Clause (e)

[Dennis Jennings <Dennis.Jennings@ucd.ie>]

Jon, Gabe,

More reaction - on continuing to re-read the Bylaws.....

I wonder at the first part of Clause (e), Section 1. General Powers,
Article IV: Powers (See below).  The issue is again (as in Clause (c))
one of competition.

First, since the clause is a General Power, it should be enabling rather
than restrictive.

Second, the clause significantly inhibits, in my view, the Corporation
using its general powers to enhance competition in the market.

I would have expected a clause along the lines of the following:

“The Corporation shall apply its standards and policies to promote
competition in the Internet market, wherever practicable, taking due
care that the interests of any particular party are not unreasonably and
unjustifiably harmed.”

I understand that Competition Law is framed this way around so that the
competition authorities can intervene to prevent an dominant incumbent
restricting the development of a competitive market.  I suggest that the
same must apply to the new Corporation.

I surmise that the clause as it stands will not be acceptable under
European Competition Law, and will inhibit the endorsement of the
document.  Could someone with expertise in European Competition Law
comment ?

Thanks
Dennis
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(e) The Corporation shall not knowingly apply any standard or policy in
a manner that it knows will disproportionately and unjustifiably destroy
a substantial property or contractual right of a particular party.