January 2016 - Accountability-Cross-Community

CCWG - Recommendation 1 - Final version for legal review
by Gregory, Holly Jan. 27, 2016

Jan. 27, 2016

Great question Mike, Individual ACs and SOs will be able to enforce their inspection rights through the IRP. And if the Board abuses the process by denying appropriate requests, the ACs and SOs can also petition the Empowered Community to use its escalation capabilities up to an IRP based on that abuse and potentially escalate further to enforcement and/or Board removal. Language could be added to clarify this if the CCWG-ACCT thinks helpful. Holly and Rosemary HOLLY J. GREGORY Partner and Co-Chair Global Corporate Governance & Executive Compensation Practice Sidley Austin LLP 787 Seventh Avenue New York, NY 10019 +1 212 839 5853 holly.gregory(a)sidley.com<mailto:holly.gregory@sidley.com> www.sidley.com<http://www.sidley.com/> [http://www.sidley.com/files/upload/signatures/SA-autosig.png]<http://www.sidley.com/> SIDLEY AUSTIN LLP From: accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Chartier, Mike S Sent: Tuesday, January 26, 2016 4:08 PM To: Bernard Turcotte Cc: ACCT-Staff (acct-staff(a)icann.org<mailto:acct-staff@icann.org>); Accountability Community Subject: Re: [CCWG-ACCT] CCWG - Recommendation 1 - Final version for legal review Thanks. I must have been wrong (Holly could set me straight). I thought a difference was the Sole Designator would be able to enforce the inspection right directly in court. From: Bernard Turcotte [mailto:turcotte.bernard@gmail.com] Sent: Tuesday, January 26, 2016 8:20 AM To: Chartier, Mike S <mike.s.chartier(a)intel.com<mailto:mike.s.chartier@intel.com>> Cc: Accountability Community <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>>; ACCT-Staff (acct-staff(a)icann.org<mailto:acct-staff@icann.org>) <acct-staff(a)icann.org<mailto:acct-staff@icann.org>> Subject: Re: [CCWG-ACCT] CCWG - Recommendation 1 - Final version for legal review Mike, Given what is proposed, individual decisional participants in the Empowered Community being able to make inspection requests (as per their own inter processes) directly to the Board, actually goes well beyond what the CCWG was originally requesting, escalation process for inspection (petition, support, community forum etc.), it was felt it was no longer necessary to provide inspection rights to the Sole Designator. Hope the answers your question. Cheers. B. On Mon, Jan 25, 2016 at 9:23 PM, Chartier, Mike S <mike.s.chartier(a)intel.com<mailto:mike.s.chartier@intel.com>> wrote: I must have missed in the minutes (or the meeting itself), but just for process sake, could you point me where the conclusion was reached to remove the right of inspection from the sole designator? From: accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Bernard Turcotte Sent: Monday, January 25, 2016 11:12 AM To: Accountability Community <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>>; ACCT-Staff (acct-staff(a)icann.org<mailto:acct-staff@icann.org>) <acct-staff(a)icann.org<mailto:acct-staff@icann.org>> Subject: [CCWG-ACCT] CCWG - Recommendation 1 - Final version for legal review All, Per the request of the co-chairs we are publishing the final draft version of Annex 1 for legal review. This version has been generated from the conclusion of the second reading document with minor edits by staff. As such you will find attached 2 versions, Word and PDF of the marked up text. Once this legal review is completed (48 hours - 16:00UTC Wednesday), results of the review will be published on this list, a final version will be generated and posted for final CCWG comments. Thank You. Bernard Turcotte ICANN Staff Support for CCWG **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. ****************************************************************************************************

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Re: [CCWG-ACCT] Nomenclature re "Empowered Community": ICANN Board comments - Recommendation 3 - Fundamental Bylaws
by Alan Greenberg Jan. 27, 2016

