[lac-discuss-en] RES: OP

[Carlton Samuels]

2012/8/10 carlos dionisio aguirre <carlosaguirre62 at hotmail.com>

> :rule  that you mention doesnt apply in this case, because we have a
> specific rule. Ón the othe side LACRALO is not part of ICÁNN we only have
> a MOU signed, but we are independent of ICÁNN rules.
>
> Regards
>
> ================================
My brother Carlos:
See the highlighted portion of your text, as translated.  In this case, I
believe the interpretation is incorrect.

Your interpretation that LACRALO is 'independent' of ICANN rules is widely
held in Latin America. Without a doubt, I believe it is responsible for
declarations such as 'LACRALO is sovereign'.

Now, lawyers can and do disagree in interpretation of statute or documents.
 Case law confirms this situation.  Add to this and in this context, the
differences in legal histories and interpretative mechanisms of so-called
'common law' countries as in the Caribbean versus 'civil law' countries as
 predominant in Latin America.  Here is a perfect example and another such
case.

ICANN's premise is well defined in law. It exists as a 'public benefit'
corporation under the laws of the state of California. When it registered
as a legal entity, it filed its bye-laws with the State.  Those bye-laws
filed and accepted by the State of California binds and empowers its
operations and actions.

This means ICANN's actions are only legal and enforceable to the extent
they comply with its bye-laws.

LACRALO's premise is defined by the MOU signed with ICANN.  That MOU is
subject to the ICANN bye-laws; ICANN cannot make binding agreements that
are injurious to its bye-laws.

This is the text that describes the "Purpose and Scope" of LACRALO in the
MOU signed with ICANN:
"This Memorandum of understanding ("MOU")defines an agreement between the
Signing Organizations and the Internet Corporation for Assigned Names and
Numbers. Its intent is to establish, and define activities to be carried
out by, the Latin America & Caribbean Regional At-Large Large Organization,
and supported by ICANN."

Note the term *"Signing Organisations"*.

Here's the definition of said 'Signing Organisations': "Organizations in
the Latin America & Caribbean region certified by the ALAC as “At-Large
Structures” that are signatories to this MOU.".

It is the *signing organisations*, meaning the ALSes, that enjoy the legal
 relationship with ICANN.  In other words, LACRALO is purely a label for
ease of reference that means 'all of us ALSes, acting together'.

The certification requirement for ALSes poses another hurdle. The power to
accept and certify ALSes is ceded to the ALAC by way of the ICANN bye-laws.
 In other words, *LACRALO* does not and cannot exist absent an ICANN
bye-law mandated action of the ALAC.

The MOU states clearly the joint commitments, *singly and severally*, of
the parties to it.

The MOU, as signed, binds ICANN to six (6) commitments to the *LACRALO*.

In turn, the ALSes labeled LACRALO, meaning all of us who signed the MOU,
binds us, *singly and severally*,   to five (5) distinct actions along with
ICANN in pursuit of our joint commitments .

The truth is there is a gulf of a difference between the general Latin
American and Caribbean understanding of the meaning of the word 'sovereign'
in context.

As far back as 2006, we have invited and had interventions from ICANN legal
staff to explain this.  I am on the record repeatedly, attempting to align
the facts with the general understanding.  My last time was at Costa Rica.
I was responding to the contents of a document filed with the Secretariat
and comments in the General Assembly. And for my troubles, I was condemned
as a liar in several places. The recordings and transcripts are all
available for those who would wish details.

The records will show Cintra Sooknanan, a lawyer, has also pointed out the
misuse of the term.  So too, Lance Hinds and Roosevelt King.

>From my reading of her writings and interventions, I believe Fatima
Cambronera well understands the differences.

LACRALO is not and may not be 'sovereign'. Everything we might wish to do
in context of names and numbers policy advocacy, advice and development is
informed and limited by the signed MOU, which is itself subject to the
powers and scope granted by the ICANN bye-laws and the LACRALO Rules of
Procedure.

LACRALO may, if it so chooses, change its rules.  The process to do so is
described in its Rules of Procedure. And even if there was a move to change
the rules of procedure, you must follow the process as defined in the
rules. Lawyers and courts have a Latin term, 'ultra vires', to describe
actions contrary to established rules.

Here's the compelling one. LACRALO cannot change ICANN bye-laws.  And so
any rule change that undermines or rubbishes ICANN bye-laws would make
LACRALO a rogue and outside the parameters granted by the  ICANN MOU.

If this ever happens, any signatory to the MOU, meaning any ALS, has
standing and a duty of care to petition for grievance in this respect. And
ICANN is duty bound to respond and act as the MOU and its bye-law compels
it so to do.

Best,
- Carlton

==============================
Carlton A Samuels
Mobile: 876-818-1799
*Strategy, Planning, Governance, Assessment & Turnaround*
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