Attendees: 

Members:  David McAuley, Edward Morris, Greg Shatan, Leon Sanchez, Par Brumark, Pedro Silva, Robin Gross, Samantha Eisner 

Staff:  Alice Jansen, Grace Abuhamad, Brenda Brewer

Apologies:  Sabine Meyer

**Please let Brenda know if your name has been left off the list (attendees or apologies).**


Transcript

Transcript 5 March _CCWGLegal.docx

Transcript 5 March _CCWGLegal.pdf

Recording

The audio recording is available here: https://dl.dropboxusercontent.com/u/49890268/CCWGLegal.mp3

Notes

Update on selection process of Law Firm:

- Several calls took place with shortlisted candidates. 

- 8 law firms at the beginning of process.

- 3 shortlisted firms. 

 

Feedback:

- These decisions should be made by legal team. Who decides which law firms get shortlisted? 

--> CCWG jumped in to catch up with CWG. 

---> It is the CWG process - Leon liaised for the CCWG legal committee - process has been ongoing for few weeks. If CCWG likes firm the CWG hires, CCWG could use them. Could hire a different firm if not satisfactory but this would have impact on costs.

 

//Recording was paused due to identification of firms that we do not yet have authority to release more broadly at this time//

 

- Firm the CWG hires is not necessarily going to be the one the CCWG will hire.

ACTION ITEM: Include Robin in conversations with law firms.

ACTION ITEM: Provide time slots to Leon to hold call with law firm on Monday, 9 March.

- While we have been discussing terms of engagement with candidate, we have not engaged candidate. There have been discussions on whether it is appropriate to handle both CWG and CCWG. Law firms were asked if saw conflict: none of the firms detected issue-based conflicts and confirmed they would have resources to support both projects. We did not presuppose CCWG work, did not share documents, but ensured availability of resources and that there is no CoI. 

 

//Recording was paused due to identification of firms that we do not yet have authority to release more broadly at this time//

 

Review of legal scoping document

Suggestions that this document should be shortened.

 

Feedback:

- We should not take section on concerns and proposals out of document. Context is needed. Pushback from community if we don't include their feedback. 

--> Let lawyers expand on initial proposal. 

--> Clarify that these are not the only items we would consider. 

- The document is not too long. Do not waste too much time on editing the document. It is straightforward. Put jurisdiction on hold. Immunity is contrary to accountability. 

- Leave all questions that have been proposed in the document - they reflect genuine concerns from the stakeholders. Jurisdiction is a real concern. There is a link between accountability and jurisdiction. We are debating mechanisms that would eventually be implemented under certain jurisdictions - we would need to think about alternatives. Respect the jurisdiction concern.

--> This raises question of: is this WS1 or WS2? To date, it is considered WS2 due to the time this would require to implement and in light of declaration from Fadi at hearing. If WS1, this might derail the whole process. 

--> Lot of pressure on group - we need to ask the question of jurisdiction.

--> It is important to get feedback on jurisdiction and to ask questions. Some of the answers will show that US California jurisdictions are very strong for accountability and rule of law and offer increasing amount of flexibility for different methods of accountability. But if available in other jurisdictions, it should be known. We may return to jurisdiction discussions in CWG as well. 

--> Discussion about jurisdictional concerns regarding review panels is certainly an issue. Suggestion that Advisors' guidance be sought.

 

Conclusion:

- Keep document structure as it is.

- Nothing in the document as it is will be taken out.

 

- Panel of experts could be extremely helpful and should be mentioned to law firms – it is a resource that could be used. 

- Lee Bygrave's guidance could be useful – his participation in Istanbul meeting is tentative.

 

Proposed Goals

Proposed goals: How can we protect ICANN from being prone to capture? How can we protect ICANN from antitrust law in US? 

 

Feedback

- Antitrust review of potential mechanism would be desirable at some point in process. 

- Concerns about legal subteam coming up with new goals for the CCWG: it is not appropriate. 

--> We should address mechanisms to prevent the whole system to be prone to capture. Any change in jurisdiction might affect the whole organization and its stakehodlers regarding effect of antitrust law. 

- Antitrust is not a goal but a byproduct. Capture is a concern across other communities.

We are waiting to receive WP1, WP2, ST-PT conclusions.

ACTION ITEM: Robin to refine document before call with law firm for discussion. 

Action Items

ACTION ITEM: Include Robin in conversations with law firms.

ACTION ITEM: Provide time slots to Leon to hold call with law firm on Monday, 9 March.

ACTION ITEM: Robin to refine document before call with law firm for discussion. 

Documents Presented

Chat Transcript

Leon Sanchez: (3/5/2015 15:56) Hello everyone

  Pär Brumark (GAC): (15:57) Good evening!

  Leon Sanchez: (15:57) we don't have AC room dial-out option enabled right?

  Leon Sanchez: (15:57) Could you please dial me out?

  Brenda Brewer: (15:57) sure Leon

  Leon Sanchez: (15:58) Thanks Brenda!

  Alice Jansen 2: (16:01) The recording has started.

  Brenda Brewer: (16:01) The recordings have started.

  Greg Shatan: (16:01) I have joined the call.

  Greg Shatan: (16:02) I'm waiting to pounce.