Jan. 27, 2016

Thanks Holly and Rosemary, e Somewhere in the archives I wrote a note suggesting that we reserve the term Sole Designator just for the Board member powers and that we not use it to describe the overall community powers. In fact, we could have TWO UAs, one for enforcing the community powers, and one for the Sole Designator, but for simplicity, we are using the Empowered Community UA (which is a superset of the SD). Alan At 26/01/2016 03:37 PM, Gregory, Holly wrote: >Dear CCWG-ACCT Co-Chairs, Members, Participants and Staff, > >We have been monitoring the recent discussion on >the CCWG-ACCT listserv about the use of the >terms âcommunityâ, âEmpowered >Communityâ, and âSole Designatorâ in the >draft Proposal, and we wish to share our understanding of these terms. > >We agree that the word âcommunityâ as used >in the draft Proposal encompasses not only >ICANNâs Board and all of its SOs and ACs and >their individual members, but also those who >participate in ICANN meetings and processes, as >explained by Bruce Tonkin in his January 24 email. > >âEmpowered Communityâ is the name to be >given to an unincorporated association to be >created in ICANNâs Bylaws. This new entity >has also been described as the âSole >Designator,â but that term -- which arose from >the new entityâs function as ICANNâs sole >designator -- does not adequately describe the >other important roles for the new entity, which >extend well beyond the rights given to >designators by California corporate >law. Therefore, the âEmpowered Communityâ >is a more appropriate reference, and it has been >used interchangeably with âSole Designatorâ to date. > >As a global final edit, we recommend using >âEmpowered Communityâ consistently to refer >to the new legal entity, after the first >discussion of the sole designator concept. > >Kind regards, >Hlly and Rosemary > > >HOLLY GREGORY >Partner > >Sidley Austin LLP >+1 212 839 5853 ><mailto:holly.gregory@sidley.com>holly.gregory(a)sidley.com > >From: >accountability-cross-community-bounces(a)icann.org >[mailto:accountability-cross-community-bounces@icann.org] >On Behalf Of Greg Shatan >Sent: Monday, January 25, 2016 11:42 PM >To: Jordan Carter >Cc: accountability-cross-community(a)icann.org >Subject: Re: [CCWG-ACCT] ICANN Board comments - >Recommendation 3 - Fundamental Bylaws > >Recommendation 1 states: > >. The entity created using the Sole Designator >model will be referred to as the âEmpowered Community.â >(Summary, Page 1, bullet point 3). > >In other words the Sole Designator is the >Empowered Community, and vice versa. You are >introducing a dichotomy where none exists. > >Greg > >On Mon, Jan 25, 2016 at 5:39 PM, Jordan Carter ><<mailto:jordan@internetnz.net.nz>jordan(a)internetnz.net.nz> wrote: >This isn't quite right - as far as I am aware >the entity that is the Sole Designator will have >the right to appoint and remove directors, and >be the 'third party' that can approve changes to >Icann fundamental bylaws or block changes to Icann standard bylaws. > >I'm not sure this is a revelation of any sort, >or causes any confusion at all. These powers >along with all the others will be set out in the >bylaws, as has been the case all along. The only >distinguishing feature is that the legislation >in California gives designators the director >rights, and gives the right of the articles / >bylaws to include third party approvals. > >Even if people are confused about this, there is >no problem in substance to resolve. > > >Cheers >Jordan > > >On Monday, 25 January 2016, Seun Ojedeji ><<mailto:seun.ojedeji@gmail.com>seun.ojedeji(a)gmail.com> wrote: > >Hi Greg, > >I don't think we are in disagreement in the >substance of all these. It's just the naming we >are in disagreement upon and I am still of the >opinion that a designator only has the statutory >power to remove/add board members. > >All other powers/process we have managed to put >in the bylaw may need to be called/named >something else as they are not made possible >because of the designator but rather because of >the fact that they are now written in the bylaw >and the board normally would want to respect such a document. > >In anycase, unless there is any other change you >think has been proposed other than giving >inspection rights to the community (which you >and I are in agreement) that affects the current >proposal, I don't see any reason to still consider this open as such. > >Regards >On 24 Jan 2016 18:02, "Greg Shatan" ><<mailto:gregshatanipc@gmail.com>gregshatanipc(a)gmail.com> wrote: >Seun, > >You misunderstand me. The Designator does more >than "enforce" powers. Under our proposal, the >designator is also the vehicle for exercising a >number of the powers (e.g., approving/rejecting >bylaws). The exercise of the new powers by the >designator will be a much more common occurrence >than the enforcement of those powers by removing >directors. I anticipate the latter will rarely >(if ever) occur, though the fact it can occur is >part of our accountability framework. There are >other reasons for the Board to comply with the >community's exercise of its powers, aside from >sheer terror at being removed. For one thing, >these powers are enshrined in the bylaws, and >the Board (like any Board) will not take the >prospect of violating our Bylaws lightly. > >We have had a tendency to overemphasize the >enforcement end of things, and I think this is >one more action in that vein. Let's try to >avoid that. Just like our proposal is about far >more than "enforcement," so is the Single Designator. > >So, no, your statement did not "close this >particular item." Rather, it demonstrates >exactly why this item is not really closed. > >Greg > >On Sun, Jan 24, 2016 at 10:48 AM, Seun Ojedeji ><<mailto:seun.ojedeji@gmail.com>seun.ojedeji(a)gmail.com> wrote: > >On 24 Jan 2016 16:15, "Greg Shatan" ><<mailto:gregshatanipc@gmail.com>gregshatanipc(a)gmail.com> wrote: > > > > I agree with the result the Board came to (at > least in part), but not the reasoning. Each SO > or AC should have the right to > inspect. However, the role of the Designator > is not merely to "add or remove Board members." > The Designator plays a critical role in the > exercise of several of the powers, in addition > to its role in enforcing those powers via director removal. > > >SO: I guess Bruce was rightly mentioning the >powers of the designator. I believe we we will >only be getting those powers enforced as a >result of the "add/remove" power of the designator. > >So in summary we don't get enforcement of the >various powers because it's a role of the >designator but on the basis that the designator >may use its only statutory power, which is to add/remove board members. > >I generally agree with the result and would have >even preferred that a threshold be required for >inspection. However, on the basis that each >SO/AC may need access to certain information to >make informed/independent decisions, it makes >sense to allow such right to each SO/AC. > >Hopefully this close this particular item. > >Regards > > on Recommendation 1. > >> > >> Just to provide a little more context in > response to questions on the list. > >> > >> The role of the designator is to add or > remove Board directors. This role is enforceable under California law. > >> > >> The inspection right is a right for the ACs > and SOs. An AC or SO can exercise this right > independently of the legal entity that will be > the sole designator. If ICANN doesn't > respond to an appropriate request from an SO or > AC, it would be in breach of its bylaws. The > community can then use the IRP to get a binding > decision. In the unlikely event that the Board > does not comply with the outcome of the IRP > decision, then the designator has the power to remove Board members. > >> > >> In the bylaws we want to make sure that we > don't confuse the role of the designator (add > or remove Board members) with the various roles > of the SO and ACs in the bylaws. The bylaws > are primarily enforced by the IRP, and then the > designator (via removal of Board directors) if > the IRP is not complied with, and then the > courts if the decision of the designator is not > complied with. This is a clear escalation path that applies to all bylaws. > >> > >> Regards, > >> Bruce Tonkin > >> > >> _______________________________________________ > >> Accountability-Cross-Community mailing list > >> > <mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org > >> https://mm.icann.org/mailman/listinfo/accountability-cross-community > > > > > > > > _______________________________________________ > > Accountability-Cross-Community mailing list > > > <mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org > > https://mm.icann.org/mailman/listinfo/accountability-cross-community > > > > > >-- >Jordan Carter >Chief Executive, InternetNZ > ><tel:%2B64-21-442-649>+64-21-442-649 | ><mailto:jordan@internetnz.net.nz>jordan(a)internetnz.net.nz > >Sent on the run, apologies for brevity > > > > >**************************************************************************************************** >This e-mail is sent by a law firm and may >contain information that is privileged or confidential. >If you are not the intended recipient, please >delete the e-mail and any attachments and notify us >immediately. > >**************************************************************************************************** >_______________________________________________ >Accountability-Cross-Community mailing list >Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community

