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Chehade to play hard-ball over unilateral right to amend?

Kevin Murphy, March 25, 2013, 14:56:35 (UTC), Domain Policy

ICANN CEO Fadi Chehade has reportedly indicated that the unilateral right to amend powers ICANN wants to put in its registry and registrar contracts are non-negotiable.

Speaking at a meeting of the Association of National Advertisers last week, Chehade is reported to have said: “I’m not going to back off this one.”

He is understood to have been referring to the changes ICANN wants to impose on the base new gTLD Registry Agreement and the Registrar Accreditation Agreement.

Amy Bivins of Bloomberg BNA’s Electronic Commerce & Law Report caught the speech live and tweeted the following:

Bivins’ full report is available behind BNA’s paywall.

The unilateral right to amend is just about the most controversial thing ICANN has proposed in a while.

It would give ICANN’s board of directors the power to make changes to both agreements in situations where registrars or registries cannot agree among themselves to a “special amendment” but there’s agreement by other community members that the change is required.

Registries and registrars argue that a contract in which one party has the power to change the agreement without the consent of the other is not really a contract at all.

But ICANN says the powers are needed, partly to redress existing imbalances: the fact that the RAA and RA both last for 10 years and that the RA has a presumptive right of renewal.

Without the right to change the RA over the protests of the registries, it’s possible that in future proposed changes could be vetoed by registries whose interests are not aligned with the “public interest”, ICANN argues.

ICANN says that it’s impossible to know how consolidation, future new gTLD rounds and power shifts in the ICANN community will affect the balance of power, meaning it needs a way to resist a registry choke-hold should the situation arise.

I suspect the fact that it’s taken about three years to get close to adding the recommendations of law enforcement relating to registrar conduct to the RAA may also have something to do with it.

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Comments (3)

  1. Rubens Kuhl says:

    And that’s how the multi-stakeholder model dies.

  2. Brad Mugford says:

    “ICANN CEO Fadi Chehade has reportedly indicated that the unilateral right to amend powers ICANN wants to put in its registry and registrar contracts are non-negotiable.”

    “Registries and registrars argue that a contract in which one party has the power to change the agreement without the consent of the other is not really a contract at all.”

    So much for the “multi-stakeholder” model.

    What they are demanding here is ridiculous. It is like asking a party to sign a blank check.

    ICANN has a checkered past, and “trust us” is not going to work.

    I expect the registrars and registries to fight back on this one.

    This power grab will not work. I can see government agencies getting involved if ICANN does not back off.

    Brad

  3. Brad Mugford says:

    “On the RAA, Chehade said that ICANN “will plan to reach consensus on a solid and enforceable Registrar Accreditation Agreement that is fair and balanced.””

    That was a quote from Fadi Chehade on a post from 11/5/2012 on this site.

    What ICANN is asking for is not a contract, it is rights greater than the other party with no accountability.

    Brad

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