Re: [ga] Re: ICANN & transfers

[Don Brown <donbrown_l@inetconcepts.net>]

IANAL either, but it stands to reason that ICANN can enforce its
contract with the Registry.

Therefore, if ICANN's contract with the Registry includes the
procedure to be used for transfers between Registrars, then ICANN can
enforce that issue with the Registry.  The problem of enforcement is,
therefore, the Registry's problem and they can be in breach with ICANN
if the do not ensure specific performance.

The next question, though, is what happens if the Registry is in
breach? What is the downside for the Registry? What is it that keeps
them honest? (Err - sorry. Bad choice of words.) -- What contractual
penalty gets the Registry's attention?

I haven't read the contracts and have no desire to do so. It seems to
me, though, that the relationships are convoluted. ICANN accredits
Registrars and should have a one-to-one relationship WRT their
behavior in respect to that Accreditation. The procedures
should be a part of that Accreditation instrument, and IOW, the
Registry Agreement should not be involved or the least relevant. How
much were the lawyers paid to paint you into a corner (if that is,
indeed, the case)?

The incumbent Registry seems to contribute greatly to ICANN and in
that respect it is probably difficult to bite the golden glove.  OTOH,
if no one really ever looks at the financials, including the audit
committee and other directors, then the right thing to do becomes
the sole focus.

On a different note, there are a whole lot more ultimate consumers
than there are, or ever will ever be, Registries, Registrars or ISPs.
Ignoring the grass roots and locking them out of meaningful
representation on the board, voting and participation in ICANN as an
assembly or a consistency, will eventually result in ICANN's demise.

"Let them eat cake" didn't work long ago and the Ester flip-flam
doesn't work now. You are a well educated man who has done some very
great things in your life. Why would you want to screw it all up now?

Thanks,


Monday, July 29, 2002, 8:58:46 PM, vint cerf <vinton.g.cerf@wcom.com> wrote:
vc> Danny,

vc> neither of us is a lawyer but the general question of registrants and
vc> transfers seems to rise to visibility regularly. I'm looking into the
vc> question.

vc> vint

vc> At 09:32 PM 7/29/2002 -0400, DannyYounger@cs.com wrote:
>>Vint,
>>
>>In Bucharest the Board resolved [02.71] to adopt Reconsideration Decision 
>>02-2 which basically stated that, "Because the "registrar requirements" 
>>regarding transfers are not included in any contract enforceable by ICANN, it 
>>is not appropriate that ICANN attempt to enforce them".
>>
>>While ICANN is not a signatory to the registry-registrar agreements (in which 
>>transfers are governed by the language of an Exhibit therein), those specific 
>>agreements are, in fact, appendices that are referenced within the primary 
>>ICANN-registry agreements to which indeed ICANN is a signatory -- there is 
>>"linkage", and there is also language that states:  "Entire Agreement. This 
>>Agreement (including its appendices, which form a part of it) constitutes the 
>>entire agreement of the parties..."
>>
>>Obviously I am not a lawyer, but I would think that based on such linkage, 
>>ICANN does have an implied role in the enforcement of such provisions.  May I 
>>ask what your view is on this matter?  Registrants clearly have an interest 
>>in this transfers issue, and probably would want some assurances that someone 
>>is acting to protect their best interests... is that someone ICANN, or should 
>>they be turning elsewhere?  Is it part of ICANN's mission to afford such 
>>protections?

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