Re: [council] more questions on consensus policy and contracts

[Mawaki Chango <ki_chango@xxxxxxxxx>]

Hi,
those are very useful questions Avri, and during the meeting, I made
a point that is related to at least one of them, but couldn't express
it clearer than you do here (commenting below)...

--- Avri Doria <avri@xxxxxxx> wrote:


> 
> - 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?

These are not obvious issues, and I guess their understanding might
depend as well on differences related to legal (sub-)cultures...
During the meeting discussions, I was also surprised to hear (not
that the policy developed is not retroactive, which is normal, but)
that there might be, and there probably are, clauses of renewal that
could be detailed enough so that the renewal of existing contracts
simply remains out of the scope of a policy framework that is
developed during their initial or current term. 

I would have naturally thought that a renewal would be governed by
existing policy at the time of renewal. Apparently, this is not so
(of course I understand that under a new policy, a renewed contract
might become different enough from the initial one so that some may
consider it just another contract, not a renewal, though I would have
expected that the "presumptive rights of renewal" do not mean renewal
of *the same* but rather the renewal of the right to be in charge of
the gTLD management). 

Then the question for me (and supposedly for you Avri as well, if I
have well captured your concern here) remains: to what extent goes a
renewal clause in the kind of contracts we are talking about: exactly
same conditions, or renegotion of a fair number of conditions; next
iteration or all future iterations? In the latter, are existing
contracts going to be governed by their "auto-replicable" clauses, so
to speak, so that they would never be concerned by a relevant (to
their field of competence) policy framework that is adopted by the
Board and in force? If so, under what circumstances if any, could
this situation be inverted (a future iteration of an existing
contract be governed by a policy that has been put in place after
initial negotiation, and of course before the time of that
iteration)? Would you say that will request a *re-nogotiation*, or it
is just not possible without going to court?

I'm just trying to understand the legal rationale here, not trying to
 bring a burden on anyone's contract ;)

To those who participated in the meeting this weekend, I hope you had
or will have a safe trip back home; it was really nice seeing your
faces at my GNSO baptism (and Sophia's, too, of course:)), and thanks
a million to Marylin for hosting it, to a much alert and patient MC
or "pastor" if you will, Bruce, for leading it, and of course to the
ever dedicated staff for making it happen so smoothly. 

My kind respects to all,

Mawaki


> 
> - 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.
> 
> 
>