Dear holly, Thank you very much for your clear legal view: There is a proverb in Persian language which could roughly translated as follows: “Whatever, the junior observes in a Mirror, the senior ( age) could observe in the Stone” I submitted exactly in one of message to the mailing list several weeks ago the same argument that that you described in this message that Article 1 of Fundamental Bylaws including Mission is the supreme / highest level of text in the ICANN text and thus issues such as MoU which as it self-described itself is merely Memorandum and nothing more than that should not appear in the highest level of the ICANN TEXT. I went even beyond your suggestion in arguing that cross reference in the legal document would almost provide the same level of the main text to the crossed referenced text. I therefore suggest , should we all agree by consensus to cross reference ANY MoU, paraphrase that by a term;” See also MoU XXX as an informative reference thus would not give a formative status to any MoU due to the fact that MoU does not have any mandatory status as it is a “ Memorandum of Understanding only. Something which has a memorandum status is just for memorandum “aide memoire “, In French, and nothing more than that. I have noticed that many such arguments that I have made were simply rejected for other grounds than professional But I am used to it and do not take it serious. Another Persian Proverb says “ I have told you whatever should I had told you , it is up to you to take it or reject it “ I do not wish to argue with anybody as I accept many thing that are not disturbing but I can not agree that mandatory legal terms / provisions contains or cross reference to non mandatory provisions due to the fact that the non-mandatory provision such as MoU may change with time thus the mandatory provisions would be subordinated with something which could easily change such as MoU. I SPENT 40 YEARS IN dealing with such DOMAIN Kavouss 2016-01-18 21:27 GMT+01:00 Gregory, Holly <holly.gregory@sidley.com>:
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@sidley.com
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