April 2016 - Accountability-Cross-Community

"community" in draft bylaws
by Andrew Sullivan April 11, 2016

April 11, 2016

Hi, This is my survey of places in the draft bylaws where "the community" is supposed to do something. BACKGROUND (if you just want the list, scroll forward) I looked (using ordinary text search) for the word "community", and then read the passage. This is a little broader than what I did the other day, which was just the "global Internet community". But once I thought about the problem more clearly, it was obvious that we'd need to cope with this problem generally. (In case you care, there are 572 occurrences of that magic word in the draft. Naturally, most of them are to do with IRP and other such processes.) I've included here only things where I think there is or might be the suggestion that some community is supposed to do something and where the context doesn't make it clear; as a result, the wider search didn't really turn anything up that was new compared to what I noticed last week. In each case below, I suggest an alternative approach that I think is consistent with the CWG and CCWG reports, but I'm not wedded to any of those suggestions and if people want to take another approach I'm happy to get out of the way. My only goal is to ensure that, where action is required, there won't be some future battle to decide who is entitled to be included. These are in the order in which I find them in the document. THE LIST 1.2(a)(vi) "Remain accountable to the Internet community through mechanisms defined" I do NOT think this is an example, and I included it for contrast. While it says "accountable to the…community", the real effect of the sentence is to say how that happens (through the mechanisms in the bylaws). I hope that makes plain the distinction I'm making. 4.3(e)(i) "CEPs shall…be developed with community involvement" I expect "ICANN community" would solve this. 4.3(j)(ii) [The whole section] How about this: "ICANN shall initate a process to establish the Standing Panel to ensure the availability of a number of IRP panelists that is sufficient to allow for the timely resolution of Disputes consistent with the Purposes of the IRP, and shall seek input about the process and the panelists using its prevailing public comment mechanism. The process shall include a call by ICANN for expressions of interest, and shall include public comment periods about the nominees to the Standing Panel and the designation of the Chair of the Standing Panel. Nominations for panel members shall be open to any qualified person (including those not otherwise associated with ICANN)." The idea here is to make clear that "the global Internet community" isn't the ICANN ACs and SOs; I don't think anyone conflates them, but it'll be too easy to set up the procedures using those mechanisms unless we're clear. 4.3(m)(ii) [whole section] I suggest, "ICANN shall initiate a tender process for an organization to serve as the IRP Provider to provide administrative support for the Standing Panel and IRP Panels; the selection shall be subject to ICANN's prevailing public comment process." 4.3(n)(i) "Members of the global Internet community shall develop processes for the IRP that are governed by clearly understood and pre-published rules applicable to all parties (“Rules of Procedure”)." I'm quite worried about this one, because I haven't a clue how we'd establish "membership" in the global Internet community. If ten random people come up with one process and ten other people come up with another inconsistent process, which one is the right set of members? And so on. Perhaps, "The ICANN community shall develop processes for the IRP using some prevailing ICANN community mechanism (such as a Policy Development Process [xref] or Cross-community Working Group [xref] or any other such mechanism). The processes must comprise clearly defined rules that are published in advance of any IRP and that are available to all parties (“Rules of Procedure”). Any proposed Rules of Procedure shall be subject to the prevailing ICANN public comment procedures prior to adoption." 16.1 "as well as other services as determined by ICANN in coordination with the global internet community." I suggest, "…as well as other services as determined by ICANN in coordination with other existing or potential direct consumers of IANA functions." 19.2(b)(ii) "Solicit input from ICANN and the global internet community on requirements to plan and participate in the IANA Naming Function RFP process." It isn't actually clear to me how _either_ of these is to be achieved because I'm not sure I understand it. But perhaps, "Solicit input from ICANN staff, and from the community (through the prevailing ICANN public comment process) on requirements to plan …"? As near as I can tell, every other use of "community" in the document is either a name of some process, or is obviously referring to some specific previously-named community, or is just harmless (such as needing to do things in service of "the global Internet community", which seems to me to be like saying "in service of anyone who's ever used or might someday use the Internet". I suppose there'd be an argument that those uses ought to be clarified too, but in my reading they're all mostly aspirational rather than actionable. Of course, to my great regret, I'm not a lawyer; so I could be wrong about those cases). I hope this is helpful to the CCWG and the drafting lawyers. Thanks to everyone for all the hard work. Best regards, A -- Andrew Sullivan ajs(a)anvilwalrusden.com

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Notes-Recordings-Transcript link for CCWG Accountability "Review of Draft Bylaws" Meeting - 11 April 2016
by MSSI Secretariat April 11, 2016

