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Document for discussion (Re: WG meeting this Wednesday)
by Mary Wong Aug. 4, 2015

Aug. 4, 2015

Dear WG members, Please find attached the latest version of the draft letter and questions for the external legal expert that this WG is planning on consulting. This revised version contains a few edits suggested by the co-chairs and staff, working off the last document edited by Jim Bikoff that also incorporated suggestions from George Kirikos and Paul Keating. We will send around the short list of available experts and their qualifications soon for the WG¹s review and further discussion. Thanks and cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names & Numbers (ICANN) Telephone: +1 603 574 4889 Email: mary.wong(a)icann.org From: Mary Wong <mary.wong(a)icann.org> Date: Monday, August 3, 2015 at 15:55 To: <gnso-igo-ingo-crp(a)icann.org> Subject: WG meeting this Wednesday > Dear WG members, > > With apologies for the short notice, the WG co-chairs would like to convene a > WG meeting this Wednesday, 5 August, at the usual time (1600 UTC). Since > Petter and Phil will not be available for the next three weeks, the thinking > is that this will be a good opportunity to take stock and to finalize the WG > discussion on engaging an external international law expert. > > The proposed agenda is as follows: > 1. Roll call/updates to SOI > 2. Finalize draft letter and questions for external legal expert (draft to > follow) > 3. Review shortlist of external expert candidates (list to follow) > 4. Status update on Board, GAC and IGO interactions > 5. Next steps/next meeting > We will send out the relevant documents as soon as we possibly can thank you > for your understanding. > > Thanks and cheers, > Mary > > Mary Wong > Senior Policy Director > Internet Corporation for Assigned Names & Numbers (ICANN) > Telephone: +1 603 574 4889 > Email: mary.wong(a)icann.org > > >

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WG meeting this Wednesday
by Mary Wong Aug. 3, 2015

Aug. 3, 2015

Dear WG members, With apologies for the short notice, the WG co-chairs would like to convene a WG meeting this Wednesday, 5 August, at the usual time (1600 UTC). Since Petter and Phil will not be available for the next three weeks, the thinking is that this will be a good opportunity to take stock and to finalize the WG discussion on engaging an external international law expert. The proposed agenda is as follows: 1. Roll call/updates to SOI 2. Finalize draft letter and questions for external legal expert (draft to follow) 3. Review shortlist of external expert candidates (list to follow) 4. Status update on Board, GAC and IGO interactions 5. Next steps/next meeting We will send out the relevant documents as soon as we possibly can thank you for your understanding. Thanks and cheers, Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names & Numbers (ICANN) Telephone: +1 603 574 4889 Email: mary.wong(a)icann.org

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Professor Michael Geist, U. Ottawa
by Paul Tattersfield July 30, 2015

July 30, 2015

Dear Phil, Petter and all, I mentioned our WG was seeking a Legal Expert to Professor Michael Geist a couple of days ago, he indicated he would be happy to learn more and be considered if ICANN thought it was a good fit. http://www.michaelgeist.ca/about/ <http://www.michaelgeist.ca/about/> Could we add him to the list of possible experts? Yours sincerely, Paul.

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Rescheduling WG call this week (message from Petter and Phil)
by Mary Wong July 23, 2015

July 23, 2015

[Sending the email below on behalf of Petter Rindforth and Philip Corwin, WG co-chairs] Dear WG members, Please be informed that after consultation with ICANN staff we have decided to reschedule our Working Group meeting, originally planned for this Wednesday 22 July, to end-July or early August. We are informed that the ³small group² meeting between representatives of the IGO coalition and ICANN Board members was a positive one, and that an updated proposal is likely to be forwarded to the GAC and the GNSO for their review and action by September. This is in line with the GAC¹s Buenos Aires Communique and the objectives of the ³small group² process when it was formed to discuss the initial March 2014 proposal from the Board¹s New gTLD Program Committee (NGPC). The IGO coalition and Board are discussing issues that extend beyond but are related to our work. With the aim to facilitate further progress of the policy development process, and to take into account the context of our work, which includes the need to resolve the outstanding inconsistencies between the GNSO¹s initial policy recommendations on so-called ³preventative² protections and GAC advice received on the topic, we plan to hold a call very soon, along with Jonathan Robinson as GNSO Chair, Thomas Rickert as chair of the original GNSO PDP on IGO protections, and Mason as the GAC-GNSO liaison, with Chris Disspain (Board/NGPC member) and Thomas Schneider (GAC Chair) within the coming week. The aim of the call is for us to receive a first-hand update on the work of the ³small group² and discuss the likely progress within the GNSO, GAC and Board on the overall topic of IGO protections, as well as how this WG relates to the larger picture. As such, we believe that it would be most effective and productive if we were to have our next WG meeting following this call. We will provide more details and a tentative time for the next WG call as soon as possible. Best regards, Petter and Phil

