[lac-discuss-es] RES: OP
carlosaguirre62 en hotmail.com
carlosaguirre62 en hotmail.com
Mie Ago 15 01:12:47 UTC 2012
[[--Translated text (en -> es)--]]
Asunto: Re: RES: OP
De: carlosaguirre62 en hotmail.com
Corea del Sur: ¿Podría ser, pero tu comentario no ayuda.
Saludos.
Carlos Dionisio Aguirre
NCA Consejo de la GNSO - ICANN
el ex miembro de ALAC por LACRALO
Abogado - Especialista en Derecho de los Negocios
Sarmiento 71 - 4to. 18 Córdoba - Argentina -
* 54-351-424-2123 / 423-5423
http://ar.ageiadensi.org
> From: rok en bango.org.bb
> To: carlosaguirre62 en hotmail.com; carlton.samuels en gmail.com
> CC: lac-discuss-en en atlarge-lists.icann.org
> Subject: Re: [lac-discuss-en] RES: OP
> Date: Tue, 14 Aug 2012 20:47:08 -0400
>
> 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 en 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 en gmail.com
> Date: Mon, 13 Aug 2012 12:41:48 -0500
> Subject: Re: [lac-discuss-en] RES: OP
> To: carlosaguirre62 en hotmail.com
> CC: lac-discuss-en en atlarge-lists.icann.org
>
>
> 2012/8/10 carlos dionisio aguirre <carlosaguirre62 en 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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