April 11, 2016

Hello all, The notes, recordings and transcripts for CCWG Accountability "Review of Draft Bylaws" Meeting - 11 April 2016 will be available here: https://community.icann.org/x/FDuAAw A copy of the notes may be found below. Thank you. With kind regards, Brenda Brewer MSSI Projects & Operations Assistant ICANN - Internet Corporation for Assigned Names and Numbers Notes These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript. 1. Opening Remarks (LS) * These sessions are not for reopening any issues. * KArasteh - (from chat) There was discussion regarding addition of a qualifier to a text relating IANA Function. Since such addition would have made the legal text weak and subject to a judgement, it was said that such qualifier was not necessary. One participant from the North America supported by other participants from that part of world surprisingly stated that since the ICANN Bylaws is US document thus must be written according to the US style. * KArasteh - against this position * GShattan - ICANN is a California corporation and its Bylaws will be interpreted in US courts and as such should be drafted for this. * LS - KA can pursue this on the mailing list if necessary. 2. Second reading of question responses agreed on previous call (TR) * List of approved questions circulated Friday 8 April is approved in second reading with no questions. 3. Resolution of remaining questions (TR) * Presentation via slide deck listing three categories: * Issues for discussion * "uncontested" comments * Questions from our group * Q1 and AQ13 - Root Zone - Approved as is in slide. * Q2 - Grandfathering - Agreed as is in slide. * Q6 - Removing colleagues by the Board - Agreed as presented. * Q29 and AQ22 - Removing NomCom Board Members - This point is moot anyways. Lawyers should not make any reference to the carve out when implementing this recommendation. BSchaefer disagrees but if we are going to be strict it should also apply to the carve out - KArasteh ref to carve out and his email. Accepted as is. * Q33 and AQ5 - Mediation and Community IRP - BBurr and lawyers will discuss. * AQ1 Selection of IRP panel - Agreed as presented in slides. * AQ2 - IRP Rules and Procedures - Rules of procedure changes can be discussed and proposed by the panel but must be approved by the community * AQ8 - PICS - Lawyers will reply to Jorge on the list * AQ10,15,17,18,20,21 - RR/IRP - * BBurr HR cannot be brought to IRP before the FOI is complete for HR. DMcAuley notes his questions was not presented properly. This should really debated in WS2. * disputes vs resources for protocal parameters - Go with Andrew's recommendation "disputes relating to protocal parameters" * definition of staff ambiguous - Rosemary has drafted some language addressing this in another section and could be imported here. * Cost shifting - Agree with recommendation in question. * Shall Decisions be suspended pending Resolution? - BBurr should apply to both and we will ask that the lawyers make it clear it applies to both. no arguments against. * 4.3(x)(ii)(B) Can anyone or just the EC start a court action to enforce an IRP decision if the Board rejects - should be made clear? - BBurr Any party to an action can start an action to enforce. The IRP rules will confirm this. no arguments against. * 4.3(x)(iii) Lawyers to refine language re interplay of arbitration in Ry or Rr agreements - BBurr drafting glitch registry and registrars have binding arbitration in their contracts and these should be used for contract disputes. It was not intended that registry and registgrars can use the IRP. no arguments against. * Additional question from TBenJemaa - BBurr the 6 month language will be in the Bylaws. What happens if the 6 month is not respected this will be addressed in the IRP implementation. The Bylaws should leave the door open if cases cannot be resolved in the 6 month period. Lawyers will implement this. * AQ11 - Carve Out - TRickert have asked the lawyers to revise the language in the Bylaws to more clearly reflect the recommendations. The Carve out must be implemented in the Bylaws according to the CCWG recommendations. * AQ12 - Mission & Regulation - BBurr has asked lawyers to go back and consider some of the alternatives proposed by herself. MHutty happy with results so far and waiting for what lawyers will come up with next. BBurr there were serious anti-trust concerns vs Regulation. * AQ16 - defn of Global Internet Community? - ASullivan suggest defining WHO is supposed to take the decision vs the GIC. In public counsultation type processes where anyone can participate should remain GIC. KArasteh same as the global multistakeholder community? MHutty agree with KA. * AQ19 IANA Bugeet and IETF VS IAB. We should pick the IAB unless instructed otherwise. * AQ23,24 - section 25.2 Fundamental Bylaw needed for compostion of SO/ACs? This was not foreseen in our recommendations. Copy and paste glitch at the end of 25.2 (e) and (f) should be fixed. 4. Next Steps * We will need a call tomorrow at noon UTC where we should be able to complete answering questions for the legal teams. 5. ICANN 56 - Helsinki * Request was presented to Board Finance Committee last Tuesday. Response received. * Meeting will take place on Sunday 26 June * Members who have existing funding through ICANN for ICANN56 will receive an extra hotel day. Others are recommended to attend remotely or at their own expense. * Sebastien Bachollet: request that core leadership team receive support to attend. * External legal counsel will not be attending or requested for that meeting since the goal is WS2 kick-off. 6. AOB * None -- close of call Action Items -none

