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Re: [gtld-council] Regarding consensus

  • To: Bruce Tonkin <Bruce.Tonkin@xxxxxxxxxxxxxxxxxx>, gtld-council@xxxxxxxxxxxxxx
  • Subject: Re: [gtld-council] Regarding consensus
  • From: Robin Gross <robin@xxxxxxxxxxxxx>
  • Date: Tue, 29 May 2007 12:53:48 -0700

Thank you, Bruce.

I very much welcome the opportunity to have a more substantive discussion on this and to discuss specific examples of international law. So we would like for the council to accept legal briefing papers on this issue from neutral outside legal experts. Two very well respected international law academics have agreed to provide us with legal briefing papers on this issue in the next week.
Professor Christine Haight Farley at American University

and Professor Jacqueline Lipton at Case Western Law:

So I propose that we hold off on our substantive discussion until we've had a chance to receive and consider these expert briefing papers. This would push our discussion back only 2 weeks or so and would give us a chance to address this concern in some detail.

Thank you,

Bruce Tonkin wrote:

Hello Robin,

1. Discuss whether the existing draft policy actually reflects the consensus view of the committee.

Agreed.  This is the purpose of the meeting in 7 June.   The
recommendations haven't come from thin air though.  They are an output
of a series of face-to-face meetings where the recommendations were
developed and debated.     Of course the people involved in those
meetings may have changed over time - so you will inevitably get new

However there has yet to be a formal vote - and I would like to at least
get some formality on the level of consensus we have on each of the
I certainly don't want to "rush" things - but I do want to converge on
some consensus recommendations - so at some point we do need to formally
vote, and identify which recommendations have consensus support.   Of
course there is substantial staff work needed to convert these
recommendations into a practical RFP and practical dispute resolution

2. Accept input from neutral outside experts regarding how this draft policy tracks existing international legal standards for trademark rights and free expression rights.

Not sure what you mean here.  We accept input from anyone on the policy
process, or do you mean that you want staff to pay for a  particular
piece of work?   With respect to the latter, the staff are indeed
planning to get some outside expertise to see how to set up the various
dispute mechanisms that are indicated in the recommendations, and that
any dispute process will need to rely on international legal standards -
including those relating to free speech.    I will ask Denise Michel to
provide an update on these plans.

3. In February, NCUC made a proposal to amend the draft policy recommendation, and the draft has yet to deal with the NCUC proposal in any way. http://www.ipjustice.org/ICANN/drafts/022207.html

I believe the NCUC submission was discussed  during the meetings in
Marina Del Ray around 22 Feb 07 - perhaps you could refer to the audio
recording in the first instance.   I do recall that you were on
teleconference for a significant part of that discussion though.   The
transcript is available at:


From memory I think it was agreed that the process would rely on
international law and would use outside bodies where possible that were
qualified to make judgements using international law.   We want to avoid
ICANN making up its own rules in anything other than security and
stability issues, and then relying on staff to make judgements against
those rules.

We can certainly improve the recommendations and guidelines to make that
clear if you don't believe that is clear.   I would certainly welcome
any text to assist in that area.

I think it would certainly be helpful to give some specific examples of
what we mean by "international law".  My understanding is this is law
that has resulted from treaties signed by some countries - that in turn
have often incorporated the international law into their national laws.
So really we are identifying laws that have wide acceptance by

Bruce Tonkin

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