Re: [gnso-vi-feb10] a contribution on the compliance issue

[Sivasubramanian M <isolatedn@xxxxxxxxx>]

On Sun, Jun 20, 2010 at 2:25 PM, Avri Doria <avri@xxxxxxx> wrote:
>
> Hi,
>
> I think that is a great idea.  Instead of talking about compliance, we could 
> talk with compliance.
>
> a.
>
> On 20 Jun 2010, at 10:41, Jeff Eckhaus wrote:
>
>> I would also like to add that I spoke to David Giza of ICANN Compliance and 
>> he would like to join the group to help us wade through the issues.
>>
>>
>>
>> ----- Original Message -----
>> From: owner-gnso-vi-feb10@xxxxxxxxx <owner-gnso-vi-feb10@xxxxxxxxx>
>> To: Gnso-vi-feb10@xxxxxxxxx <Gnso-vi-feb10@xxxxxxxxx>
>> Sent: Sun Jun 20 01:30:09 2010
>> Subject: [gnso-vi-feb10] a contribution on the compliance issue
>>
>>
>> Hi,
>>
>> Was talking to Wendy Seltzer and she asked that I inject this comment into 
>> our discussion on compliance.
>>
>>
>> "There are several ways of dealing with compliance problems: Give ICANN less 
>> to enforce by stripping the requirements; or take some of the burden off 
>> ICANN by enabling other affected parties to enforce the contracts.  Just as 
>> public law often enables private parties to enforce statutes for the benefit 
>> of the public, contracts can permit third-party beneficiaries to sue to 
>> enforce their terms."

Compliance can also be indirectly enforced. What if the RAA is not
renewed in cases where a Registrar has deviated from rules, good
practices, conventions to a degree that is noticeably harmful?  This
form of indirect enforcement can work 1) if ICANN unambiguously
reserves its right to accredit or not accredit - without legally
assigning reasons (except that the approval mechanism is answerable to
the Community in obvious cases of harm to a good Registrar) 2) if the
periodic Compliance Review Team is fair and balanced and 3) if the
length of the RAA is not too long to be considered 'long-term'
accreditation ( This would also have to be fair to Registrars who
would find frequent renewal process tiresome. A solution could be in
the form of a combination of 'auto-renewal' of an RAA legally defined
as a document valid for a year (but automatically extended every year
for a three years) and 'periodic review' once in 3 years which can
also be routine for Registrars with visibly good business practices.
The 'discrimination' between Registrars can be based on the length of
a Registrar's relationship with ICANN ( A newly accredited Registrar
gets a one year agreement strictly reviewed at the end of the term, a
older Registrar with a good record is 'auto-renewed'.  Another way of
'discrimination' could be based on neutral industry-wide evaluations
that reliably assess violations clause by clause, Registrar by
Registrar.  Based on these neutral studies and also based on direct
reports to the Compliance mechanism, most Registrars can be classed
for the 'auto-renewal' stream while the visibly harmful Registrars are
red-channeled. ) All this definitely depends on points 1) and 2)
mentioned above.

(This also partially addresses the remarks on the Free Trade Proposal
in image 0707 at page
https://st.icann.org/vert-integration-pdp/index.cgi?flip_chart_photos.
It was mentioned that the Free Trade Proposal is 'extremely' expensive
to enforce. It could actually be less expensive to enforce policies
put forth in the FT proposal. It is also remarked that the FT proposal
promotes 'gaming'. This and other harms are to examined one by one and
solutions to be arrived at by deliberations.  )

Sivasubramanian M
(away from all the action)

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>> a.
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