of current contracts or the clauses in those contracts relating to consensus policy have _no_ effect on which policies can be created and approved, but only affect the degree to which new consensus policies can be applied during the term of that contract. And, as these exclusions from consensus policy clauses are somewhat different in every contract, no general statement can be made about which consensus policies are applicable to the full set of current contracts. - 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? - 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.
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.
participants (2)
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Avri Doria
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Mawaki Chango