FW: My suggestions for tweaking HR Sub-Team questions after yesterday's Legal team call
Below is the copy of the mail I sent to Leon re HR questions - I had noted some clarifications to what legal team was considering and Leon asked me to take a pass at clarifying. David From: McAuley, David Sent: Friday, November 18, 2016 9:43 AM To: 'ccwg-accountability5@icann.org' Subject: My suggestions for tweaking HR Sub-Team questions after yesterday's Legal team call Hi Leon and legal team, Here are the question we addressed yesterday with respect to the HR sub-team: 1. What is the definition ICANN legal uses for 'applicable law'? 2. What does the term "Respect" mean according to the bylaws (in relation to Core Values)? 3. What is the relationship between core values and commitments in general; and the HR core value and commitments in particular? 4. How does the balancing progress between core values, as described in the bylaws, take place? Is it documented? On the call I noted some comments in the nature of clarification and Leon asked if I would suggest some revisions on list and here below are my thoughts. First, however, two important points. One, I will separately send a copy of this memo to Niels ten Oever, one of the rapporteurs of the HR Sub-Team who is handling this matter for the sub-team. I will ask Niels to contact us through Leon rather quickly if he has any issue with any of this. And, two, recall that I am a member of the HR Sub-team and have taken an active position on the nature of "respect" and the meaning of "applicable law" in the team. There are other views than mine and they have been reasonably expressed - the discussion is not ended. So I come at this with a point of view, nonetheless I have endeavored to make these "tweaked" questions fair and in keeping with the questions originally posed by Niels. Here is how I suggest we handle these questions and forward them to ICANN legal: 1. With respect to ICANN legal's understanding of the definition of "applicable law": a. Has ICANN legal developed an understanding of the meaning of the term "applicable law"? b. If so, does that understanding apply in the context of the new bylaw at Article 1.2(b)(viii)? c. Would the following definition of "applicable law," currently under consideration by the CCWG WS2 Sub-Team on Human Rights, be consistent with either or both of those?: a. <Quote>: Applicable law refers to the body of law that binds ICANN at any given time, in any given circumstance and in any relevant jurisdiction. It consists of statutes, rules, regulations, etcetera, as well as judicial opinions, where appropriate. It is a dynamic concept inasmuch as laws, regulations, etcetera, change over time. Applicable law can have disparate impacts on ICANN around the globe: for example, if ICANN employs personnel in different jurisdictions then it must observe the appropriate labour laws in those various locales. Applicable law is thus a large body of law that eludes our ability to catalogue, but it is ascertainable in the context of a specific question or issue. <Quote> d. Please share the applicable understanding(s). 2. With respect to questions 2 through 4 above I suggest we leave the questions as they are but introduce each of them with this phrase: "In the view of ICANN legal,". Best regards, David David McAuley International Policy Manager Verisign Inc. 703-948-4154
Quick comment: shouldn't it be "balancing process" instead of "balancing progress" under question nr. 4? Best Jorge Von: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] Im Auftrag von McAuley, David Gesendet: Dienstag, 22. November 2016 20:13 An: ws2-hr@icann.org Betreff: [Ws2-hr] FW: My suggestions for tweaking HR Sub-Team questions after yesterday's Legal team call Below is the copy of the mail I sent to Leon re HR questions - I had noted some clarifications to what legal team was considering and Leon asked me to take a pass at clarifying. David From: McAuley, David Sent: Friday, November 18, 2016 9:43 AM To: 'ccwg-accountability5@icann.org' Subject: My suggestions for tweaking HR Sub-Team questions after yesterday's Legal team call Hi Leon and legal team, Here are the question we addressed yesterday with respect to the HR sub-team: 1. What is the definition ICANN legal uses for 'applicable law'? 2. What does the term "Respect" mean according to the bylaws (in relation to Core Values)? 3. What is the relationship between core values and commitments in general; and the HR core value and commitments in particular? 