Re: [ga] WLS Suggestion

["Peter Dengate Thrush" <barrister@chambers.gen.nz>]

----- Original Message -----
From: "Karl Auerbach" <karl@CaveBear.com>
To: "Kristy McKee" <k@widgital.com>
Cc: <ga@dnso.org>
Sent: Friday, August 23, 2002 11:01 AM
Subject: Re: [ga] WLS Suggestion


snip
Karl said:
> I've been wrestling back and forth on the WLS issue.  I don't like giving
> NSI/Verisign yet another boon but I also don't like ICANN being a
> regulator of ever increasing size.

Karl, I have stayed out of the actual debate, but would like to comment on
some principles here.
ICANN becoming a "regulator" of matters relating to g-space matters
especially registry/registrar contracts is inevitable and compulsory  - its
part of the inevitable result of developing a global industry-led body to
manage this thing. While I believe there should be plenty of air between
policy making ICANN forums and the implementation arm, either ICANN does
this or we abandon it to your favourite government....

> (It may not be black letter contract law, but I do feel that those who are
> parties to a contract ought not to be unreasonably manipulative of one
> another - particularly when the contracts are of an adhesive quality [and
> more particularly when the public isn't allowed onto the regulatory body
> that establishes many of the contractual terms].

The argument over the need for representativeness in ICANN and the need for
open and transparent  process is assisted by reference to ICANN having to
perform these tasks. Removing the tasks because ICANN is not yet
representative should not (yet) be the approach.

And its not equivalent to two arms length commercial parties to a contract.
One is the internet communities' appointed  manager of a natural monopoly,
enjoined to manage that monopoly in the interest of that community according
to the consensus policies developed by that community, the other is a
commercial entity mandated to make a return to its investors. The fact that
the mechanism of compliance with those policies is contractual shouldn't, of
itself, be significant. In other words if it meant the import of contract
law so that enforcing those policies became frustrated, we should look for a
different compliance mechanism.

Good luck with your deliberations


regards

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