[lac-discuss-en] RES: OP

Wed Aug 15 00:47:08 UTC 2012

Some people want a car to take a truck load. All this talk about LACRALO 
being independent is foolishness. We must start with the reason why LACRALO 
was established. It was not a club or political party. It was started with 
the specific objective of getting inputs from Caribbean and Latin America 
internet users, not for us to go off on some jolly ride.

It seems that there are some who would want to hijack LACRALO to make it 
what they want to be. When that day comes and LACRALO is no longer relevant 
to ICANN, I would hope that the Caribbean countries come together and 
petition ICANN to make direct inputs to ICANN and leave LA to continue on 
their merry journey to nowhere.

LACRALO has lost focus and has gone into a steep political wilderness, where 
voting for officers is the prize... and where people jostle for positions as 
if their lives depend on it.

Depressing!

ROK

-----Original Message----- 
From: carlos dionisio aguirre
Sent: Tuesday, August 14, 2012 10:25 AM
To: carlton samuels
Cc: lac-discuss-en at atlarge-lists.icann.org
Subject: Re: [lac-discuss-en] RES: OP

My Dear Bro:  On this opportunity I can`t share with you. I insist in my 
position LACRALO is:  independent and soverign. As you said in your 
(wrong,for me ) interpretation, LACRALO can give rules itself and changes 
the same, so it shows it completely independent, dont have to respond to 
anybody. This sentence is clear: "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."
ICANN is another organization as showed the paragraph before. For that 
reason we have a MoU, because there are two organizations related by this 
kind of contract or agreement.
ICANN is based on the California Law, thats true, but this only affect the 
relationship with LACRALO, if LACRALO adopt some directive against this 
legal body (CAlifornia law). if not, MoU between two different organization 
remains alive in force.
LACRALO is constituted by Organizations, and the government body is it GA, 
wich is one delegate by each organization. This is the explanation of the 
"Signing Organizations" sentence.
Now LACRALO is supported by ICANN, according MoU, but this could change in 
the future, and LACRALO could follow being an organization independent, and 
the most important: this was the idea .
The idea from the begining was to have an independent organization in LAC 
region composed by End Users, that was the motivation of LACRALO. We are not 
part of ICANN, wich could be the sense of that?
ICANN and the multistackeholder model no need uniformity. And to build a 
diverse & democratic ecosystem ICANN need differents oppinion from different 
groups of opinion. LACRALO is one of them, composed by End Users 
organizations by LAC region. ICANN need a LACRALO independent and soverign.
My personal opinion on that.

A warm, big and strong hug to you.

Carlos Dionisio Aguirre
NCA GNSO Council - ICANN
former ALAC member by LACRALO
Abogado - Especialista en Derecho de los Negocios
Sarmiento 71 - 4to. 18 Cordoba - Argentina -
*54-351-424-2123 / 423-5423
http://ar.ageiadensi.org

From: carlton.samuels at gmail.com
Date: Mon, 13 Aug 2012 12:41:48 -0500
Subject: Re: [lac-discuss-en] RES: OP
To: carlosaguirre62 at hotmail.com
CC: lac-discuss-en at atlarge-lists.icann.org

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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