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Re: [CCWG-ACCT] CCWG - Proposed Responses to questions on Draft Bylaws
by Julia Katja Wolman April 11, 2016

April 11, 2016

Dear Jorge, In line with your comments, we believe it is important that we have clarity on the issues related to the GAC “carve-out”. The Bylaws text as a whole should reflect the CCWG Proposal and it is important to ensure that there is no direct/indirect extension of the “carve-out” provision in the relevant section of the CCWG Supplemental Report. A simple and clean Bylaws text as possible is important from our point of view and referring to the carve-out in different sections of the Bylaw text has certainly not made it less complicated. Best regards, Julia Julia Katja Wolman DANISH BUSINESS AUTHORITY Dahlerups Pakhus Langelinie Allé 17 DK-2100 København Ø Telephone: +45 3529 1000 Direct: +45 35291308 E-mail: jukacz(a)erst.dk www.erhvervsstyrelsen.dk MINISTRY FOR BUSINESS AND GROWTH P Please consider the environment before printing this email. Fra: accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] På vegne af Mark Carvell Sendt: 8. april 2016 13:04 Til: Kavouss Arasteh Cc: <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> Emne: Re: [CCWG-ACCT] CCWG - Proposed Responses to questions on Draft Bylaws Dear Jorge I think this serves to underline that in the new era of transversal working with the GNSO in particular, the so-called "carve-out" from a community escalation decision in instances where the Board decision would be based solely on GAC advice, would be an extremely rare occurrence. Plus of course the GAC would be advising the community throughout such a decision stage: as has been made clear in the CCWG discussions several times, while not being able to exercise a vote due to the carve-out, governments would not be excluded from this process. Kind regards Mark Mark Carvell Global Internet Governance Policy Department for Culture, Media and Sport mark.carvell(a)culture.gov.uk<mailto:mark.carvell@culture.gov.uk> tel +44 (0) 20 7211 6062 On 8 April 2016 at 08:54, Kavouss Arasteh <kavouss.arasteh(a)gmail.com<mailto:kavouss.arasteh@gmail.com>> wrote: Jorge+1 Kavousd Sent from my iPhone On 8 Apr 2016, at 08:52, <Jorge.Cancio(a)bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> <Jorge.Cancio(a)bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> wrote: Dear all Just to reiterate what some of us said in the chat yesterday: - GAC Advice is almost always linked to a community process, and the tendency (and wish) is to increase this - GAC Advice is actually quite frequent (at least three times a year) - There is no basis in the CCWG report for isolating GAC Advice from other inputs from the community, and it would be counter to the multistakeholder fashion we work and/or we are trying to work within ICANN Hope this helps Regards Jorge Von: accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Schaefer, Brett Gesendet: Donnerstag, 7. April 2016 16:31 An: Andrew Sullivan <ajs(a)anvilwalrusden.com<mailto:ajs@anvilwalrusden.com>>; accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org> Betreff: Re: [CCWG-ACCT] CCWG - Proposed Responses to questions on Draft Bylaws Thanks Andrew, these are interesting comments. I agree on 6 and raised similar concerns in the chat Tuesday. On 25, I agree that the problem is lack of clarity. It needs to be clear when a decision is based on GAC consensus or not. Also, there is the danger of wrapping a decision based GAC consensus advice into a larger group of unrelated matters. Intentionally or not, it could force the EC into the undesirable position of (1) not opposing a decision based on GAC consensus advice it does not like or (2) opposing it knowing that the unrelated matters that have broad support will also be blocked with it. This is why I suggested echoing Article 25.3 to avoid this dilemma. Article 25.3 states: • The Board shall not combine an amendment of these Bylaws that was the result of a policy development process of a Supporting Organization (a “PDP Amendment”) with any other amendment. The Board shall indicate in the applicable Board Notice whether such amendment is a PDP Amendment. Here is the text that I suggested: • The Board shall not combine a decision based on or consistent with consensus GAC advice with any other decision. The Board shall indicate in the applicable Board Notice whether such a decision is based on or is consistent with consensus GAC advice. If people have helpful edits, go at it. But I think this would separate – in a helpful way – Board decisions based on GAC consensus advice. I don’t think it would be onerous. Consensus GAC decisions are not all that frequent and, under the amended bylaws, must be indicated as such when sent to the Board. If the GAC advice is supported elsewhere in the community this requirement should not be problematic because