RE: [soac-mapo] Third "draft recommendation" (individual government objections)

[Milton L Mueller <mueller@xxxxxxx>]

Mary:
What gives a government in, say, Saudi Arabia the authority to veto a TLD 
application based in, and legal in, say, Denmark?


From: owner-soac-mapo@xxxxxxxxx [mailto:owner-soac-mapo@xxxxxxxxx] On Behalf Of 
Mary Wong
Sent: Tuesday, September 07, 2010 9:58 AM
Cc: soac-mapo@xxxxxxxxx
Subject: RE: [soac-mapo] Third "draft recommendation" (individual government 
objections)

Would the GAC's concern be sufficiently addressed, and Principle G satisfied, 
if the following process (or something like it) was to be followed?

[adopting and amending Marika's and Bertrand's language]
Draft recommendation : The Applicant Guidebook should allow individual 
governments to file an objection based on national public interest concerns 
THAT ARE SPECIFIED BY THE OBJECTING GOVERNMENT AS BEING CONTRARY TO NATIONAL 
LAW.

[new suggestion follows]

Such national objections shall be subject to the Quick Look procedure under 
which a suitably-qualified legal expert will render an opinion as to whether 
the objections raise a substantive legal issue as to contravention of the 
applicable national laws. Such a finding may [would?] not lead to a full 
objection procedure ... [FOLKS: need help here as to whether government 
objections based on national law/interests should trigger a full dispute 
resolution process or just lead to blocking or ... ?]

The above is on the assumptions that (1) we retain a Quick Look procedure; and 
(2) such a procedure will accommodate BOTH a "regular" objection filed based on 
the final [narrow and specific] standards in contravention of principles of 
international law AND such specific national government objections.

[and then returning to Bertrand's suggestion]

Individual governments may, in the last resort, block APPROVED TLDs UNDER THEIR 
RESPECTIVE NATIONAL LAWS WHERE SUCH TLDs HAVE BEEN DETERMINED TO BE IN POSSIBLE 
CONFLICT WITH APPLICABLE NATIONAL LAWS. THE CURRENT RECOMMENDATION IS NOT 
INTENDED TO ENCOURAGE ANY SUCH BLOCKING BUT TO ENSURE THAT NATIONAL GOVERNMENTS 
have THE ABILITY to be heard AS PART OF THE EVALUATION process and be provided 
the opportunity to RAISE RELEVANT SUBSTANTIVE OBJECTIONS REGARDING THE 
POTENTIAL PUBLIC IMPACT OF AN APPLIED-FOR STRING.

I haven't had the chance to consider how best to fold the above into Richard's 
and others' great suggestions from last week, but wanted the group to have the 
opportunity to review this suggestion before today's call if possible.

Cheers
Mary

Mary W S Wong
Professor of Law
Chair, Graduate IP Programs
UNIVERSITY OF NEW HAMPSHIRE SCHOOL OF LAW
Two White Street
Concord, NH 03301
USA
Email: mary.wong@xxxxxxxxxxx<mailto:mary.wong@xxxxxxxxxxx>
Phone: 1-603-513-5143
Webpage: http://www.law.unh.edu/marywong/index.php
Selected writingsavailable on the Social Science Research Network (SSRN) at: 
http://ssrn.com/author=437584

>>>
From:

"Gomes, Chuck" <cgomes@xxxxxxxxxxxx>

To:

"Bertrand de La Chapelle" <bdelachapelle@xxxxxxxxx>

CC:

"Marika Konings" <marika.konings@xxxxxxxxx>, <soac-mapo@xxxxxxxxx>

Date:

9/7/2010 9:28 AM

Subject:

RE: [soac-mapo] Third "draft recommendation" (individual government objections)

Bertrand,

I think the ‘evaluation process’ is a much longer period than the ‘objection 
period’, the latter being a subset of the former.  Which would you prefer?

Chuck

From: Bertrand de La Chapelle [mailto:bdelachapelle@xxxxxxxxx]
Sent: Tuesday, September 07, 2010 8:59 AM
To: Gomes, Chuck
Cc: Marika Konings; soac-mapo@xxxxxxxxx
Subject: Re: [soac-mapo] Third "draft recommendation" (individual government 
objections)

Good question Chuck,

"Introduction process" was intended to cover the whole process from submission 
to delegation, ie : before the TLD is actually entered in the root. The idea 
was to distinguish the two phases : the capacity to voice objections before the 
final decision, and the last resort option to block if the TLD is introduced.

But you are right and we could instead use a term of the DAG, like "the 
evaluation process" or "during the objection period".

B.
On Tue, Sep 7, 2010 at 2:40 PM, Gomes, Chuck 
<cgomes@xxxxxxxxxxxx<mailto:cgomes@xxxxxxxxxxxx>> wrote:
It seems to me that Bertrand’s suggestions are helpful.  Does anyone disagree?  
I do have one question though: what is meant by ‘introduction process’?  Is 
that the ‘Initial Evaluation Process’ or something different?  We should use a 
term that is used in AGv4.

