Re: [cctld-discuss] ccNSO membership applications.

[Nigel Roberts <nigel@isles.net>]

Further to this email, it seems our advisers have found a fundamental problem 
which would preclude certain ccTLD managers.

The application form signs you up not just to the 'limited number of global 
policies' but to /ICANN's/ by laws. The Board could in the future adopt by-laws 
and a ccTLD manager would be bound by them

This causes problems

1)	Where the ccTLD manager is itself a Government (issues of sovereignty and 
public procurement.

2)	Where the ccTLD is a private corporation (director with fiduciary duty to the 
corporation and bound not to cede power to shadow directors -- which ICANN board 
could in some circumstances be considered as.

It was my understanding that it was the global policies we agreed to -- not the 
extraterritorial legislation contained within the ICANN Board's ability to adopt 
  new by laws at ant time.

So, in short, can the Launching Group please explain who created the legalese 
small print they have inserted to the appliation form?


Nigel.

Nigel Roberts wrote:

> Which lawyer drafted the Agreement??
> 
> The problem is really the short timescale. This application form is 
> currently now being vetted by our lawyers. The more so as your proposal 
> has been written by *ICANN* staff not the ccNSO LG.
> 
> It seems almost unthinkable that we can get a Counsel's Opinion in the 
> time between when it was posted and the deadline for applications in 3 
> days time.
> 
> Therefore less haste would appear to be the order of the day to avoid a 
> perception of railroading a particular form.
> 
> 
> 
> Nigel
> 
> 
> Patricio Poblete wrote:
> 
>> On Mon, Sep 01, 2003 at 09:34:30AM +0100, Nigel Roberts wrote:
>>
>>> Read the application form.
>>>
>>> It commits you to follow **ICANN** By Laws as well as the membership 
>>> rules of the ccNSO.
>>>
>>> This means that in legal terms (I am advised by lawyers) the 
>>> application form as written means you cede authority (of a greater or 
>>> lesser extent) to ICANN by formal agreement with consideration (the 
>>> fees you pay to ICANN).
>>
>>
>>
>> Dear Nigel,
>>
>> The language in the application form is taken from the bylaws
>> (Article IX, Section 4, Paragraph 2(c)), and it was the result
>> of very long discussions among us, where we tried to balance
>> the commitment you make when joining the ccNSO, with as many
>> protections people felt were necessary. So, while it is true
>> that you agree to follow ICANN bylaws as they apply to ccTLDs
>> (i.e. Article IX and the relevant Anexes), there is a process
>> that ensuresw that any global policy that is approved will need
>> to have the strong support of the members, and even then, local
>> law prevails. Furthermore, you can be exempted of having to follow
>> it by a variety of reasons, and if eveything else fails, youi
>> can always leave.
>>
>> I hope this helps.
>>
>> Patricio
>>
> 
>