broadly supported advice would not pass thresholds for EC escalation. But it would allow the EC to consider and, if desired, address decisions based on GAC consensus advice in a targeted manner. As mentioned in the chat, this in no way is an extension of the GAC carve-out. It would just help clarify when it might apply. Best, Brett ________________________________ Brett Schaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097<tel:202-608-6097> heritage.org<http://heritage.org/> 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 Andrew Sullivan Sent: Thursday, April 07, 2016 9:48 AM To: accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] CCWG - Proposed Responses to questions on Draft Bylaws Dear colleagues, Many apologies for missing calls this week, but as I noted in Marrakesh this week is the IETF meeting and I have approximately no time. Anyway, I have some remarks. I'm sorry these are lengthy. Q1 On the Mission, q1, I think it is extremely unfortunate to agree to remove the restriction of "in the root zone". I reject unequivocally the argument, "It is not true that ICANN coordinates assignment ONLY in the root zone, as such term is currently understood. ICANN’s gTLD registry and registrar agreements and policies deal substantially and primarily with issues relating to assignment of names at the second (and in some cases lower) levels of the DNS." ICANN's gTLD registry and registrar agreements an policies deal susbtantially and primarily with how _those registries and registrars_ coordinate assignment in zones outside the root zone. That is, ICANN's agreements are a meta-requirement on how other people do co-ordination in the DNS, and do not actualy perform the co-ordination I know that this seems like a fine distinction. But it's important to keep it in mind because the language that have been in the bylaws historically, and that the CCWG has agreed to restore, is the very basis on which various people around the Internet mistake ICANN for the Internet Police. By removing the restriction to the root zone, we are once again freeing ICANN to assert control down the DNS -- a control that is very much inconsistent with the distributed authority design of the DNS. Q3 It might be worth observing also that, since the requester is the person who asked for the transcripts and recordings, presumably the requester could be asked about certain redactions due to the issues outlined. Q6 The proposal for the community just to endorse whatever the board decides here strikes me as potentially risky. Supposed the community replaces a recalled board member with a new one that is less accommodating of a prevailing majority of the Board. The Board would be able to remove that new director with a 75% majority. If the EC does not have the ability to reject the Board's decision to remove, then there could be a procedural deadlock that could only be ameliorated by a complete replacement of the Board. That seems undesirable. Q17 I believe the requested addition is overspecification. It will simply yield disputes about whether a given recommendation is limited in the relevant way. Q25 The document says Initially, “solely” was added to tie the Petition Notice to the GAC Consensus Board Resolution. For example, the ICANN Budget is an amalgamation of many different inputs. If a particular expenditure is tangentially related to GAC advice, then the GAC should not be removed from voting on that petition. I don't understand this argument. There are two possibilities: either the expenditure is solely related to GAC advice (in which case, whether it's "tangential" is irrelevant) or it is not. If it is not, then the GAC exclusion is not entailed. If it is solely related to GAC advice, then I don't get the claim above that the GAC should not be excluded -- that's the whole point of the "carve out". I hope these remarks are useful. Please see also the remarks that I sent in collaboration with my colleagues on the IAB. Best regards, A On Wed, Apr 06, 2016 at 06:30:14PM -0400, Bernard Turcotte wrote: > All, > > Co-chairs and rapporteurs have reviewed and proposed answers to all > questions some based on the results of the Tuesday April 5th meeting of the > CCWG-Accountability. > > These are attached in preparation for the Thursday April 7th meeting of the > CCWG-Accountability on this topic. > > The CCWG-Accountability Co-chairs Mathieu, Thomas and Leon > _______________________________________________ > 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 -- Andrew Sullivan ajs(a)anvilwalrusden.com<mailto:ajs@anvilwalrusden.com> _______________________________________________ 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 _______________________________________________ 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 _______________________________________________ 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

