<div dir="auto">Thanks you @Marita.<div dir="auto">It'll be nice from the Ombuds. </div><div dir="auto">Please, Is it nice and fair like this ? </div><div dir="auto"><div dir="auto">Warm regards</div><div dir="auto">Olévié </div></div></div><br><div class="gmail_quote"><div dir="ltr" class="gmail_attr">Le mar. 26 juil. 2022 à 16:54, Marita Moll <<a href="mailto:mmoll@ca.inter.net">mmoll@ca.inter.net</a>> a écrit :<br></div><blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex">
<div>
<p><font face="Times New Roman, Times, serif">Hi Olivier. It's an
interesting question. Here is the web description of what the
ombuds office does:</font></p>
<p><font face="Times New Roman, Times, serif">"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."</font></p>
<p><font face="Times New Roman, Times, serif">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.</font></p>
<p><font face="Times New Roman, Times, serif">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? <br>
</font></p>
<p><font face="Times New Roman, Times, serif">Marita<br>
</font></p>
<div>On 2022-07-26 11:30 a.m., Olivier
Kouami wrote:<br>
</div>
<blockquote type="cite">
<div dir="auto">Greetings from Sénégal
<div dir="auto"><br>
</div>
<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>
</div>
<br>
<div class="gmail_quote">
<div dir="ltr" class="gmail_attr">Le mar. 26 juil. 2022 à 15:18,
Marita Moll via At-Large <<a href="mailto:at-large@atlarge-lists.icann.org" target="_blank" rel="noreferrer">at-large@atlarge-lists.icann.org</a>>
a écrit :<br>
</div>
<blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex">
<div>
<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>
</div>
<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" rel="noreferrer noreferrer" target="_blank">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>
<br>
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