[lac-discuss-en] RES: OP

Carlton Samuels carlton.samuels at gmail.com
Wed Aug 15 14:38:20 UTC 2012


Bro Carlos:
Reasonable men can always agree to disagree and remain agreeable.

We disagree on this issue.  Regardless, you still enjoy my respect and
affection.

Best,
- Carlton

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


On Tue, Aug 14, 2012 at 9:25 AM, carlos dionisio aguirre <
carlosaguirre62 at hotmail.com> wrote:

>  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 User*s, 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*
> =============================
>
>


More information about the lac-discuss-en mailing list