4. How does the balancing progress between core values, as described in the bylaws, take place? Is it documented? On the call I noted some comments in the nature of clarification and Leon asked if I would suggest some revisions on list and here below are my thoughts. First, however, two important points. One, I will separately send a copy of this memo to Niels ten Oever, one of the rapporteurs of the HR Sub-Team who is handling this matter for the sub-team. I will ask Niels to contact us through Leon rather quickly if he has any issue with any of this. And, two, recall that I am a member of the HR Sub-team and have taken an active position on the nature of "respect" and the meaning of "applicable law" in the team. There are other views than mine and they have been reasonably expressed - the discussion is not ended. So I come at this with a point of view, nonetheless I have endeavored to make these "tweaked" questions fair and in keeping with the questions originally posed by Niels. Here is how I suggest we handle these questions and forward them to ICANN legal: 1. With respect to ICANN legal's understanding of the definition of "applicable law": a. Has ICANN legal developed an understanding of the meaning of the term "applicable law"? b. If so, does that understanding apply in the context of the new bylaw at Article 1.2(b)(viii)? c. Would the following definition of "applicable law," currently under consideration by the CCWG WS2 Sub-Team on Human Rights, be consistent with either or both of those?: a. <Quote>: Applicable law refers to the body of law that binds ICANN at any given time, in any given circumstance and in any relevant jurisdiction. It consists of statutes, rules, regulations, etcetera, as well as judicial opinions, where appropriate. It is a dynamic concept inasmuch as laws, regulations, etcetera, change over time. Applicable law can have disparate impacts on ICANN around the globe: for example, if ICANN employs personnel in different jurisdictions then it must observe the appropriate labour laws in those various locales. Applicable law is thus a large body of law that eludes our ability to catalogue, but it is ascertainable in the context of a specific question or issue. <Quote> d. Please share the applicable understanding(s). 2. With respect to questions 2 through 4 above I suggest we leave the questions as they are but introduce each of them with this phrase: "In the view of ICANN legal,". Best regards, David David McAuley International Policy Manager Verisign Inc. 703-948-4154
Dear David, Thanks for this. As soon as we have OK from the HR Sub-group, I will be happy to forward the questions to ICANN legal. Saludos, León
El 22/11/2016, a las 13:13, McAuley, David <dmcauley@verisign.com> escribió:
Below is the copy of the mail I sent to Leon re HR questions – I had noted some clarifications to what legal team was considering and Leon asked me to take a pass at clarifying.
David
From: McAuley, David Sent: Friday, November 18, 2016 9:43 AM To: 'ccwg-accountability5@icann.org <mailto:ccwg-accountability5@icann.org>' Subject: My suggestions for tweaking HR Sub-Team questions after yesterday's Legal team call
Hi Leon and legal team,
Here are the question we addressed yesterday with respect to the HR sub-team:
1. What is the definition ICANN legal uses for ‘applicable law’?
2. What does the term “Respect” mean according to the bylaws (in relation to Core Values)?
3. What is the relationship between core values and commitments in general; and the HR core value and commitments in particular?
4. How does the balancing progress between core values, as described in the bylaws, take place? Is it documented?
On the call I noted some comments in the nature of clarification and Leon asked if I would suggest some revisions on list and here below are my thoughts.
First, however, two important points.
One, I will separately send a copy of this memo to Niels ten Oever, one of the rapporteurs of the HR Sub-Team who is handling this matter for the sub-team. I will ask Niels to contact us through Leon rather quickly if he has any issue with any of this.
And, two, recall that I am a member of the HR Sub-team and have taken an active position on the nature of “respect” and the meaning of “applicable law” in the team. There are other views than mine and they have been reasonably expressed - the discussion is not ended. So I come at this with a point of view, nonetheless I have endeavored to make these “tweaked” questions fair and in keeping with the questions originally posed by Niels.
Here is how I suggest we handle these questions and forward them to ICANN legal:
1. With respect to ICANN legal’s understanding of the definition of “applicable law”:
a. Has ICANN legal developed an understanding of the meaning of the term “applicable law”?
b. If so, does that understanding apply in the context of the new bylaw at Article 1.2(b)(viii)?
c. Would the following definition of “applicable law,” currently under consideration by the CCWG WS2 Sub-Team on Human Rights, be consistent with either or both of those?:
a. <Quote>: Applicable law refers to the body of law that binds ICANN at any given time, in any given circumstance and in any relevant jurisdiction. It consists of statutes, rules, regulations, etcetera, as well as judicial opinions, where appropriate. It is a dynamic concept inasmuch as laws, regulations, etcetera, change over time. Applicable law can have disparate impacts on ICANN around the globe: for example, if ICANN employs personnel in different jurisdictions then it must observe the appropriate labour laws in those various locales. Applicable law is thus a large body of law that eludes our ability to catalogue, but it is ascertainable in the context of a specific question or issue. <Quote>
d. Please share the applicable understanding(s).
2. With respect to questions 2 through 4 above I suggest we leave the questions as they are but introduce each of them with this phrase: “In the view of ICANN legal,”.
