[council] more questions on consensus policy and contracts

[Avri Doria <avri@xxxxxxx>]

Hi,

During last night's meeting I was trying to understand the relation  
between PDP consensus policy and contractual arrangements. I realize  
that this is a less then favored subject, and I apologize for holding  
up the progress of the meeting with my question last night and  
apologize if this message causes further distress. I want to see if  
what I understand, I understand correctly, and I want to clear up  
areas where I am still confused.  And while I did hear Bruce's  
explanation, the quality of the line made it difficult to follow  
completely, and I did not want to interfere with the meeting further  
by asking the questions at that time.
In my looking at it, I see at least two different questions:

- what can the council propose consensus policy on
- the relation between consensus policy and contracts,
  of which there are three types:
  - existing
  - renewing
  - new

- what the council can propose consensus policy on:

If I understand correctly, the GNSO council can propose policy,  
assuming it follows the procedures, on just about anything related to  
gTLDs that can be shown to be relevant under the Bylaws of 8apr05  
Article 1.  And the Board is empowered to approve policy, once  
presented by the GNSO council after all appropriate procedures, on  
anything interpreted as coming under the Mission as understood in the  
context of the Values.  This include the principles of public  
accountability, fairness, competitiveness, and transparency etc as  
well as 'preserving and enhancing the operational stability,  
reliability, security, and global interoperability of the Internet.'   
And if I understand correctly, the subjective qualities of 'feasible  
and appropriate' are put in several of the clauses to give the board,  
the council and the community flexibility in interpreting article 1 -  
though I am curious as to how these are determined given the relative  
nature of such appraisals - is the board the jury that must apply the  
'reasonable man' criteria.
- to what degree is consensus policy applicable to existing contracts  
and to what degree are existing contracts applicable to the creation  
of consensus policy?
If I understand correctly,  the nature or content of current  
contracts or the clauses in those contracts relating to consensus  
policy have _no_ effect on which policies can be created and  
approved, but only affect the degree to which new consensus policies  
can be applied during the term of that contract.  And, as these  
exclusions from consensus policy clauses are somewhat different in  
every contract, no general statement can be made about which  
consensus policies are applicable to the full set of current contracts.
- to what degree do consensus policies affect contracts in the  
process of renewal?
On this I am still confused. (at least I know I am confused here,  
obviously if I am wrong about what I wrote above, then I am also  
confused about that)  When a new contract is being negotiated what is  
the relationship between existing consensus policy, esp. policy that  
was created between the time the contract was originally negotiated  
and the time of renewal, and the renewal.  Does policy created during  
the term of the expiring contract have effect on the contract being  
renewed or on the clauses in that contract relating to exemptions  
from consensus policy?
- to what degree are negotiations on new contracts bound by consensus  
policy?
I am also confused on this.  Does consensus policy determine the  
nature and content of new contracts negotiated by ICANN staff.  Can  
the negotiators put in clauses exempting the signatories from  
existing consensus policy as awell as future consensus policy? Can  
consensus policy that is in effect at the time of negotiation, have  
an effect on the clauses in the contract that relate to the effect of  
future consensus policy on the contract conditions? I.e  Could there  
be a consensus policy that said future contracts could not exempt the  
signatories from a particular consensus policy?
I hope my questions do not disturb the debate on the TOR itself or on  
the important work to come up with recommendations about the creation  
of new gTLDs.  It is just that the contribution by the registry  
constituency got me thinking about the full extent of the influence,  
and relevance, of consensus policy.  I also apologize for not  
managing to understand the full issue from what I have read and from  
what was explained during last night's meeting.
thanks
a.