RE: [gtld-council] Regarding consensus

["Gomes, Chuck" <cgomes@xxxxxxxxxxxx>]

What questions would we want answered from these experts?  This should
not be an opportunity for advocacy of some experts' opinions about our
recommendations as much as it should be obtaining expert opinion
regarding unresolved issues we have.  Therefore, I strongly feel that we
should have well developed questions for them.

Can it be expected that the suggested experts would provide unbiased
opinions or do they favor the viewpoints of particular constituencies?
I do not have a problem with the latter as long as we know what their
biases are and as long as we provide for input from experts who hold
different view points.

Finally, if we do decide that additional expert consultation is needed,
I see absolutely no reason to delay other work while that happens.  I
believe we have plenty to do that would not be dependent on any expert
opinions we might obtain. 

Chuck Gomes
 
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> -----Original Message-----
> From: owner-gtld-council@xxxxxxxxxxxxxx 
> [mailto:owner-gtld-council@xxxxxxxxxxxxxx] On Behalf Of Robin Gross
> Sent: Tuesday, May 29, 2007 3:54 PM
> To: Bruce Tonkin; gtld-council@xxxxxxxxxxxxxx
> Subject: Re: [gtld-council] Regarding consensus
> 
> 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
>   http://www.wcl.american.edu/faculty/farley/
> 
> and Professor Jacqueline Lipton at Case Western Law:
>    http://law.case.edu/faculty/faculty_detail.asp?id=129
> 
> 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,
> Robin
> 
> 
> 
> 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 
> >perspectives.
> >
> >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 recommendations.
> >
> >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 
> >processes.
> >
> >  
> >
> >>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:
> >
> >http://www.gnso.icann.org/meetings/transcript-newgtls-mdr-22feb07.pdf
> >
> >
> >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
> >countries.
> >
> >Regards,
> >Bruce Tonkin
> >
> >
> >
> >
> >
> >
> >
> >
> >  
> >
> 
>