Best regards, David
David McAuley International Policy Manager Verisign Inc. 703-948-4154
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Thanks Leon and David, This seems OK with me, I've changed 'progress' into 'process' as suggested by Jorge Cancio, and added 'In the view of ICANN legal' to question 2-4. I am greatly looking forward to the response of ICANN legal. Best, Niels 1. With respect to ICANN legal’s understanding of the definition of “applicable law”: a. Has ICANN legal developed an understanding of the meaning of the term “applicable law”? b. If so, does that understanding apply in the context of the new bylaw at Article 1.2(b)(viii)? c. Would the following definition of “applicable law,” currently under consideration by the CCWG WS2 Sub-Team on Human Rights, be consistent with either or both of those?: <quote>: Applicable law refers to the body of law that binds ICANN at any given time, in any given circumstance and in any relevant jurisdiction. It consists of statutes, rules, regulations, etcetera, as well as judicial opinions, where appropriate. It is a dynamic concept inasmuch as laws, regulations, etcetera, change over time. Applicable law can have disparate impacts on ICANN around the globe: for example, if ICANN employs personnel in different jurisdictions then it must observe the appropriate labour laws in those various locales. Applicable law is thus a large body of law that eludes our ability to catalogue, but it is ascertainable in the context of a specific question or issue. </quote> d. Please share the applicable understanding(s). 2. In the view of ICANN legal, what does the term “Respect” mean according to the bylaws (in relation to Core Values)? 3. In the view of ICANN legal, what is the relationship between core values and commitments in general; and the HR core value and commitments in particular? 4. In the view of ICANN legal, how does the balancing process between core values, as described in the bylaws, take place? Is it documented? On 11/22/2016 08:37 PM, León Felipe Sánchez Ambía wrote:
Dear David,
Thanks for this. As soon as we have OK from the HR Sub-group, I will be happy to forward the questions to ICANN legal.
Saludos,
León
-- Niels ten Oever Head of Digital Article 19 www.article19.org PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9
Thanks Niels! As soon as I get ok from the Legal Committee, I will forward these questions to ICANN legal. Best regards, León
El 22/11/2016, a las 14:25, Niels ten Oever <lists@nielstenoever.net> escribió:
Thanks Leon and David,
This seems OK with me, I've changed 'progress' into 'process' as suggested by Jorge Cancio, and added 'In the view of ICANN legal' to question 2-4.
I am greatly looking forward to the response of ICANN legal.
Best,
Niels
1. With respect to ICANN legal’s understanding of the definition of “applicable law”:
a. Has ICANN legal developed an understanding of the meaning of the term “applicable law”?
b. If so, does that understanding apply in the context of the new bylaw at Article 1.2(b)(viii)?
c. Would the following definition of “applicable law,” currently under consideration by the CCWG WS2 Sub-Team on Human Rights, be consistent with either or both of those?:
<quote>: Applicable law refers to the body of law that binds ICANN at any given time, in any given circumstance and in any relevant jurisdiction. It consists of statutes, rules, regulations, etcetera, as well as judicial opinions, where appropriate. It is a dynamic concept inasmuch as laws, regulations, etcetera, change over time. Applicable law can have disparate impacts on ICANN around the globe: for example, if ICANN employs personnel in different jurisdictions then it must observe the appropriate labour laws in those various locales. Applicable law is thus a large body of law that eludes our ability to catalogue, but it is ascertainable in the context of a specific question or issue. </quote>
d. Please share the applicable understanding(s).
2. In the view of ICANN legal, what does the term “Respect” mean according to the bylaws (in relation to Core Values)?
3. In the view of ICANN legal, what is the relationship between core values and commitments in general; and the HR core value and commitments in particular?
4. In the view of ICANN legal, how does the balancing process between core values, as described in the bylaws, take place? Is it documented?
On 11/22/2016 08:37 PM, León Felipe Sánchez Ambía wrote:
Dear David,
Thanks for this. As soon as we have OK from the HR Sub-group, I will be happy to forward the questions to ICANN legal.
Saludos,
León
-- Niels ten Oever Head of Digital
Article 19 www.article19.org
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9
Technically I think it would be "balancing among Core Values" rather than "balancing between Core Values". "Between" would mean only two Core Values are being balanced. "Among" includes the possibility that three or more Core Values are being balanced. Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com _______________________________ Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com -----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Niels ten Oever Sent: Tuesday, November 22, 2016 1:26 PM To: ws2-hr@icann.org; León Felipe Sánchez Ambía Subject: Re: [Ws2-hr] FW: My suggestions for tweaking HR Sub-Team questions after yesterday's Legal team call Thanks Leon and David, This seems OK with me, I've changed 'progress' into 'process' as suggested by Jorge Cancio, and added 'In the view of ICANN legal' to question 2-4. I am greatly looking forward to the response of ICANN legal. Best, Niels 1. With respect to ICANN legal's understanding of the definition of "applicable law": a. Has ICANN legal developed an understanding of the meaning of the term "applicable law"? b. If so, does that understanding apply in the context of the new bylaw at Article 1.2(b)(viii)? c. Would the following definition of "applicable law," currently under consideration by the CCWG WS2 Sub-Team on Human Rights, be consistent with either or both of those?: <quote>: Applicable law refers to the body of law that binds ICANN at any given time, in any given circumstance and in any relevant jurisdiction. It consists of statutes, rules, regulations, etcetera, as well as judicial opinions, where appropriate. It is a dynamic concept inasmuch as laws, regulations, etcetera, change over time. Applicable law can have disparate impacts on ICANN around the globe: for example, if ICANN employs personnel in different jurisdictions then it must observe the appropriate labour laws in those various locales. Applicable law is thus a large body of law that eludes our ability to catalogue, but it is ascertainable in the context of a specific question or issue. </quote> d. Please share the applicable understanding(s). 2. In the view of ICANN legal, what does the term "Respect" mean according to the bylaws (in relation to Core Values)? 3. In the view of ICANN legal, what is the relationship between core values and commitments in general; and the HR core value and commitments in particular? 4. In the view of ICANN legal, how does the balancing process between core values, as described in the bylaws, take place? Is it documented? On 11/22/2016 08:37 PM, León Felipe Sánchez Ambía wrote:
Dear David,
Thanks for this. As soon as we have OK from the HR Sub-group, I will be happy to forward the questions to ICANN legal.