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Presentation for today's call
by Grace Abuhamad April 11, 2016

April 11, 2016

This will be displayed on the screen shortly… surprise! :) -- Grace Abuhamad Manager, Public Policy ICANN | Internet Corporation for Assigned Names and Numbers 801 17th Street NW, Suite 400 | Washington, DC 20006 Direct: +1 202 249 7545 | Mobile: +1 310 200 7638 Interested in the IANA Stewardship Transition? LEARN MORE. STAY UPDATED. FOLLOW. ENGAGE.

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CCWG - Proposed Responses to questions on Draft Bylaws
by Bernard Turcotte April 11, 2016

April 11, 2016

All, Co-chairs and rapporteurs have reviewed and proposed answers to all questions some based on the results of the Tuesday April 5th meeting of the CCWG-Accountability. These are attached in preparation for the Thursday April 7th meeting of the CCWG-Accountability on this topic. The CCWG-Accountability Co-chairs Mathieu, Thomas and Leon

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Re: [CCWG-ACCT] [CWG-Stewardship] [bylaws-coord] DRAFT NEW ICANN BYLAWS - 2 April 2016 version - SCWG
by Christopher Wilkinson April 11, 2016

April 11, 2016

Well, Chuck, where I come out on this: 1. I agree that it should be harder. 2. The proposed voting structure of SCWG is so far biassed towards GNSO and the Registries, that the 'small group' could actually represent all the governments (one vote) and all the users (one vote). If the composition of the SCWG was balanced 50:50 then one might consider a simple majority of all the members, 50%+1. But as it stands in the proposal, well, NO. Best regards CW On 05 Apr 2016, at 21:32, "Gomes, Chuck" <cgomes(a)verisign.com> wrote: > I think there are two ways of looking at this: > 1. Requiring consensus makes it harder to do separation. As Christopher says, that is a big step so maybe it should be harder. That is in essence why I opposed only requiring a simple majority of those present in a meeting instead of a simple majority of all members whether they are in attendance or not. > 2. Requiring consensus also makes it easier for a small group to essentially veto a separation recommendation. If a small group of the members oppose a separation while a strong majority favor it, simply by preventing consensus, separation could be stopped. > > I don’t know where I come out on this but I definitely we should weigh both points before deciding. > > Chuck > > From: cwg-stewardship-bounces(a)icann.org [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Christopher Wilkinson > Sent: Tuesday, April 05, 2016 2:41 PM > To: accountability-cross-community(a)icann.org Accountability > Cc: cwg-stewardship(a)icann.org IANA > Subject: [CWG-Stewardship] Fwd: [CCWG-ACCT] [bylaws-coord] DRAFT NEW ICANN BYLAWS - 2 April 2016 version - SCWG > Importance: High > > Good evening: > > With reference to the Sidley draft of April 2, 2016 ("Questions and Clarifications for Bylaws Coordination Group"), I wish to make a specific comment relating to Question 22 referring to Section 19 of the draft Bylaws concerning the SCWG ("Separation Cross Community Working Group".) > > Section 19.5 addresses the Composition of the SCWG and the voting rights of its members and liaisons. > > Section 19.7 (a) addresses the SCWG decision-making procedure. > > During the CWG conference call on April 4, Sidley raised the issue of how to define the majority of the SCWG (Section 19.7(a)) in the absence of a consensus. > The bar of 50+1% was proposed. (Question 22.) > > I submit that this bar is far too low, and that the general principle of consensus must be maintained. > > Section 19.5 of the draft Bylaws provides for SCWG to be composed of 13 voting members, 5 non voting liaisons and unlimited other participants. Among the voting members, GNSO and the ccTLDs would hold 9 votes; more than a majority of 7. > > However, eventual separation of the IANA/PTI function from ICANN would have far reaching implications for many stakeholders which go well beyond the specific interests of DNS Registries and Registrars. > > It would not be appropriate for the representatives of the Registries and Registrars to be able to determine a separation decision, acting alone, absent consensus in the SCWG. If the proposed composition and voting rights in an SCWG are maintained, it is absolutely essential that the SCWG act by consensus and not by a majority vote. > > Regards > > Christopher Wilkinson > > > Begin forwarded message: > > > From: Mathieu Weill <mathieu.weill(a)afnic.fr> > Subject: [CCWG-ACCT] Fwd: [bylaws-coord] DRAFT NEW ICANN BYLAWS - 2 April 2016 version > Date: 3 Apr 2016 14:16:21 GMT+02:00 > To: CCWG Accountability <accountability-cross-community(a)icann.org> > > Dear colleagues, > > In anticipation of our calls this week, please find below a note from the lawyers group, the draft bylaws as well as an issue list. > > It is important to read the lawyers notes as they quite efficiently describe the context and status of the work. Please review them for any process related