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GAC advice and the IGO PDP
by George Kirikos July 22, 2015

July 22, 2015

Hi folks, I hope everyone is enjoying the start of the weekend. Late last night, ICANN released a decision in the Independent Review of the .africa matter. See: https://www.icann.org/news/announcement-2-2015-07-10-en https://www.icann.org/en/system/files/files/final-declaration-09jul15-en.pdf http://domainincite.com/18944-new-gtld-program-thrown-into-chaos-as-icann-l… Parts of the decision are redacted, which raises questions of its own regarding ICANN transparency. However, the panel had much to say about GAC advice. 1. It ruled that GAC is a constituent body of ICANN (paragraph 101, page 43). 2. ICANN's own witness, Heather Dryden (former GAC chair), according to the panel, testified that the "GAC did not act with transparency or in a manner designed to insure fairness" (paragraph 102, pages 43-44). Rather, Ms. Dryden testified that "we talk about creative ambiguity. We leave things unclear so we don't have conflict" (paragraph 102, page 44) 3. Most damningly, the panel said in paragraph 104 (pages 44-45) that "Ms. Dryden also stated that the GAC made its decision without providing any rationale and primarily based on politics and not on potential violations of national laws and sensitivities." This appears to be quite similar to the "advice" that the GAC has provided to ICANN and to this very PDP (via its "answers") 4. In paragraph 110 (pages 46-47), Ms. Dryden admitted that the GAC isn't using sound and reasoned technical or legal analysis to come up with its advice, but is instead influenced by politics "And that's the nature of -- of the political process." (with much redacted after that answer) 5. Ms. Dryden also testified (still in paragraph 110, page 52) that GAC advice is issued with no rationale: "THE WITNESS: Problematic, violate national law -- there are a lot of laws -- and sensitivities does strike me as being quite broad. [...] ARBITRATOR KESSEDJIAN: Okay. So we are left with what? No rules? THE WITNESS: No rationale with the consensus objections. That's the -- the effect." 6. This was not consistent with ICANN's bylaws, e.g. paragraph 113 (page 53), "In light of the clear “Transparency” obligation provisions found in ICANN’s Bylaws, the Panel would have expected the ICANN Board to, at a minimum, investigate the matter further before rejecting DCA Trust’s application." How does the IRP decision affect this PDP? I believe no deference should be given to any of the answers or positions provided by the GAC, unless accompanied by clear and convincing facts and rationale, along with evidence that there's been substantive deliberations to arrive at a position. The GAC has not been transparent with how it reaches its positions, nor has it elaborated on its reasoning to assist this PDP. In particular, its 2 page letter of April 29, 2015 does not come close to the standard that is demanded by ICANN bylaws, and thus should be given no deference. In my opinion, the IGOs have (to date) hesitated to participate in this PDP, perhaps in the misguided belief that they could rely instead on their ability to influence the GAC behind closed doors. This IRP decision should be considered a harsh rebuke to that approach. If the IGOs really want to affect the outcome of this PDP, they should actively engage with us by providing facts and analysis, rather than using a "political" approach. In conclusion, this PDP should not be influenced by politics (points #3 and #4 above), but should instead be built on a foundation of a careful analysis of facts and laws. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

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Re: [Gnso-igo-ingo-crp] Letter on IGO protections
by Mary Wong July 22, 2015

