Thanks, Susan.
Section 4.3(f) in full is as follows (bolded is what was shared yesterday) and it is the same language shared on 25 April.
- ICANN may, upon notice to Registry Operator, terminate this Agreement if (i)
Registry Operator knowingly employs any officer who is convicted of a misdemeanor related to financial activities or of any felony, or is judged by a court of competent jurisdiction to have committed fraud or breach of fiduciary duty, or is the subject of
a judicial determination that ICANN reasonably deems as the substantive equivalent of any of the foregoing and such officer is not terminated within thirty (30) calendar days of Registry Operator’s knowledge of the foregoing, (ii) any member of Registry Operator’s
board of directors or similar governing body is convicted of a misdemeanor related to financial activities or of any felony, or is determined by a court of competent jurisdiction or by an arbitrator to have committed fraud or breach of fiduciary duty, or is
the subject of a judicial or arbitral determination that ICANN reasonably deems as the substantive equivalent of any of the foregoing and such member is not removed from Registry Operator’s board of directors or similar governing body within thirty (30) calendar
days of Registry Operator’s knowledge of the foregoing, or (iii) the Registry Operator is determined by a court of competent jurisdiction or by an arbitrator to have committed fraud or deceptive practices in the provision of Registry Services under this
Agreement for the TLD, or is the subject of a judicial or arbitral determination that ICANN reasonably deems as the substantive equivalent.
Best,
Jamie
From:
Susan Payne <susan.payne@comlaude.com>
Date: Wednesday, 14 May 2025 at 11:30
To: Lars Hoffmann <lars.hoffmann@icann.org>, Jamie Hedlund <jamie.hedlund@icann.org>
Cc: Karla Hakansson <karla.hakansson@icann.org>, Anne ICANN <anneicanngnso@gmail.com>, Jared Erwin via SubPro-IRT <subpro-irt@icann.org>
Subject: [Ext] RE: Recommendation 36.4 re: Fraudulent and Deceptive Practices
Thanks Lars (and Jamie)
In order that the IRT can properly review this, please would you provide the whole of what is now proposed as section 4.3(f). The language for (iii) needs to be seen
in context with the rest of the clause. Based on the text Karla shared in her note as the then latest proposal on 4.3(f) (reproduced below) I’m struggling to see how (iii) is supposed to fit:
ICANN may, upon notice to Registry Operator, terminate this Agreement if (i) ICANN receives a complaint, or
ICANN otherwise becomes aware, that Registry Operator is engaging in fraudulent or deceptive business practices in provision of Registry Services under this Agreement for the TLD; and (ii) such fraudulent or deceptive business practices have resulted in an
adverse action or decision and a failure to remediate finding against the Registry Operator by a relevant governmental consumer protection authority or authorities with jurisdiction over the matter, or Registry Operator is the subject of a determination that
ICANN reasonably deems as the substantive equivalent of any of the foregoing; provided that, if ICANN receives a complaint related to the foregoing, all available relevant documentation from such adverse action or decision and a failure to remediate finding
must be included as part of the complaint.
Is the proposed text for 4.3(f)(iii) meant to replace some or all of this (and so is not in fact (iii)), or is it an additional subclause, following on from (ii), and
in which case is this “and” or “or” (either of which seem to lack coherence).
As you know, we have a Council meeting at 0500UTC Thursday, where Anne and I have referred this matter.
|
Susan Payne
|
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From: Lars Hoffmann via SubPro-IRT
<subpro-irt@icann.org>
Sent: 14 May 2025 09:20
To: Jared Erwin via SubPro-IRT <subpro-irt@icann.org>
Cc: Jamie Hedlund <jamie.hedlund@icann.org>; Karla Hakansson <karla.hakansson@icann.org>
Subject: [SubPro-IRT] Recommendation 36.4 re: Fraudulent and Deceptive Practices
Dear all,
Please, find below a message from Jamie Hedlund, SVP
Contractual Compliance and U.S. Government Engagement
Best wishes. Lars
Dear IRT,
Attached please find a revised org proposal for implementation of SubPro Recommendation 36.4. I am sharing this revised proposal as Karla is out this week. As you will see, the proposal would:
- add a PIC to RA Spec. 11, Section 3 to prohibit a registry operator from engaging in fraudulent or deceptive business practices in performing
any Critical Function under this Agreement. By narrowly defining the scope of registry conduct subject to a PIC, it limits the extent to which ICANN org would be placed in the role of enforcing substantive areas of law that are outside ICANN’s mission and
bylaws.
- amend RA Section 4.3(f) to allow ICANN to terminate an agreement if a registry operator is determined by a court of competent jurisdiction
or by an arbitrator to have committed fraud or deceptive practices in the provision of Registry Services under this Agreement for the TLD, or is the subject of a judicial or arbitral determination that ICANN reasonably deems as the substantive equivalent.
We look forward to discussing this proposal at the next IRT meeting following Karla’s return from vacation. Thank you.
Best,
Jamie Hedlund
Jamie Hedlund
Senior Vice President, Contractual Compliance and
U.S. Government Engagement
Internet Corporation for Assigned Names and Numbers (ICANN)
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