question. > > The purpose of our calls this week will be to address the issue list questions (questions 1-7 & 25-34 are for the CCWG, the others for CWG). > > Should any other issue be added to the list based on your respective reviews, please raise your questions on the list for transparency. > > Best regards, > > Mathieu > --------------- > Depuis mon mobile, d�sol� pour le style > > D�but du message transf�r� : > > Exp�diteur: John Jeffrey via bylaws-coord <bylaws-coord(a)icann.org> > Date: 3 avril 2016 13:16:28 UTC+2 > Destinataire: bylaws-coord(a)icann.org > Cc: "Flanagan, Sharon" <sflanagan(a)sidley.com>, "Cc: Zagorin, Janet S." <jzagorin(a)sidley.com>, "Hilton, Tyler" <thilton(a)sidley.com>, ICANN-Adler <ICANN(a)adlercolvin.com>, "Hofheimer, Joshua T." <jhofheimer(a)sidley.com>, "Mohan, Vivek" <vivek.mohan(a)sidley.com>, "Clark, Michael A." <mclark(a)sidley.com>, "Boucher, Rick" <rboucher(a)sidley.com>, Sidley ICANN CCWG <sidleyicannccwg(a)sidley.com>, "Kerry, Cameron" <ckerry(a)sidley.com>, "McNicholas, Edward R." <emcnicholas(a)sidley.com>, Daniel Halloran <daniel.halloran(a)icann.org>, Amy Stathos <amy.stathos(a)icann.org>, "Boelter, Jessica C.K." <jboelter(a)sidley.com>, "Fuller, Miles" <wfuller(a)sidley.com>, "Tam, Tennie H." <tennie.tam(a)sidley.com> > Objet: [bylaws-coord] DRAFT NEW ICANN BYLAWS - 2 April 2016 version > R�pondre �: John Jeffrey <john.jeffrey(a)icann.org> > > Dear Bylaws Coordination Group, > > Please find attached a document � DRAFT NEW ICANN BYLAWS (vers. 2Apr) (�DRAFT BYLAWS�) for your review and discussion. As you will recall the last full draft was provided to you on 18 March, with the promise to provide another full turn of the DRAFT BYLAWS for your review today on 2 April. The DRAFT BYLAWS attached is the current working draft among the legal drafting group. There is also an Issue List attached, which are a set of additional questions and clarifications requested from the Bylaws Coordination Group. > > We ask that you share the attachments with your CCWG, ICG and CWG colleagues who will be reviewing this during this critical work week > > Recent Work � During the past two weeks the legal drafting group, made up of Sidley�s team, Adler�s team and ICANN's Legal team reviewed and worked through mark ups and redrafts of the various sections of new ICANN Bylaws. Also, we have held four separate meetings with the Bylaws Coordination Group during this two-week period asking questions and incorporating that feedback into the new draft. There is likely to be the need for some additional discussions as we work toward a public comment version of the new ICANN bylaws. > > More Work to Do � There is still work to do on the DRAFT BYLAWS, in identifying and working through any remaining provisions in the draft that are not clear, finding any remaining open issues, improving the provisions, and polishing the draft before publication for public comment. The legal teams remain engaged in review mode and are available for questions and comments during this period. > > Legal Teams have not yet �certified� � Since a) the Bylaws Coordination Group, CWG and CCWG have not yet reviewed and reacted to these DRAFT BYLAWS, b) there are still remaining open issues, and c) there is still review and polishing to be done by the legal teams � the legal teams have not indicated yet that the current DRAFT BYLAWS fully meets the recommendations within the Proposals. > > As we have indicated above there is still work to be done, including receiving the feedback from those reviewing these DRAFT BYLAWS this week before the legal teams will be in a position to certify the posting version for Public Comment > > Next Steps � > > 1) Now until 13 April � members of CCWG, CWG, Bylaws Coordination Group, Board and ICG to complete review of these DRAFT BYLAWS and provide feedback to legal teams; > > 2) Now until 18 April, (with particular focus during week of 13-18 April) � legal teams to update DRAFT BYLAWS working in coordination with the Bylaws Drafting Group; > > 3) 20 April � posting date for public comment period for new proposed bylaws � with legal teams supporting that the new proposed bylaws meets the proposal recommendations. > > �� > > As before, we look forward to working with all of you in the coming days, to get ICANN�s Bylaws in the best form possible to effectuate these important changes. > > We hope these views of the documents are useful and that you receive them in the spirit that they are offered� to help all of us to be able to collaborate and work through these Bylaws changes in the most effective way possible � to enable the creation of a new and stronger, community empowered ICANN. > > John Jeffrey, Holly Gregory, and Rosemary Fei > > _____________________ > ____________________ > > > > > > _______________________________________________ > bylaws-coord mailing list > bylaws-coord(a)icann.org > https://mm.icann.org/mailman/listinfo/bylaws-coord > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community(a)icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community >