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CCWG - Recommendation 1 - Final version for legal review
by Bernard Turcotte Jan. 26, 2016

Jan. 26, 2016

All, Per the request of the co-chairs we are publishing the final draft version of Annex 1 for legal review. This version has been generated from the conclusion of the second reading document with minor edits by staff. As such you will find attached 2 versions, Word and PDF of the marked up text. Once this legal review is completed (48 hours - 16:00UTC Wednesday), results of the review will be published on this list, a final version will be generated and posted for final CCWG comments. Thank You. Bernard Turcotte ICANN Staff Support for CCWG

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ICANN Board comments on recommendation 9
by Bruce Tonkin Jan. 26, 2016

Jan. 26, 2016

Hello All, Board Comment - Recommendation 9: As noted in its comments on the third draft proposal, the Board supports the incorporation of the AOC reviews into the Bylaws, while noting the importance of maintaining operational standards for reviews outside of the Bylaws. While the Board agrees that operational standards should be in alignment with the provisions of the Bylaws, the Board views operational standards as a more suitable place to address multiple review-related operational items that do not belong in the Bylaws. There are a few specific areas that the Board is flagging in relation to the operational standards - a) The Board is concerned about potential constrains that may limit flexibility and effectiveness in the operational standards and that certain CCWG-Accountability recommendations may not be aligned with best practices or industry standards, including: o Fixed numbers of total review team members, as well as a fixed allocation among SO/ACs, without consideration of specific issues and required expertise for a given review. o Unlimited number of participants, in addition to the appointed review team members, potentially affecting the team's productivity. o Exact trigger points for the commencement of reviews without taking into account the Community bandwidth, or the state of pending implementation activities. b) To accommodate differing needs of reviews, the Board recommends leaving the number of review team members to the selectors of a specific review team, as to prescribing a specific formula for composition. This could leave to the selectors the flexibility, for example, to include more members from a specific SO or AC that is more impacted by a specific review, without hardcoding numbers into the Bylaws that might need to be changed later. c) The Board is concerned with the CCWG-Accountability's recommendations on determinations of how consensus is applied. Imposing Bylaws requirements on allowing participants and observers, or requiring consensus calls are other examples where trying to hardcode specific requirements for reviews now might actually develop reviews that are less efficient, more resource intensive, and detract from the responsibilities of the review teams. The Board notes that the ICANN community would benefit from a review schedule that would take into consideration community bandwidth and ICANN resources in developing a staggered or phased review schedule. These factors should determine what a workable number of concurrent reviews would be and ensure that no more than that number of reviews are scheduled at the same time. Finally, the Board would like to highlight the work that has been underway within ICANN towards improving review effectiveness so that the CCWG and the community may factor this work in the development of operational standards. Work has been underway on the development of Operational Standards since last year, originating from ATRT2 recommendation 11 to improve effectiveness of Reviews together with Board Resolution 2015.07.28.14. In July 2015, after factoring public comments, the Board endorsed the proposed process and operational improvements designed to simplify and increase the effectiveness of Reviews. The Organizational Effectiveness Board Committee is currently working to finalize Policies, Procedures and Guidelines for the Organizational Reviews mandated by the Bylaws. Regards, Bruce Tonkin ICANN Board Liaison to the CCWG

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Draft language narrowing waiver to mitigate liability for board removal
by Rosemary E. Fei Jan. 26, 2016

Jan. 26, 2016

Dear Co-Chairs and CCWG: As promised on the call currently occurring, below you will find a revised description of the waiver to be signed by directors as a pre-condition to service, narrowed to address concerns we (Holly and I) discussed with ICANN-Legal and Jones Day, which were also echoed by participants on today’s call, i.e., that it would not be desirable to protect or encourage defamatory, malicious, or reckless statements about directors during the removal or recall process. As I mentioned on the call, the Board does not support any such waiver. Here’s the current proposal says now, in full: 39. As a condition to being nominated by an AC, an SO, or the Nominating Committee and seated on the Board, each Director-nominee shall be required to sign an irrevocable letter agreement that: · Expresses a contractual commitment that: (1) Acknowledges that the nominating AC or SO, or, for directors appointed by the Nominating Committee, the Empowered Community, has the right to remove the director from service at any time and for any reason through the processes set out in the Bylaws (as described below); (2) Confirms that service as a director does not establish any employment or other relationship to ICANN, the Empowered Community, the ACs, the SOs, or the Nominating Committee, or the agents of any of them, that provides any due process rights related to termination of service as a director other than those specified in the Bylaws; and (3) Waives any and all claims against, and releases from all liability, ICANN, the Empowered Community, the ACs, the SOs, the Nominating Committee, and all of their agents, and any other individuals participating in the removal process, arising from or in connection with the removal process. · Provides a conditional irrevocable resignation from the Board that is automatically effective upon a final determination of removal through the individual director removal process or the full board recall process upon communication of such decision to the Board (as set forth below). In addition, ICANN shall indemnify and advance expenses of defending against any claim against the Empowered Community, the ACs, the SOs, the Nominating Committee, or the agents of any of them for their good faith actions in seeking removal of a director or of the full Board. A narrower version of the waiver portion could read as follows: (3) Waives claims against and releases from liability (a) ICANN and its directors, officers, and employees, and (b) the Empowered Community, the ACs, the SOs, the Nominating Committee, and the Chairs or other individuals serving as executive officers of any of them, arising from statements made in good faith after reasonable due diligence as to factual accuracy, during the course of exercising any right or power, or performing any duty, contemplated by the director removal or recall processes set forth in the Bylaws. Happy to discuss, of course. Rosemary and Holly Rosemary E. Fei Adler & Colvin 235 Montgomery Street, Suite 1220 San Francisco, CA 94104 415/421-7555 (phone) 415/421-0712 (fax) rfei(a)adlercolvin.com www.adlercolvin.com _____________________________ Adler & Colvin is a San Francisco Green Business certified by the City and County of San Francisco. Please consider the environment before you print this email.