Chuck

From: owner-soac-mapo@xxxxxxxxx<mailto:owner-soac-mapo@xxxxxxxxx> 
[mailto:owner-soac-mapo@xxxxxxxxx<mailto:owner-soac-mapo@xxxxxxxxx>] On Behalf 
Of Bertrand de La Chapelle
Sent: Tuesday, September 07, 2010 8:23 AM
To: Marika Konings
Cc: soac-mapo@xxxxxxxxx<mailto:soac-mapo@xxxxxxxxx>
Subject: [soac-mapo] Third "draft recommendation" (individual government 
objections)

Marika,

The third "draft recommendation" listed below says :

Draft Recommendation: Clarify that in the current Draft Applicant Guidebook, 
Individual governments are able to file an objection based on a national 
concern. At the end of the day, national governments will block what they don't 
like, but they have to be heard and make their case and the potential impact it 
might have.

I am not sure the DAG 4 allows this already. Or have I missed something ?

The current DAG envisages only the four specific types of objection : string 
confusion, legal rights, MaPO and community. The MaPO objection process is the 
one we are talking about here (even if renamed). But in the current MaPO 
wording, there is no possibility, as far as I understand, for a particular 
government to voice an objection that is not linked to a general 
objectionability (according to principles of international law), but related to 
its own public interest concerns (ie :"sensitivities" to take the GAC wording).

If the group considers, as Konstatinos rightly put it, that : governments "have 
to be heard and make their case and the potential impact it might have", we may 
need to clarify the conditions for such an objection by one or a few 
governments.

So I suppose that what we actually mean is the following :

Draft recommendation : The Applicant Guidebook should allow individual 
governments to file an objection based on specific national public interest 
concerns.

On a side note, the wording of the second sentence could be improved by saying 
something like :

Individual governments may, in the last resort, block by law TLDs raising 
public interest concerns at the national level, but they have to be heard in 
the introduction process and be provided the opportunity to make their case and 
describe the potential impact the TLD might have.

In other words, the idea is to provide the avenue for a fair hearing of 
governments concerns in the introductory process, recognizing that if the 
string is approved nonetheless, they will retain in any case the possibility to 
block.

I hope this helps.

Best

Bertrand


On Mon, Sep 6, 2010 at 11:45 PM, Marika Konings 
<marika.konings@xxxxxxxxx<mailto:marika.konings@xxxxxxxxx>> wrote:
Dear All,

Please find below the draft recommendations that came out of today’s CWG Rec 6 
WG meeting. For those on the call, please let me know if I’ve missed or 
misstated anything. For those of you that were not on the call, if you do not 
agree with one or more of these draft recommendations, please share your 
objection and reason for objection with the mailing list.

USE OF MORALITY & PUBLIC ORDER TERMS

Draft Recommendation: Remove the references to Morality & Public Order in the 
Draft Applicant Guidebook as far as these are being used as an international 
standard and replace them with the term ‘Public Order Objections’. Further 
details about what is meant with ‘Public Order Objection’ would need to be 
worked out to ensure that it does not create any confusion or contravene other 
existing principles such as principle G.

INTERNATIONAL PRINCIPLES OF LAW

Draft Recommendation: Give serious consideration to other treaties to be added 
as examples (see list circulated by Marilyn Cade) in the Draft Applicant 
Guidebook, noting that these should serve as examples and not be interpreted as 
an exhaustive list.

Draft Recommendation: Clarify that in the current Draft Applicant Guidebook, 
Individual governments are able to file an objection based on a national 
concern. At the end of the day, national governments will block what they don't 
like, but they have to be heard and make their case and the potential impact it 
might have.

Draft Recommendation: Clarify terminology by using Principles of International 
Law instead of International Principles of law to make it consistent with what 
GNSO intended (possible implications to be further discussed in meeting 
tomorrow with Jones Day lawyer)

HIGH BOARD TRESHOLD FOR APPROVING / REJECTING

Draft Recommendation [For further discussion on tomorrow’s meeting]: To reject 
a string for which a recommendation 6 objection has been filed, there should be 
a higher threshold of the board to approve a string / there should be a higher 
threshold to reject a string / a sub-set might require a higher threshold to 
approve.

If you cannot participate in tomorrow’s meeting in which Carroll Dorgan from 
Jones Day will participate, please share any questions you would like to ask 
him with the mailing list so these can be put forward if time allows.

With best regards,

Marika

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--
____________________
Bertrand de La Chapelle
Délégué Spécial pour la Société de l'Information / Special Envoy for the 
Information Society
Ministère des Affaires Etrangères et Européennes/ French Ministry of Foreign 
and European Affairs
Tel : +33 (0)6 11 88 33 32

"Le plus beau métier des hommes, c'est d'unir les hommes" Antoine de Saint 
Exupéry
("there is no greater mission for humans than uniting humans")



--
____________________
Bertrand de La Chapelle
Délégué Spécial pour la Société de l'Information / Special Envoy for the 
Information Society
Ministère des Affaires Etrangères et Européennes/ French Ministry of Foreign 
and European Affairs
Tel : +33 (0)6 11 88 33 32

"Le plus beau métier des hommes, c'est d'unir les hommes" Antoine de Saint 
Exupéry
("there is no greater mission for humans than uniting humans")





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