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Review of Articles 1-10 of the Draft Bylaws
by Kavouss Arasteh April 11, 2016

April 11, 2016

Dear Lawyers, Dear Co-Chairs, I have studies the above and wish to raise following questions 1. In the redline texts I found many colours *Black* Blue Red Green *Black * I understand the Black colour is the initial texts of the current Bylaws Blue I understand the Blue colour IS USED FOR RENUMBERING OF aRTICLES Red I understand Red colour is used when new texts are added but where these texts Are they come from the Supplemental Proposal ? My verification reveals that not all texts coming from Supplemental Proposal as there are red texts which have been added by the team. My question is how one could distinguish those texts directly emanated from Supplemental Proposal from those added by the team Green from where the green texts come from I have also seen some new terms, words that were not discussed any where Who has added these terms ? I have not been able to highlight all these in a more distinctable way but I have highlighted then with bigger font 18-20 Please kindly review that and reply to my questions Regards Kavouss

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Fwd: [bylaws-coord] Corrected Bylaws document - 2 April 2016 version, as corrected on 7 April 2016
by Kavouss Arasteh April 9, 2016

April 9, 2016

Dear All, I have made some analysis of Annex D to the draft Bylaws and found a serious misunderstanding on. how EC powers should be translated / converted into legal terms/provision for inclusion in the Bylaws My comments are attached Regards Kavouss ---------- Forwarded message ---------- From: Kavouss Arasteh <kavouss.arasteh(a)gmail.com> Date: 2016-04-08 8:32 GMT+02:00 Subject: Re: [bylaws-coord] Corrected Bylaws document - 2 April 2016 version, as corrected on 7 April 2016 To: Samantha Eisner <Samantha.Eisner(a)icann.org>, Holly Gregory < holly.gregory(a)sidley.com>, "Rosemary E. Fei" <rfei(a)adlercolvin.com>, Mathieu Weill <Mathieu.Weill(a)afnic.fr>, Thomas Rickert <thomas(a)rickert.net>, León Felipe Sánchez Ambía <leonfelipe(a)sanchez.mx>, "< Thomas.Schneider(a)bakom.admin.ch>" <Thomas.Schneider(a)bakom.admin.ch>, Olga Cavalli <olgacavalli(a)gmail.com>, Pedro Ivo Ferraz da Silva < pedro.ivo(a)itamaraty.gov.br>, "<Jorge.Cancio(a)bakom.admin.ch>" < Jorge.Cancio(a)bakom.admin.ch>, "<Sabine.Meyer(a)bmwi.bund.de>" < Sabine.Meyer(a)bmwi.bund.de>, "<gac-leadership(a)icann.org>" < gac-leadership(a)icann.org> Cc: "bylaws-coord(a)icann.org" <bylaws-coord(a)icann.org>, ICANN-Adler < ICANN(a)adlercolvin.com>, Sidley ICANN CCWG <sidleyicannccwg(a)sidley.com> Dear Samantha Pls kindly convey my message sent last night on how reflect the Carve- Out in the Bylaws in exact quotation of the texts as contained in Recs. 1&2 by creating to distinct and specific provision in that regard without going through a very heavy drafting which may intentionally it unintentionally expand the very limited occurrence of that circumstances. I have serious concerns and strong objections to the existing draft in that relations Tks Kavouss Sent from my iPhone On 7 Apr 2016, at 23:02, Samantha Eisner via bylaws-coord < bylaws-coord(a)icann.org> wrote: Dear Bylaws Coordination Group - In our reviews of the document since circulation on Sunday, the attorneys have identified a set of items that were unintentionally omitted from the document as it was being prepared for distribution, as well as a few typos and minor corrections that needed to be addressed based upon the language agreed over the weekend. These updates do not address the items that have been under discussion in this group, the CWG or the CCWG. We are all continuing to follow those discussions so that changes can be incorporated into a new version. The clean up items that are reflected in the attached track changes version are: a) 4.2(f) - inserted omitted provision b) 4.3(v) - typo c) 4.3(w) - typo d) 4.3(d) - busted section reference (no longer a provision for Community IRP in Bylaws; assuming it should just be reference to Community IRP in Annex D) e) 4.3(e) - busted section reference (no longer a provision for Community IRP in Bylaws; assuming it should just be reference to Community IRP in Annex D) f) 6.1(c) - typo g) 7.24 - inserted omitted provision h) 7.25 - inserted omitted provision i) 8.1 - typo j) 9.2(b) - typo 11.3(f) - typo k) 16.3 - inserted omitted provision l) 18.1 - updated section reference m) 18.9(a) words missing at the end "shall be the action of the IFRT." n) 19.1(c)(i) first sentence should be "An SCWG Creation Approval shall become effective..." o) 19.1(c)(ii) first sentence should be "An SCWG Creation Approval that has been rejected..." p) 19.7(a) words missing at the end "shall be the action of the SCWG." q) 25.2 – Fixed heading r) 27.2(c)(iii) - inserted omitted provision s) Annex D, Section 1.4(b)(ii) – fixed threshold reference from “two or more” to “*three* or more” t) Annex E, Section 1(e) - typo Thanks, Sam Eisner <DRAFT-NEW-ICANN-BYLAWS-vers2APR-UPDATED 7 April.docx> _______________________________________________ bylaws-coord mailing list bylaws-coord(a)icann.org https://mm.icann.org/mailman/listinfo/bylaws-coord

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Re: [CCWG-ACCT] CCWG - Bylaws Drafting - Questions
by Seun Ojedeji April 9, 2016