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Fwd: GAC views on draft recommendations of the third draft proposal of the CCWG-accountability
by León Felipe Sánchez Ambía Jan. 26, 2016

Jan. 26, 2016

Dear all, I am forwarding the GAC’s views on the draft recommendations of our third draft proposal. Best regards, León > Inicio del mensaje reenviado: > > De: <Thomas.Schneider(a)bakom.admin.ch> > Asunto: GAC views on draft recommendations of the third draft proposal of the CCWG-accountability > Fecha: 25 de enero de 2016, 6:50:14 p.m. GMT-6 > Para: <thomas(a)rickert.net>, <mathieu.weill(a)afnic.fr>, <leonfelipe(a)sanchez.mx> > Cc: <gac(a)icann.org> > > Dear Co-Chairs > > Please find attached the GAC’s views on the draft recommendations of the third draft proposal of the CCWG Accountability. > > Best regards > > Thomas > > > > Thomas Schneider > Chair > ICANN Governmental Advisory Committee (GAC) >

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CCWG - Recommendation 1 - Final draft for CCWG comments
by Bernard Turcotte Jan. 26, 2016

Jan. 26, 2016

Per the request of the co-chairs we are publishing the final draft version of Annex 1 for comments by the CCWG. This version is the version produced by legal counsel with a few additional edits for consistency by staff. You will find attached 2 documents, one with track changes (staff and legal) and the other a clean version. The comment period for the CCWG will run from 18:00 UTC Tuesday 26 January and will close at 18:00 UTC Thursday 28 January - providing the 48 hour comment period. Please make your comments via email to the full CCWG list and use the following subject line to identify your email as being a comment on this: *CCWG - Recommendation 1 - Final draft for CCWG comments* or simply reply to this email. Comments will be compiled in semi-real time by staff in a google sheet at: https://docs.google.com/spreadsheets/d/18O37c6EQXHO3WYQWgGQzCGeSda_CKi6jao5… Thank You. Bernard Turcotte ICANN Staff Support for CCWG

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AGENDA - Call #80
by Alice Jansen Jan. 26, 2016

Jan. 26, 2016

Dear all, In preparation for your call #80<https://community.icann.org/pages/viewpage.action?pageId=58000103> – Tuesday, 26 January 2016 - 19:00-22:00 UTC - (time converter<http://www.timeanddate.com/worldclock/fixedtime.html?msg=CCWG+ACCT+Meeting&…>), see below a proposed agenda: 1. Welcome, roll call, SoI (5 min) 2. Update on Chartering Organizations’ input (20 min) http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0… 3. Update on Board removal liability mitigation (5 min) 4. Rec 6 – Human Rights – Third reading (45 min) * León all circulate a document for discussion & http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0… 5. Rec 9 – AOC reviews - Second reading – see http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0… (15 min) Break (10 min) 6. Rec 5 – Mission Statement - Fourth reading (45 min) See http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0… & http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0… * Root servers and numbers language * Contract enforcement * Grandfathering 7. Timeline & next steps – see http://mm.icann.org/pipermail/accountability-cross-community/attachments/20… (15 min) 8. A.O.B (15 min) Link to Adobe Connect: https://icann.adobeconnect.com/accountability/ Thanks Best regards Alice

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FW: Lawyer's High Level Review re Proposal to Refer to 2004 ASO MOU in Mission Statement (Annex 5, Third Proposal)
by Rosemary E. Fei Jan. 26, 2016

