Naturally, I disagree. RALOs should want a way to hold ICANN accountable, since ICANN seems to be steadily shirking that responsibility to the public elsewhere. Of course ICANN's legal counsel would not attempt to offer legal advice to the RALOs, whose interests might be adverse to his client. The statement that "It would probably not be prudent for either ICANN or the RALOs to structure these relationships in a way that would expose ICANN or the RALOs to potential liability and increased risk of litigation from non-parties to these agreements." can only be a suggestion to the RALOs. With litigation often the only thing ICANN listens to, my recommendation (also not legal advice) is that it would be foolish for the RALO not to press for such accountability. At the very least, we should make ICANN explain why it fears giving the public the ability to hold it to its contractual commitments. --Wendy At 02:42 PM 4/14/2007, At-Large Staff wrote:

Dear North American ALS colleagues:

Please find below the clarification promised on the status of MoUs with ICANN, and the view of the GC on the proposal by Wendy Seltzer on enforceability of the MoUs.

---------- Forwarded message ---------- From: Daniel Halloran <daniel.halloran@icann.org> Date: 12-Apr-2007 23:28 Subject: Legal Status of ICANN RALO MOUs To: Nick Ashton-Hart <nick.ashton-hart@icann.org> Cc: Sue Jonklaas <sue.jonklaas@icann.org>

Nick,

You asked about the legal status of the MOUs that ICANN enters with its regional at-large organizations. Pursuant to ICANN Bylaws Article XI, Section 2.4g <http://www.icann.org/general/ bylaws.htm#XI-2.4g>, ICANN's RALO MOUs are intended to address the "the respective roles and responsibilities of ICANN and the RALO regarding the process for selecting ALAC members and requirements of openness, participatory opportunities, transparency, accountability, and diversity in the RALO's structure and procedures, as well as criteria and standards for the RALO's constituent At-Large Structures."

The RALO MOUs were not intended to be "enforced" in courts of law -- they do not include jurisdiction or dispute resolution language. They are intended only to document the structure and processes of these advice formulation and coordination organizations. It would probably not be prudent for either ICANN or the RALOs to structure these relationships in a way that would expose ICANN or the RALOs to potential liability and increased risk of litigation from non-parties to these agreements.

I hope this information is helpful. Please let me know if I can be of any further assistance.

Best regards, Dan Halloran

-- -- Regards,

Nick Ashton-Hart PO Box 32160 London N4 2XY United Kingdom UK Tel: +44 (20) 8800-1011 USA Tel: +1 (202) 657-5460 Fax: +44 (20) 7681-3135 mobile: +44 (7774) 932798 Win IM: ashtonhart@hotmail.com / AIM/iSight: nashtonhart@mac.com / Skype: nashtonhart Online Bio: https://www.linkedin.com/in/ashtonhart

_______________________________________________ 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

-- Wendy Seltzer -- wendy@seltzer.org Visiting Assistant Professor of Law, Brooklyn Law School Fellow, Berkman Center for Internet & Society http://cyber.law.harvard.edu/seltzer.html http://www.chillingeffects.org/