RE: [gnso-dow123] DRAFT redline of recommendation 2
Here are a few comments in advance of today's call. I have not yet had an opportunity to discuss this with my ALAC colleagues, so these comments are submitted in my personal capacity: 1. With regard to Vittorio's comment about having multiple contracts: with hundreds of possible registrar jurisdictions, designing contracts for each of them would place an incredible research and drafting burden on ICANN. In my experience, global businesses use standard form contracts and place the burden of seeking a "variance" for local law on the entity claiming it cannot comply with the contract as written. This approach has benefits for everyone, I think. For ICANN, it eases the research, drafting and compliance burden. For registrars, it minimizes the benefit of forum-shopping for the most favorable contract. For registrants, it minimizes the confusion that could come with having to choose among numerous different contracts (as most gTLD registrants, out of necessity or choice, don't select a registrar in their local jurisdiction). 2. In Steve's draft (which is very helpful - thank you, Steve), we see this confidentiality language several times: "The Registrar/Registry may request that ICANN keep all correspondence between the parties confidential pending the outcome of the Whois Proceeding. It is recommended that ICANN respond favorably to such requests to the extent that they can be accommodated with other legal responsibilities and basic principles of transparency applicable to ICANN operations." I can understand making contractual negotiations private, but this isn't that sort of thing. Why permit these petitions for a variance to be private? I would think everyone - ICANN, registrars and registrants - would benefit from having these petitions (and ICANN's responses) publicly posted. If we do permit private requests, we ought to do two things (a) carefully define the specific instances in which private petitions are permitted; and (b) publicly post the name of the registrar and the jurisdiction in which the registrar is located at the time the variance is sought. 3. In the last section we see this language: "while the General Counsel prepares a report and recommendation and submits it to the ICANN Board for a decision" and "the Board should consider and take appropriate action on the recommendations contained in the General Counsel's report as soon as practicable." Approving these local law variances seems like a significant burden to place on the Board, which, as we know, is simply going to be guided by the recommendation of the General Counsel anyway. I would recommend simply giving counsel the ability to approve these; this should be a staff issue, not a Board issue. Have the President approve it, if we want some oversight, but I wouldn't push this to the Board. 4. Finally, I recall the General Counsel saying on our recent call that ICANN did not require registrars to violate local law. Why doesn't that statement obviate the need for any additional work on this point? I'll look forward to discussing this on our call. -- Bret Fausett Hancock, Rothert & Bunshoft, LLP 515 So. Figueroa Street, 17th Floor Los Angeles, California 90071 Direct Dial Telephone: (213) 689-7432 Direct Facsimile: (213) 947-1568 ---------------------------------------------------------------- Attachment:
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