Saludos,
León
-- Niels ten Oever Head of Digital Article 19 www.article19.org PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9 _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.
Merriam Webster gives the meanings of “respect” shown below. I believe that in the context of the Bylaw, the word refers to the first and second meanings below as well as to the very balancing of Core Values and reaching an appropriate policy in each instance just as we are discussing in developing the FOI - HR. noun re·spect \ri-ˈspekt\ Popularity: Top 1% of lookups Simple Definition of respect : a feeling of admiring someone or something that is good, valuable, important, etc. : a feeling or understanding that someone or something is important, serious, etc., and should be treated in an appropriate way : a particular way of thinking about or looking at something Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com _______________________________ Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com -----Original Message----- From: Aikman-Scalese, Anne Sent: Tuesday, November 22, 2016 2:07 PM To: 'Niels ten Oever'; ws2-hr@icann.org; León Felipe Sánchez Ambía Subject: RE: [Ws2-hr] FW: My suggestions for tweaking HR Sub-Team questions after yesterday's Legal team call Technically I think it would be "balancing among Core Values" rather than "balancing between Core Values". "Between" would mean only two Core Values are being balanced. "Among" includes the possibility that three or more Core Values are being balanced. Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _______________________________ Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com -----Original Message----- From: ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org> [mailto:ws2-hr-bounces@icann.org] On Behalf Of Niels ten Oever Sent: Tuesday, November 22, 2016 1:26 PM To: ws2-hr@icann.org<mailto:ws2-hr@icann.org>; León Felipe Sánchez Ambía Subject: Re: [Ws2-hr] FW: My suggestions for tweaking HR Sub-Team questions after yesterday's Legal team call Thanks Leon and David, This seems OK with me, I've changed 'progress' into 'process' as suggested by Jorge Cancio, and added 'In the view of ICANN legal' to question 2-4. I am greatly looking forward to the response of ICANN legal. Best, Niels 1. With respect to ICANN legal’s understanding of the definition of “applicable law”: a. Has ICANN legal developed an understanding of the meaning of the term “applicable law”? b. If so, does that understanding apply in the context of the new bylaw at Article 1.2(b)(viii)? c. Would the following definition of “applicable law,” currently under consideration by the CCWG WS2 Sub-Team on Human Rights, be consistent with either or both of those?: <quote>: Applicable law refers to the body of law that binds ICANN at any given time, in any given circumstance and in any relevant jurisdiction. It consists of statutes, rules, regulations, etcetera, as well as judicial opinions, where appropriate. It is a dynamic concept inasmuch as laws, regulations, etcetera, change over time. Applicable law can have disparate impacts on ICANN around the globe: for example, if ICANN employs personnel in different jurisdictions then it must observe the appropriate labour laws in those various locales. Applicable law is thus a large body of law that eludes our ability to catalogue, but it is ascertainable in the context of a specific question or issue. </quote> d. Please share the applicable understanding(s). 2. In the view of ICANN legal, what does the term “Respect” mean according to the bylaws (in relation to Core Values)? 3. In the view of ICANN legal, what is the relationship between core values and commitments in general; and the HR core value and commitments in particular? 4. In the view of ICANN legal, how does the balancing process between core values, as described in the bylaws, take place? Is it documented? On 11/22/2016 08:37 PM, León Felipe Sánchez Ambía wrote:
Dear David,
Thanks for this. As soon as we have OK from the HR Sub-group, I will
be happy to forward the questions to ICANN legal.
Saludos,
León
-- Niels ten Oever Head of Digital Article 19 www.article19.org<http://www.article19.org> PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9 _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org<mailto:Ws2-hr@icann.org> https://mm.icann.org/mailman/listinfo/ws2-hr ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.
participants (5)
-
Aikman-Scalese, Anne -
Jorge.Cancio＠bakom.admin.ch -
León Felipe Sánchez Ambía -
McAuley, David -
Niels ten Oever