April 9, 2016

Sent from my LG G4 Kindly excuse brevity and typos On 9 Apr 2016 2:36 p.m., "Chartier, Mike S" <mike.s.chartier(a)intel.com> wrote: > > “This implies that you(some) don't think board should be able to remove it's members.” > > No, it wasn’t to imply that at all. > SO: Really? but.... > No one (to my knowledge) objected to the board being able to remove members. > SO: ... how will the board be able to remove their members if what you said below earlier is the case: Mike wrote: "..Some expressed the desire that the EC consent be real and not perfunctory." This is likened to saying I have access to open a door, yet you have the keys. > But it is also true that no one (to my knowledge) objected to the EC being required to give consent. > SO: Correct > So the question is what form the consent should take. > SO: .. And you said it has to be real and not automatic as initially recommended. Which means technically that board is indeed limited in its members removal > But as Eberhard has said ¾ is a high threshold, and as Marilyn has pointed out it is (yet another) rare corner case. So it’s nothing to fall on a sword over, and I’m sure we’ll settle it on Monday. > SO: Even though this has been said previously, it's good that there is a common understanding now(which is the most important) [1] Regards 1. I understand that at times it takes certain people to repeat things before some of us can be convinced. > > > > > > > > > From: Seun Ojedeji [mailto:seun.ojedeji@gmail.com] > Sent: Saturday, April 9, 2016 12:24 AM > To: Chartier, Mike S <mike.s.chartier(a)intel.com> > Cc: Bernard Turcotte (turcotte.bernard(a)gmail.com) < turcotte.bernard(a)gmail.com>; accountability-cross-community(a)icann.org > Subject: Re: [CCWG-ACCT] CCWG - Bylaws Drafting - Questions > > > > Hi, > > This implies that you(some) don't think board should be able to remove it's members. While I wonder why you have such view, I don't think that its a question/response we should be sending to the lawyers as it is a decision the CCWG has to made. > > In the past, we have pushed so much question to the lawyers without actually indicating what we want. It is my hope that we will avoid that at this stage; we should always indicate what we want so layers can advice on how we may go about it (if at all possible). > > That said, I think we need to recognise the implication of what you've said; it implies that a community process will need to be put in place to get the EC's approval and I wonder how long that would take. The other question from that is what the status of the menber would be during that process. I don't know of any organisation that makes its board so dependent in the manner you are proposing. > > Andrew raised a valid concern about possibility of board removing a member that was re-appointed (within the same term). While I believe such scenario would be so extreme and close to impossible, as I have earlier said a way to approach it could be to subject subsequent removal to actual approval of EC. However the Co-Chairs in their wisdom has thrown the question of "how to achieve what we want" to the lawyers which I believe is in order. I do think we should be setting processes that helps the board know the consequences of their actions and not the one that always prevents them from acting. > > Regards > Sent from my LG G4 > Kindly excuse brevity and typos > > On 8 Apr 2016 10:49 p.m., "Chartier, Mike S" <mike.s.chartier(a)intel.com> wrote: >> >> RE: Q6 >> >> “concerns have been expressed that there might be issues when the community tries to seat Board members and then the Board removes those board members instantly.” >> >> I’m not sure that captures the whole concern. Some expressed the desire that the EC consent be real and not perfunctory. >> >> >> >> From: accountability-cross-community-bounces(a)icann.org [mailto: accountability-cross-community-bounces(a)icann.org] On Behalf Of Bernard Turcotte >> Sent: Friday, April 8, 2016 5:35 PM >> To: Accountability Cross Community < accountability-cross-community(a)icann.org> >> Subject: [CCWG-ACCT] CCWG - Bylaws Drafting - Questions >> >> >> >> All, >> >> >> >> Please find attached 2 documents. >> >> >> >> The first is the compilation of the answers provided to lawyers on Thursday April 7th. >> >> >> >> The second is a list of remaining open questions. For some of these questions the CCWG co-chairs and rapporteurs have reviewed the original proposed replies or added some new replies - these are clearly indicated in the document. >> >> >> >> Co-chairs, rapporteurs and staff have tried to be dutiful in capturing the questions from the list but it is possible some were missed. If you have submitted a question or issue please verify it is included in this version of the document. >> >> >> >> Please remember that the deadline for submitting questions and issues is 23:59 UTC Saturday April 9 2016. >> >> >> >> We are looking forward to continuing the process of addressing these issues and questions at our Monday April 11th meeting at 19:00 UTC. >> >> >> >> Bernard Turcotte >> >> ICANN Staff Support for the CCWG Co-Chairs >> >> Thomas Rickert, Mathieu Weill, Leon Sanchez >> >> >> _______________________________________________ >> 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 - Bylaws Drafting - Questions
by Bernard Turcotte April 9, 2016

April 9, 2016

All, Please find attached 2 documents. The first is the compilation of the answers provided to lawyers on Thursday April 7th. The second is a list of remaining open questions. For some of these questions the CCWG co-chairs and rapporteurs have reviewed the original proposed replies or added some new replies - these are clearly indicated in the document. Co-chairs, rapporteurs and staff have tried to be dutiful in capturing the questions from the list but it is possible some were missed. If you have submitted a question or issue please verify it is included in this version of the document. Please remember that the deadline for submitting questions and issues is 23:59 UTC Saturday April 9 2016. We are looking forward to continuing the process of addressing these issues and questions at our Monday April 11th meeting at 19:00 UTC. Bernard Turcotte ICANN Staff Support for the CCWG Co-Chairs Thomas Rickert, Mathieu Weill, Leon Sanchez

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