July 22, 2015

Dear all, Regarding the appointment of an external legal expert - staff has been working to identify a number of qualified legal experts who may be available to provide this WG with the advice it seeks. During the past few weeks, we have contacted the ones who have through various sources been recommended to us, including by members of this WG, and updated the draft questions in line with the last WG email thread on the topic. Our plan is to develop a short list of interested experts who may be able to provide you with the input sought, following initial conversations with the ones we have tried to contact. Regarding the work of the ³small group² - as mentioned previously, the ³small group² was formed to serve as the primary forum for Board-GAC discussions on the issue of IGO protections. This took place during the ongoing NGPC-GAC discussions over the NGPC¹s March 2014 proposal. The NGPC proposal had been expressly requested by the Board, in a Board resolution in February 2014 that had also acknowledged the GNSO¹s policy recommendations from the initial (2012-13) PDP and asked for more time to consider them. Although the Board subsequently adopted some of the GNSO¹s policy recommendations in April 2014, these did not include those that were inconsistent with GAC advice on the topic of IGO protections. The ³small group² has therefore been working to further refine the NGPC proposal in order for the GAC and the GNSO to be in a position to resolve those inconsistencies. The GNSO has been aware of the NGPC proposal, the ongoing discussions, and the existence of the ³small group² for some time (see, e.g., the discussions between the GNSO Council and Chris Disspain, and the correspondence between the GNSO Chair and the NGPC, between mid- to late 2014). Do note that the letter specifically mentions that the updated proposal will be sent to the GNSO. There is also to be a meeting between the relevant GNSO representatives (including our WG co-chairs), the GAC Chair and Chris Disspain from the NGPC on this matter. Further, previous GAC Commmuniques and communications from the NGPC had expressly acknowledged the scope of work of this PDP WG, which is of course relevant to the outcome of the overall discussion on IGO protections. I believe I¹ve previously sent around links to the relevant Board resolutions, GAC Communiques and GNSO Council discussions on this topic so I am not including them in this note, but do let me know if anyone would like me to resend them. Cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names & Numbers (ICANN) Telephone: +1 603 574 4889 Email: mary.wong(a)icann.org -----Original Message----- From: <gnso-igo-ingo-crp-bounces(a)icann.org> on behalf of Paul Keating <paul(a)law.es> Date: Wednesday, July 22, 2015 at 15:09 To: George Kirikos <icann(a)leap.com> Cc: "gnso-igo-ingo-crp(a)icann.org" <gnso-igo-ingo-crp(a)icann.org> Subject: Re: [Gnso-igo-ingo-crp] Letter on IGO protections >Mary, Phil and Petter. > >It seems to me test there are now a number of "groups" acting under the >assumption that they have been tasked with the authority to determine >this issue and to provide "solutions". I am not clear if this letter is >from the same or from a different group than the "small group" (whatever >that is in reality). > >Can you please let us know whether this letter is written by a group >acting under the ambit of authority? > >Finally I am growing quite perturbed by the apparent lack of legal >support for the WG. We have, following advice from >Staff, provided a narrow request for funds to obtain a qualified legal >opinion. However, I have not seen any apparent progress on a request for >funding or any authorization to retain counsel on this important issue. > >We are approaching a point where conspiratorially minded persons might >think the failure to authorize competent legal advisors is an effort to >eliminate the legal basis for what is seemingly forming as a consensus in >favor of a political approach which is not founded upon legal principals. > I for one surely hope this is not the case. > >I therefore reiterated my requests that : > >1. The authorization be obtained for a competent qualified legal advisor >to assist the WG regarding immunity issues ( a copy >Of the actual funding request must be circulated to the WG): and, > >2. Disclosure of the members of the now multiple groups apparently >"working" on the same task assigned to this WG - namely the "small >working group" and this who worked in the preparation of the letter >referenced below. > >Sincerely, >Paul Keating, Esq. > >> On Jul 22, 2015, at 8:54 PM, George Kirikos <icann(a)leap.com> wrote: >> >> Why would this letter have any meaning whatsoever? This PDP is >> supposed to be based on data, research, law, etc. The IGOs appear to >> be planning to just put out a position statement or proposal, without >> any data, research, law, etc., as just a means of circumventing the >> formal process (this very PDP) that ICANN has put in place to make >> sure that all stakeholders are represented. >> >> They even made the questionable statement that this issue is "becoming >> increasingly critical as time goes by" -- where's the data/evidence to >> substantiate that assertion? IGOs have been treated just like >> everybody else for the past 30 years, and the UDRP has existed for >> more than 15 years, and the world hasn't come to an end. >> >> Sincerely, >> >> George Kirikos >> 416-588-0269 >> http://www.leap.com/ >> >> >> >>> On Wed, Jul 22, 2015 at 2:16 PM, Mary Wong <mary.wong(a)icann.org> wrote: >>> Dear WG members, >>> >>> We would like to draw your attention to the following letter that was >>>just >>> sent by the OECD Secretary-General to ICANN¹s CEO Fadi Chehade: >>> >>>https://www.icann.org/en/system/files/correspondence/gurria-to-chehade-2 >>>0jul15-en.pdf. >>> You will see that the letter references the recent Paris meeting that >>>Phil >>> and Petter are expecting to follow up on with the NGPC, GAC Chair and >>>other >>> GNSO representatives. In light of the GAC¹s recent Buenos Aires >>>Communique >>> that noted Dublin as a key milestone for resolving the overall issue >>>of IGO >>> protections, we thought you might find this letter of interest. >>> >>> Cheers >>> Mary >>> >>> Mary Wong >>> Senior Policy Director >>> Internet Corporation for Assigned Names & Numbers (ICANN) >>> Telephone: +1 603 574 4889 >>> Email: mary.wong(a)icann.org >>> >>> >>> >>> >>> _______________________________________________ >>> Gnso-igo-ingo-crp mailing list >>> Gnso-igo-ingo-crp(a)icann.org >>> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp >> _______________________________________________ >> Gnso-igo-ingo-crp mailing list >> Gnso-igo-ingo-crp(a)icann.org >> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp >_______________________________________________ >Gnso-igo-ingo-crp mailing list >Gnso-igo-ingo-crp(a)icann.org >https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp

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Letter on IGO protections
by Mary Wong July 22, 2015

July 22, 2015

Dear WG members, We would like to draw your attention to the following letter that was just sent by the OECD Secretary-General to ICANN¹s CEO Fadi Chehade: https://www.icann.org/en/system/files/correspondence/gurria-to-chehade-20jul 15-en.pdf. You will see that the letter references the recent Paris meeting that Phil and Petter are expecting to follow up on with the NGPC, GAC Chair and other GNSO representatives. In light of the GAC¹s recent Buenos Aires Communique that noted Dublin as a key milestone for resolving the overall issue of IGO protections, we thought you might find this letter of interest. Cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names & Numbers (ICANN) Telephone: +1 603 574 4889 Email: mary.wong(a)icann.org

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Next WG conference call?
by George Kirikos July 7, 2015

July 7, 2015

Are we having a call next week (i.e. July 1, 2015)? Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

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Agenda for WG meeting during ICANN53 this week
by Mary Wong June 24, 2015

June 24, 2015

Dear all, Due to the WG¹s meeting occurring during ICANN53 in Buenos Aires, Petter and Phil would like to conduct the session as an open meeting involving the community. As such, the proposed agenda for the meeting on Wednesday 24 June, from 10.00-11.30 a.m. Argentina time (ART) (1300-1430 UTC) is: 1. Roll call/updates to SOI 2. Status report to community on WG preliminary recommendation regarding standing to file a curative rights complaint, with Q&A 3. Status report to community on WG progress on IGO immunity issue, with Q&A 4. Open discussion 5. Next steps Details about the meeting location and remote participation can be found here: http://buenosaires53.icann.org/en/schedule/wed-igo-ingo-crp-access Thanks and cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names & Numbers (ICANN) Telephone: +1 603 574 4889 Email: mary.wong(a)icann.org

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FW: Int'l Orgs Expert
by Bikoff, James June 20, 2015

June 20, 2015

Phil, Petter and all, Attached are bios on two possible experts on sovereign immunity. Mr. Bellinger, in particular, seems extremely qualified on the subject. I would be happy to talk to him initially since the lead came from a mutual colleague. Let me know. I regrettably will not be in BA but have a productive meeting and some good Argentine beef and wine. Jim James L. Bikoff<http://www.sgrlaw.com/attorneys/profiles/bikoff-james/> | Attorney at Law 202-263-4341 phone 202-263-4329 fax www.sgrlaw.com<http://www.sgrlaw.com> jbikoff(a)sgrlaw.com<mailto:jbikoff@sgrlaw.com> 1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007 [cid:imageb4de1d.JPG@e4604407.45ae17fa]<http://www.sgrlaw.com> Smith, Gambrell & Russell, LLP ________________________________ Confidentiality Notice This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message.

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