Jan. 26, 2016

Dear CCWG ACCT Co-Chairs, Members, Participants and ICANN Staff: In response to our high-level concern presented in an email from Holly Gregory and me on January 19, 2016 (included below), we received an email from Izumi Okutani on behalf of the ASO proposing an alternative intended to address our concern (also included below). We thank the ASO and Izumi for the thoughtful response. This email responds to the ASO's proposal; please treat this as an addendum to our high-level concern. The ASO has proposed the following alternative language for the description of ICANN's mission with respect to the numbers function: Coordinates the allocation and assignment at the top-most level of Internet Protocol ("IP") and Autonomous System ("AS") numbers. Further, it ratifies, at the global level, policies related to these IP and AS numbers and developed according to the ASO-MoU. We think this approach is helpful, and adequately solves the problem of referring to the MOU to define ICANN's mission. However, we don't understand how ICANN's mission can be to "ratify" something, so we would change "ratifes" to "implements". To ratify implies the power to NOT ratify, and we do not understand that to be what ASO has proposed or the CCWG has agreed to. We are comfortable with ICANN's mission including implementation of policies developed under the MOU, understanding that those are narrow, technical policies within the ASO's expertise, which will be developed under a process the community has found appropriate to the need. We think the reference to the MOU needs to be more specific. Reflecting these comments, our high-level concern will be fully addressed if the ASO proposal is modified as follows and adopted by the CCWG: Coordinates the allocation and assignment at the top-most level of Internet Protocol ("IP") and Autonomous System ("AS") numbers. Further, it implements, at the global level, policies related to these IP and AS numbers and developed pursuant to the Memorandum of Understanding between ICANN and the ASO dated [most recent version date], as it may be amended from time to time in accordance with its terms. Rosemary and Holly Rosemary E. Fei Adler & Colvin 235 Montgomery Street, Suite 1220 San Francisco, CA 94104 415/421-7555 (phone) 415/421-0712 (fax) rfei(a)adlercolvin.com www.adlercolvin.com _____________________________ Adler & Colvin is a San Francisco Green Business certified by the City and County of San Francisco. Please consider the environment before you print this email. ________________________________ From: Izumi Okutani Sent: Tuesday, January 19, 2016 12:59:10 AM To: Gregory, Holly; 'Mathieu Weill'; thomas(a)rickert.net<mailto:thomas@rickert.net>; León Felipe Sánchez Ambía; accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>; acct-staff(a)icann.org<mailto:acct-staff@icann.org> Cc: Sidley ICANN CCWG; Greeley, Amy E.; Grapsas, Rebecca; ICANN(a)adlercolvin.com<mailto:ICANN@adlercolvin.com> Subject: Re: [CCWG-ACCT] Lawyer's High Level Review re Proposal to Refer to 2004 ASO MOU in Mission Statement (Annex 5, Third Proposal) Dear Holly and all, Thank you for this analysis. I note the strong concern here is that with reference to the ASO about the Mission, the ICANN Mission on the number resources can be changed, with agreement between ICANN and RIRs, without going through the standard process of changes in the Bylaws. We had further discussions in the ASO and to address this concern, we would like to suggest the alternative text below: "Coordinates the allocation and assignment at the top-most level of Internet Protocol ("IP") and Autonomous System ("AS") numbers. Further, it ratifies, at the global level, policies related to these IP and AS numbers and developed according to the ASO-MoU." - While it still appears to reference the ASO MoU, the important difference from the previous text is that it is *not referenced to describe ICANN's Mission*. - What it basically says is that ICANN's Mission on the number resources is to ratify global policies according to the ASO MoU. i.e., If there are changes ICANN's Mission in its relation to ratification of global policies, expansion of its Mission, or deleting this part of the Mission, it will need to go through the standard process of the changes in the Bylaws. It will not change, expand or remove ICANN's Mission without the agreed process proposed in the CCWG, just like any other parts of the Mission Statement. - Given the reference to the ASO MoU on the alternative text is limited to the ratification of global policies, even if the MoU can be changed based on agreement between ICANN and RIRs (as it is today), the scope of change is limited to how ICANN ratifies the global policies on the number resources. - Until today, the ratification of global number resources policies has been based on agreement between ICANN and RIRs per what is described in the ASO MoU, which does not affect the wider ICANN communities outside the ASO. Izumi On 2016/01/19 5:27, Gregory, Holly wrote: > Dear CCWG ACCT Co-Chairs, Members, Participants and ICANN Staff, > > We are writing to raise with you a high-level concern regarding the proposal to reference the 2004 Address Supporting Organization MOU (the "MOU") in ICANN's Mission Statement (Bylaws Article I, Section 1), which was discussed on CCWG-ACCT Call #77 (January 14). > > In defining ICANN's role in coordinating allocation and assignment at the top-most level of IP and AS numbers, Annex 05 from the Third Proposal provided as follows: "ICANN's Mission is described in the ASO MoU