[At-Large] ICANN75: Mandatory Funded Traveler Registration for Roberto Gaetano

Olivier Kouami olivierkouami at gmail.com
Tue Jul 26 15:30:14 UTC 2022


Greetings from Sénégal

Please, again, what is the role of the Ombudsman in this case.
He is for what ?
Warm regards
Olévié

Le mar. 26 juil. 2022 à 15:18, Marita Moll via At-Large <
at-large at atlarge-lists.icann.org> a écrit :

> Karl, it sounds like you are describing waiver v.1.0. I thought v.2.0 (the
> current version), was a lot more digestible. Clearly, the part about heirs,
> etc. still exists in both. Without a test case, we don't know if a certain
> waiver is going to survive a court challenge, but they are intimidating.
> That's the whole point.
>
> I have said I would probably bow down and sign the current version of the
> waiver if I felt my physical attendance at the meeting was important. It is
> not a choice. And I wonder if this waiver signing will be part of any ICANN
> related meeting -- e.g. RALO meetings, AGMs, etc. As you say at the end, it
> is sad "that, ICANN, an organization whose legal purpose is "to lessen
> the burdens of government" and that obtains its legal existence as a
> "public benefit" corporation, feels that it must protect itself by the
> Procrustean technique of chopping the rights off of those who wish to
> attend its open and public meetings"
>
> I will say, again, in my lengthy career as a writer, speaker, policy
> analyst, etc. who attended and organized hundreds of meetings, I never once
> signed a waiver or asked anyone else to do so. Welcome to the post-pandemic
> world, I guess.
>
> Marita
>
>
> On 2022-07-25 3:59 p.m., Karl Auerbach via At-Large wrote:
>
> Wow, that's some "waiver"!   The California lawyer neurons in my head,
> upon reading this thing, are screaming "California Civil Code section
> 1670.5!!!!!"  This provision can effectively remove "unconscionable" terms
> from contracts (such as this ICANN "waiver") or even void the entire
> agreement.
>
>
> https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=1670.5&lawCode=CIV
>
> There are other similar California provisions, such as 1770(a)(19) (which
> is probably inapplicable because this waiver is not a sale or lease to a
> consumer.)
>
> A couple of indicia of "unconscionable"ness are things like denial of
> damages and limitations on the right to seek court relief, both of which
> are in the ICANN "waiver".  Now, an indicator of unconcionable-ness is not
> the same as being unconscionable.  But such indications are the kind of
> yellow bricks that paved the road that led Dorothy to Oz.  So ICANN has,
> via this overreaching "waiver" has at the least started down the road to
> being subject to these California laws.
>
> I am, of course, presuming (perhaps incorrectly) that this agreement is
> made under, interpreted under, and enforced under the laws of California -
> but the agreement sloppily forgets to mention these rather important
> aspects.
>
> The waiver, to my highly opinionated and jaded eyes, appears drafted by
> someone who has not yet begun a career in law and who, if they have
> started, is unlikely to finish well.  (More likely perhaps is that this is
> the work of some low level associate has followed the practice of medieval
> Scholastic monks who, when copying manuscripts, copied and merged text
> without actually thinking about the meaning of what they were copying and
> merging - the most famous example being the fable of Noah and the Ark
> where, after ages of copying and merging, there are now divergent counts of
> how many animals of each kind.)
>
> There is an old, and very bad joke:
>
>   An airplane crashes directly onto the border line between California and
> Nevada.  Where are the survivors buried?
>
> The joke is that one does not bury the survivors who, presumably, are
> quite alive.
>
> Well, ICANN's "waiver" makes promises on behalf of parties who do not yet
> exist, like heirs and assigns.  There are much better ways to draft an
> agreement to limit the propagation of obligations and duties to third
> parties.  I was also amused by the sloppy drafting that left "personal
> representatives" and "executors" dangling in a limbo of ambiguity between
> two inconsistent sentences in the "waiver".
>
> And, of course, whenever an agreement uses words like "forever" my mind
> says "remember the rule against perpetuities" - but that's something so
> arcane that probably nobody understands what it means.
>
> I do hope ICANN was not billed by its law firm for the drafting of this
> thing.  And I find it sad that, ICANN, an organization whose legal purpose
> is "to lessen the burdens of government" and that obtains its legal
> existence as a "public benefit" corporation, feels that it must protect
> itself by the Procrustean technique of chopping the rights off of those who
> wish to attend its open and public meetings.
>
>     --karl--
>
>
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