[At-Large] ICANN75: Mandatory Funded Traveler Registration for Roberto Gaetano

Olivier Kouami olivierkouami at gmail.com
Wed Jul 27 00:12:20 UTC 2022


Thanks you @Marita.
It'll be nice from the Ombuds.
Please, Is it nice and fair like this ?
Warm regards
Olévié

Le mar. 26 juil. 2022 à 16:54, Marita Moll <mmoll at ca.inter.net> a écrit :

> Hi Olivier. It's an interesting question. Here is the web description of
> what the ombuds office does:
>
> "The ICANN Ombudsman's job is to make sure that ICANN community members
> are treated fairly. Acting as an impartial mediator, the Ombudsman helps
> resolve disputes on issues involving the ICANN Board, staff and supporting
> organizations."
>
> I don't know where the Ombudsman would fit in. That office tends to work
> on individual grievances. We are having some success in getting the waiver
> adjusted, amended, toned down and we have just had a commitment from Leon
> Sanchez, board vice-chair and holder of seat 15 and an ALAC appointee, that
> the board will continue to work on that waiver so that it does not operate
> as a deterrent/ demotivator for volunteers.
>
> So we need to keep up the pressure and keep paying attention. The waiver
> is already part of the requirement for all travelers funded by ICANN. The
> next item that really needs to be questioned is that part about heirs and
> relatives also giving up their rights. Is that even enforceable?
>
> Marita
> On 2022-07-26 11:30 a.m., Olivier Kouami wrote:
>
> Greetings from Sénégal
>
> Please, again, what is the role of the Ombudsman in this case.
> He is for what ?
> Warm regards
> Olévié
>
> Le mar. 26 juil. 2022 à 15:18, Marita Moll via At-Large <
> at-large at atlarge-lists.icann.org> a écrit :
>
>> Karl, it sounds like you are describing waiver v.1.0. I thought v.2.0
>> (the current version), was a lot more digestible. Clearly, the part about
>> heirs, etc. still exists in both. Without a test case, we don't know if a
>> certain waiver is going to survive a court challenge, but they are
>> intimidating. That's the whole point.
>>
>> I have said I would probably bow down and sign the current version of the
>> waiver if I felt my physical attendance at the meeting was important. It is
>> not a choice. And I wonder if this waiver signing will be part of any ICANN
>> related meeting -- e.g. RALO meetings, AGMs, etc. As you say at the end, it
>> is sad "that, ICANN, an organization whose legal purpose is "to lessen
>> the burdens of government" and that obtains its legal existence as a
>> "public benefit" corporation, feels that it must protect itself by the
>> Procrustean technique of chopping the rights off of those who wish to
>> attend its open and public meetings"
>>
>> I will say, again, in my lengthy career as a writer, speaker, policy
>> analyst, etc. who attended and organized hundreds of meetings, I never once
>> signed a waiver or asked anyone else to do so. Welcome to the post-pandemic
>> world, I guess.
>>
>> Marita
>>
>>
>> On 2022-07-25 3:59 p.m., Karl Auerbach via At-Large wrote:
>>
>> Wow, that's some "waiver"!   The California lawyer neurons in my head,
>> upon reading this thing, are screaming "California Civil Code section
>> 1670.5!!!!!"  This provision can effectively remove "unconscionable" terms
>> from contracts (such as this ICANN "waiver") or even void the entire
>> agreement.
>>
>>
>> https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=1670.5&lawCode=CIV
>>
>> There are other similar California provisions, such as 1770(a)(19) (which
>> is probably inapplicable because this waiver is not a sale or lease to a
>> consumer.)
>>
>> A couple of indicia of "unconscionable"ness are things like denial of
>> damages and limitations on the right to seek court relief, both of which
>> are in the ICANN "waiver".  Now, an indicator of unconcionable-ness is not
>> the same as being unconscionable.  But such indications are the kind of
>> yellow bricks that paved the road that led Dorothy to Oz.  So ICANN has,
>> via this overreaching "waiver" has at the least started down the road to
>> being subject to these California laws.
>>
>> I am, of course, presuming (perhaps incorrectly) that this agreement is
>> made under, interpreted under, and enforced under the laws of California -
>> but the agreement sloppily forgets to mention these rather important
>> aspects.
>>
>> The waiver, to my highly opinionated and jaded eyes, appears drafted by
>> someone who has not yet begun a career in law and who, if they have
>> started, is unlikely to finish well.  (More likely perhaps is that this is
>> the work of some low level associate has followed the practice of medieval
>> Scholastic monks who, when copying manuscripts, copied and merged text
>> without actually thinking about the meaning of what they were copying and
>> merging - the most famous example being the fable of Noah and the Ark
>> where, after ages of copying and merging, there are now divergent counts of
>> how many animals of each kind.)
>>
>> There is an old, and very bad joke:
>>
>>   An airplane crashes directly onto the border line between California
>> and Nevada.  Where are the survivors buried?
>>
>> The joke is that one does not bury the survivors who, presumably, are
>> quite alive.
>>
>> Well, ICANN's "waiver" makes promises on behalf of parties who do not yet
>> exist, like heirs and assigns.  There are much better ways to draft an
>> agreement to limit the propagation of obligations and duties to third
>> parties.  I was also amused by the sloppy drafting that left "personal
>> representatives" and "executors" dangling in a limbo of ambiguity between
>> two inconsistent sentences in the "waiver".
>>
>> And, of course, whenever an agreement uses words like "forever" my mind
>> says "remember the rule against perpetuities" - but that's something so
>> arcane that probably nobody understands what it means.
>>
>> I do hope ICANN was not billed by its law firm for the drafting of this
>> thing.  And I find it sad that, ICANN, an organization whose legal purpose
>> is "to lessen the burdens of government" and that obtains its legal
>> existence as a "public benefit" corporation, feels that it must protect
>> itself by the Procrustean technique of chopping the rights off of those who
>> wish to attend its open and public meetings.
>>
>>     --karl--
>>
>>
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