between ICANN and RIRs." > > We recommend against trying to further define ICANN's Mission through cross-reference to the MOU in the Bylaws and suggest that any specific language that you deem of critical import to defining ICANN's Mission be actually incorporated. (We could not find a clear statement of the ICANN Mission in the MOU.) > As a general matter, referencing all or part of an external agreement in bylaws presents a number of problems. For example: > > > · The bylaws may require a different process, parties, and threshold for amendment than the referenced agreement, and it is unclear legally which rules apply. This problem is certainly present here. Although the Mission will be a fundamental bylaw, the parties to the MOU could amend it on their own, circumventing the fundamental bylaw amendment process entirely. Alternatively, perhaps the MOU's amendment provisions would be superceded by the fundamental bylaw amendment process. At a minimum, if the reference remains despite our advice, this issue should be addressed explicitly. > > > > · Referencing an outside agreement in bylaws may have the legal effect of incorporating it into the bylaws, putting all its terms on an equal footing with the bylaws, which can create problems if its provisions conflict with the bylaws in any way. This issue has a greater chance of arising where an entire agreement is incorporated by reference, and is clearly a problem here. For example, ICANN's Bylaws are ultimately governed by California law, but the MOU provides that it will be governed by International Chamber of Commerce rules in Bermuda. Again, if the reference remains despite our advice, the CCWG should decide which document governs in case of conflict (either generally or on a topic-by-topic basis). > > · Although we generally recommend against it, clients have insisted on incorporating an entire existing agreement in their governing documents, essentially freezing the agreement as incorporated. It was suggested on the CCWG call that the Bylaws could reference the version of the MOU as of a specific date, excluding from the Bylaws future amendments to the MOU unless the community amended the Bylaws to update the reference in the Mission. While this strategy partially solves one problem, it leads to others. Assuming that the MOU incorporated in the Bylaws continues to evolve over time outside of the Bylaws, there will be two versions of the MOU -- the one in the Bylaws, and the one that documents the current understandings between the ASO and ICANN. At a minimum, this would be confusing; in a worst-case scenario, it could undermine the enforceability of the post-reference MOU. > > > · Any outside agreement to be referenced in bylaws must be carefully reviewed to assess and address the sorts of consequences noted above. We have briefly reviewed a version of the MOU, and note that the MOU itself incorporates other documents by reference, including the earlier 2003 version of the ICANN Bylaws, creating a circularity in terms of providing legal advice on this provision in the future. > > While we originally thought it might be possible to work around these problems by inserting text from the MOU into the Bylaws describing this aspect of ICANN's Mission, after our brief review of the MOU, it is not clear to us where or how it describes ICANN's mission in any narrative text. As we read it the MOU sets out processes and mechanisms for developing policies but does not itself describe substantive limits on ICANN or purport to define ICANN's Mission. > > Bylaws may of course include a process for developing a scope of corporate activities within the bounds of a larger mission, and the mission can be updated as appropriate to reflect developments that come out of this process, but the process itself cannot logically become part of the mission. > > We hope further CCWG discussion in light of our concern, regarding the goal that the ASO and the community seek by referencing the MOU in the Mission Statement, may provide a way forward without referencing the MOU itself in the Bylaws. > > Holly and Rosemary > > > HOLLY J. GREGORY > Partner and Co-Chair > Global Corporate Governance & Executive Compensation Practice > > Sidley Austin LLP > +1 212 839 5853 > holly.gregory(a)sidley.com<mailto:holly.gregory@sidley.com<mailto:holly.gregory@sidley.com%3cmailto:holly.gregory@sidley.com>> > > > > > > **************************************************************************************************** > This e-mail is sent by a law firm and may contain information that is privileged or confidential. > If you are not the intended recipient, please delete the e-mail and any attachments and notify us > immediately. > > **************************************************************************************************** > > > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community(a)icann.org<mailto:Accountability-Cross-Community@icann.org> > https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_l…> >

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Human Rights draft text for third reading
by León Felipe Sánchez Ambía Jan. 26, 2016

Jan. 26, 2016

Dear all, In anticipation for our call tomorrow I am sending you the proposed language for the Human Rights bylaw. This text tries to address all the concerns that were raised in our recent calls and on the mailing list. Please take a momento to review the proposed text and provide your feedback at your earliest convenience. Best regards, León

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