[lac-discuss-es] RES: OP

Mie Ago 15 12:17:50 UTC 2012

[[--Translated text (en -> es)--]]

 Asunto: Re: RES: OP 
 De: jam en jacquelinemorris.com

 Si LACRALO no es una parte de la ICANN, entonces tal vez no debería ser el n 
 Orrg gráfico como tal. 
 Jacqueline A. Morris 
 La tecnología debe ser como el oxígeno: Ubicua, necesaria, invisible y 
 Gratis. (Después de que Chris Lehmann) 

 El mar, 14 de agosto 2012 a las 10:25 AM, Carlos Dionisio Aguirre 
<carlosaguirre62 en hotmail.com> escribió: 
 > 
> 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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