Re: [soac-mapo] RE: Follow-up from Monday's Consultation on Rec. 6

[Evan Leibovitch <evan@xxxxxxxxx>]

On 18 November 2010 07:23, Philip Sheppard <philip.sheppard@xxxxxx> wrote:

>
> As to the questions I concur that we all agreed the Board should take
> ultimate responsibility.
> But I believe we recognised that the Board lacked expertise and so foresaw
> the need for external experts.
> Whether such provision is an automatic staff referral on receipt of an
> objection or needs to wait around for a Board meeting to occur, was I
> believe an open question.
> This seems to be the essence of the practical application question
> regardless of what we call the experts.
>


Under the staff's continued misunderstanding, the experts are to be used for
"dispute resolution".
Under the WG proposal, the experts are to give researched objective opinion
on whether an objection may be valid under applicability of international
law.

One is a subjective judgement that must take a position based on weighing
the advocacy of the two sides.
The other is an objective act of research.

The reality that law can be interpreted differently is the reason for
potentially having more than one expert; in their report to the Board the
experts don't necessarily have to agree.

Under the WG proposal, any objection that is withdrawn or rejected (by the
quick look or the experts) need not come before the Board. Only objections
which have been passed the quick look and have been seen to be within
international law (according to the experts) need come before the Board.



>  As to supermajorities of ALAC or governments, we must recall that the
> individual ALAC appointees are also not experts in this area.
>


There is nothing of this sort to recall, because never in the discussions of
the WG were governments or ALAC appointees EVER suggested to be experts.

Re-read the WG proposals.
The ALAC or GAC (as bodies, by internal agreement) may submit an objection
through the IO.
Individual governments or At-Large members must go through the conventional
process.
>From that point on, all objections -- regardless of source -- all objections
must go through the Quick Look, and if they pass that they are to be
considered by the expert panel.



> The ability of an ALAC appointee to be able to speak for his/her government
> definitively of this issue is I believe severely limited.
>

I have no idea what you mean by this. When have any ALAC appointees -- ever
in the history of ICANN -- presented themselves as representing a government
position?

Please explain. A previous example of such representation would be helpful.

Even if you meant to say GAC instead of ALAC I don't understand the
relevance of your point. Nobody is disputing the need for expert support. At
issue is the difference in the role of the experts -- the staff wants them
to be adjudicators performing dispute resolution, the WG is clear that the
experts' role should be limited to objective research (and optional
analysis) of legal applicability.

- Evan