[At-Large] [NA-Discuss] Fwd: Legal Status of ICANN RALO MOUs

[Wendy Seltzer]

Naturally, I disagree.  RALOs should want a way to hold ICANN 
accountable, since ICANN seems to be steadily shirking that 
responsibility to the public elsewhere.

Of course ICANN's legal counsel would not attempt to offer legal 
advice to the RALOs, whose interests might be adverse to his client.
The statement that "It would
probably not be prudent for either ICANN or the RALOs to structure
these relationships in a way that would expose ICANN or the RALOs to
potential liability and increased risk of litigation from non-parties
to these agreements."  can only be a suggestion to the RALOs.

With litigation often the only thing ICANN listens to, my 
recommendation (also not legal advice) is that it would be foolish 
for the RALO not to press for such accountability.  At the very 
least, we should make ICANN explain why it fears giving the public 
the ability to hold it to its contractual commitments.

--Wendy


At 02:42 PM 4/14/2007, At-Large Staff wrote:
>Dear North American ALS colleagues:
>
>Please find below the clarification promised on the status of MoUs
>with ICANN, and the view of the GC on the proposal by Wendy Seltzer on
>enforceability of the MoUs.
>
>
>
>---------- Forwarded message ----------
>From: Daniel Halloran <daniel.halloran at icann.org>
>Date: 12-Apr-2007 23:28
>Subject: Legal Status of ICANN RALO MOUs
>To: Nick Ashton-Hart <nick.ashton-hart at icann.org>
>Cc: Sue Jonklaas <sue.jonklaas at icann.org>
>
>
>Nick,
>
>You asked about the legal status of the MOUs that ICANN enters with
>its regional at-large organizations.  Pursuant to ICANN Bylaws
>Article XI, Section 2.4g <http://www.icann.org/general/
>bylaws.htm#XI-2.4g>, ICANN's RALO MOUs are intended to address the
>"the respective roles and responsibilities of ICANN and the RALO
>regarding the process for selecting ALAC members and requirements of
>openness, participatory opportunities, transparency, accountability,
>and diversity in the RALO's structure and procedures, as well as
>criteria and standards for the RALO's constituent At-Large Structures."
>
>The RALO MOUs were not intended to be "enforced" in courts of law --
>they do not include jurisdiction or dispute resolution language.
>They are intended only to document the structure and processes of
>these advice formulation and coordination organizations.  It would
>probably not be prudent for either ICANN or the RALOs to structure
>these relationships in a way that would expose ICANN or the RALOs to
>potential liability and increased risk of litigation from non-parties
>to these agreements.
>
>I hope this information is helpful.  Please let me know if I can be
>of any further assistance.
>
>Best regards,
>Dan Halloran
>
>
>--
>--
>Regards,
>
>Nick Ashton-Hart
>PO Box 32160
>London N4 2XY
>United Kingdom
>UK Tel: +44 (20) 8800-1011
>USA Tel: +1 (202) 657-5460
>Fax: +44 (20) 7681-3135
>mobile: +44 (7774) 932798
>Win IM: ashtonhart at hotmail.com / AIM/iSight: nashtonhart at mac.com /
>Skype: nashtonhart
>Online Bio:   https://www.linkedin.com/in/ashtonhart
>
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>NA-Discuss at atlarge-lists.icann.org
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>---
>Draft MoU with ICANN:
>http://www.icannwiki.org/NA_RALO_MOU
>
>Draft Operating Principles:
>http://www.icannwiki.org/NA_RALO_OP

--
Wendy Seltzer -- wendy at seltzer.org
Visiting Assistant Professor of Law, Brooklyn Law School
Fellow, Berkman Center for Internet & Society
http://cyber.law.harvard.edu/seltzer.html
http://www.chillingeffects.org/