If I read this correctly that Thiago is suggesting we use “best efforts” and that “reasonable best efforts” more ambiguous and possibly softer, I agree completely …
Paul
Paul Rosenzweig
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From: Ws2-jurisdiction [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Thiago Braz Jardim Oliveira
Sent: Wednesday, February 21, 2018 8:18 AM
To: ws2-jurisdiction@icann.org
Subject: [Ws2-jurisdiction] ENC: Agenda Materials for Jurisdiction Subgroup Meeting 21 Feb 2018 1300 UTC
It seems my email below was not delivered.
De: Thiago Braz Jardim Oliveira
Enviada em: quarta-feira, 21 de fevereiro de 2018 09:42
Para: Greg Shatan; ws2-jurisdiction
Assunto: RES: [Ws2-jurisdiction] Agenda Materials for Jurisdiction Subgroup Meeting 21 Feb 2018 1300 UTC
Dear all,
On the “best efforts” discussion we will have in a bit, allow me to reproduce one or two passages below echoing the point I made in our previous call:
‘with respect to limitations on the meaning of “best efforts”, some case law [in Canada] suggests that while “best efforts” require “first class efforts”, they do not require the party making them to sacrifice its own economic interest’ … ‘The Courts [in Canada] have not yet addressed whether the addition of the word “reasonable” has any impact on the interpretation of the “best efforts” obligation. Arguably “best efforts” already incorporates an element of “reasonableness” by definition as the Courts have defined “best efforts” to mean: “taking, in good faith, all reasonable steps to achieve the objective, carrying the process to its logical conclusion and leaving no stone unturned.”’ [https://sheanerland.com/insights/best-efforts-reasonable-efforts-commercially-reasonable-efforts-or-reasonable-best-efforts/]
I had previously found the same points in English jurisprudence, but am unable to find it again now.
In any case, I concede that “best efforts” is a higher standard than “reasonable efforts” (as it probably is in relation “reasonable best efforts” too), but the higher standard that is meant by a “best efforts” obligation has already embedded within it an element of “reasonableness”, and it would be a shame to limit the ambiguity (and leeway to abide by a higher or lower standard) that already exists in the expression, by adding “reasonable” to it”, which would come at the price of turning our call upon ICANN to obtain general licenses to OFAC even softer than it already is…
Best regards,
Thiago
De: Ws2-jurisdiction [mailto:ws2-jurisdiction-bounces@icann.org] Em nome de Greg Shatan
Enviada em: terça-feira, 20 de fevereiro de 2018 22:10
Para: ws2-jurisdiction
Assunto: [Ws2-jurisdiction] Agenda Materials for Jurisdiction Subgroup Meeting 21 Feb 2018 1300 UTC
All,
Attached are the Agenda, Draft Report and a document showing the open items we must resolve in the revised draft Report. I look forward to our call.
Greg