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<div dir="auto">We have many things to do, we need insist with the neccesaries changes, to make a multistakeholder model better for the future.</div>
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Regards</div>
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Carlos Dionisio Aguirre</div>
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<div id="divRplyFwdMsg" dir="ltr"><font face="Calibri, sans-serif" style="font-size:11pt" color="#000000"><b>From:</b> At-Large <at-large-bounces@atlarge-lists.icann.org> on behalf of Olivier Kouami via At-Large <at-large@atlarge-lists.icann.org><br>
<b>Sent:</b> Tuesday, July 26, 2022 12:30:14 PM<br>
<b>To:</b> Marita Moll <mmoll@ca.inter.net><br>
<b>Cc:</b> At Large <At-Large@atlarge-lists.icann.org><br>
<b>Subject:</b> Re: [At-Large] ICANN75: Mandatory Funded Traveler Registration for Roberto Gaetano</font>
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<div dir="auto">Greetings from Sénégal
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<div dir="auto">Please, again, what is the role of the Ombudsman in this case. </div>
<div dir="auto">He is for what ?</div>
<div dir="auto">Warm regards </div>
<div dir="auto">Olévié </div>
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<div dir="ltr" class="x_gmail_attr">Le mar. 26 juil. 2022 à 15:18, Marita Moll via At-Large <<a href="mailto:at-large@atlarge-lists.icann.org">at-large@atlarge-lists.icann.org</a>> a écrit :<br>
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<blockquote class="x_gmail_quote" style="margin:0 0 0 .8ex; border-left:1px #ccc solid; padding-left:1ex">
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<p><font face="Times New Roman, Times, serif">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.
<br>
</font></p>
<p><font face="Times New Roman, Times, serif">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
</font>"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" <br>
</p>
<p>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.<br>
</p>
<p>Marita</p>
<p><br>
</p>
<div>On 2022-07-25 3:59 p.m., Karl Auerbach via At-Large wrote:<br>
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<blockquote type="cite">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. <br>
<br>
<a href="https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=1670.5&lawCode=CIV" target="_blank" rel="noreferrer">https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=1670.5&lawCode=CIV</a>
<br>
<br>
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.)
<br>
<br>
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.
<br>
<br>
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.
<br>
<br>
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.)
<br>
<br>
There is an old, and very bad joke: <br>
<br>
An airplane crashes directly onto the border line between California and Nevada. Where are the survivors buried?
<br>
<br>
The joke is that one does not bury the survivors who, presumably, are quite alive.
<br>
<br>
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".
<br>
<br>
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.
<br>
<br>
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.
<br>
<br>
--karl-- <br>
<br>
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