  Grace Abuhamad: (16:02) Haha greg ! Nice

  Samantha Eisner: (16:02) I'm on the call

  Brenda Brewer: (16:03) Six people accepted the calendar invite for this call.  Six people also responded to the doodle poll.

  Leon Sanchez: (16:07) Thanks Brenda!

  Samantha Eisner: (16:07) Please hold the firm names as confidential as we do not have broader authority to disseminate lists of potential firms beyond the short list

  David McAuley: (16:08) This vetting process for the CWG and our group is a lot of work - thanks to those who did the heavy lifting on this

  Grace Abuhamad: (16:08) I paused the recording

  David McAuley: (16:11) Greg, while recording is paused, and in cofidence, can you say again which firm has undisclosed conflict - I did not hear it

  David McAuley: (16:11) meant confidence

  David McAuley: (16:14) thanks

  Grace Abuhamad: (16:20) I will resume recording

  Grace Abuhamad: (16:25) I wil pause recording

  Robin Gross [GNSO - NCSG]: (16:27) I expect this will be a very iterative process.

  Leon Sanchez: (16:28) I expect that too @Robin

  Grace Abuhamad: (16:31) I will resume recording

  Grace Abuhamad: (16:32) Thank you Leon

  Robin Gross [GNSO - NCSG]: (16:32) there is a more updated version here: https://docs.google.com/document/d/132V7P8nmyalhoso7zcevjW3_ox1laXn5JIEH3dDAF3A/edit?usp=sharing

  Robin Gross [GNSO - NCSG]: (16:33) just a few changes based on feedback from Tuesday's call

  Alice Jansen 2: (16:34) The most recent version is now available in the presentation pod.

  David McAuley: (16:34) +1 @Leon

  Leon Sanchez: (16:35) True @Robin

  Leon Sanchez: (16:35) no way of winning here :P

  Edward Morris: (16:36) I think that is quite true Robin

  David McAuley: (16:39) Greg covered what I was going to say

  Pedro Ivo Silva [GAC Brasil]: (16:39) +1 Robin and Greg

  Grace Abuhamad: (16:40) Please let me know if you intend to go off the record (if possible).

  Leon Sanchez: (16:41) LOL

  David McAuley: (16:47) Agree w/Leon that jurisdiction would fit in WS2

  Edward Morris: (16:47) Agreed

  Robin Gross [GNSO - NCSG]: (16:50) I agree we should have a juridiction question - lots want to get that info.  But we will tighten the language of this text.

  David McAuley: (16:52) Good point Pedro, we have that expert avaialble for consultation

  Robin Gross [GNSO - NCSG]: (16:52) Yes, let's keep it as it.  But tighten it up.  We've got great edits already suggested.

  David McAuley: (16:53) yes - I agree of format

  Robin Gross [GNSO - NCSG]: (16:53) I can send out a new version in the next day.

  Greg Shatan: (16:53) Pedro, the point about the Panel of Experts is incredibly important, and a key difference between the CWG and the CCWG.  We don't have them available to us.

  David McAuley: (16:53) thanks Robin

  Grace Abuhamad: (16:55) https://community.icann.org/display/acctcrosscomm/Advisors

  Grace Abuhamad: (16:56) Lee is tentative

  Grace Abuhamad: (16:56) Pending a passport renewal

  Pedro Ivo Silva [GAC Brasil]: (16:57) Hopefully he can make it :-)

  Robin Gross [GNSO - NCSG]: (16:58) I think it is a conflict for our group to ask those questions about protectin ICANN.

  Robin Gross [GNSO - NCSG]: (16:58) ICANN has lawyers to advise it on how to protect itself.

  Samantha Eisner: (16:58) Applicability of antitrust laws also goes to the different solutions, not just in change of jurisdiction situations

  Edward Morris: (16:58) Fully supportive of putting antitrust / competition law concerns front and centre.

  Samantha Eisner: (16:59) And agree that "protection of ICANN" is an awkward way to phrase

  David McAuley: (16:59) I actually think both issues are important subjects for advice, not sure the word "goals" applies

  Samantha Eisner: (16:59) it's not just about ICANN, it's about the collection of interests and how they fit into the different solutions

  Leon Sanchez: (16:59) Agree with the akwardness of the wording. Remember English is not my first language so please modify wording as you see fits :-)

  Robin Gross [GNSO - NCSG]: (16:59) These are not goals the CCWG decided on.  These are new proposals for goals of the group.

  David McAuley: (17:00) I think they could be specific questions

  Edward Morris: (17:02) Agree they should be questions, not goals, and should be expanded within the document.

  Greg Shatan: (17:02) Counsel will not let you avoid the antitrust questions....

  David McAuley: (17:07) Not me, thanks Leon

  David McAuley: (17:08) Thanks Robin

  Pedro Ivo Silva [GAC Brasil]: (17:08) thanks, Robin!

  Robin Gross [GNSO - NCSG]: (17:08) Thanks, Leon and all.

  David McAuley: (17:08) Good call - thanks Leon and all

  Edward Morris: (17:08) Thanks Leon

  Pär Brumark (GAC): (17:08) Txh!

  Pedro Ivo Silva [GAC Brasil]: (17:08) bye bye

  Leon Sanchez: (17:09) Thanks everyone!

  Leon Sanchez: (17:09) bye!

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