An MoU while not a contract does establish a working relationship... and is entirely reasonable. 

What bureaucracy or paper need it create?  We've emphasized online content.   Bits are recyclable.  :)

To my understanding, the RALO system is just a framework - and to the extent we create community in the RALO towards the purpose/mission we will be successful on our end. 

But, I think that differentiating this from a contract was a conscious policy choice so that ICANN might avoid 1) legal risk or 2) granting power/rights to RALOs... which is why some question the value of the process.

Now, creating risks without resources for the RALO doesnt make sense to me.  So, from RALO side, we'd want to balance that in any contract.

In so far as this is being termed an MoU, as my comment above indicates, the RALO is more about what each region makes of it as a mechanism for (coordinating) public education and a channel for feedback from the public.  And, as I have asserted elsewhere, increased communication and coordination among many entities (ALSs) in a region would be a good thing, especially if these entities have a common issue:  the Internet for the People.

Coming together around a concept like that, if the RALO is what we make of it, the RALO can be more than its MoU with ICANN... those entities may address the context in which ICANN operates as well.  Some think this is naive, but I think it serves the best interests of the public at large, and I want us to consider the NA RALO from this perspective.

-MM

-Michael








On 3/23/07, Wendy Seltzer <wendy@seltzer.com> wrote:
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

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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.icann.org
> ---
> 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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