FW: Lawyer's High Level Review re Proposal to Refer to 2004 ASO MOU in Mission Statement (Annex 5, Third Proposal)
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@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@rickert.net<mailto:thomas@rickert.net>; León Felipe Sánchez Ambía; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>; acct-staff@icann.org<mailto:acct-staff@icann.org> Cc: Sidley ICANN CCWG; Greeley, Amy E.; Grapsas, Rebecca; ICANN@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@sidley.com<mailto:holly.gregory@sidley.com<mailto:holly.gregory@sidley.com%3cmailto:holly.gregory@sidley.com>>
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Speaking on behalf of myself, I like to make some personal clarification/suggestions: 1. There is no MoU between ICANN and ASO (well at least I don't know of any and would appreciate a pointer if such exist). There is however MoU between ICANN and NRO which is used to establish the ASO(which I believe Izumi was referring to) with a section of that having the global policy development process (gPDP). https://archive.icann.org/en/aso/aso-mou-29oct04.htm 2. ICANN board as per the gPDP does indeed ratify global policies, so the word ratifies is indeed accurate. However you may say it "ratifies and implements..." as it would still imply the same thing already indicated in Izumi's text. 3. The policy implementation referred to is the reason why there is the leading text that it "...Coordinates the allocation and assignment.." So ICANN coordination is the act of implementation of those policies. I think the text as proposed by ASO seem more accurate 4. I agree with spelling MoU in full but I don't think it's helpful to indicate a date as it will imply that a change in the MoU would require having to go through bylaw change process as well. Since both parties will be involved in the MoU change process then there is no need to go that far in hardcoding the mission. 5. If the group/ASO determines to leave the date then there is really no need to include the last part "...as it may be amended from time to time in accordance with its terms." As it sounds like explanation/rationale that does not need to be in a mission statement. 6. As I have already indicated to Izumi privately, I would have preferred a text reading as follows: "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 global policy development process" My rationale is because that section is referring to policies. Nevertheless, I am still fine with indicating MoU instead if everyone is okay with that since the gPDP is part of it. Regards On 21 Jan 2016 04:05, "Rosemary E. Fei" <rfei@adlercolvin.com> wrote:
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@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@rickert.net; León Felipe Sánchez Ambía; accountability-cross-community@icann.org; acct-staff@icann.org *Cc:* Sidley ICANN CCWG; Greeley, Amy E.; Grapsas, Rebecca; 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@sidley.com<mailto:holly.gregory@sidley.com>
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A couple of responses to Seun below. Based on Seun's point 1, I would suggest revising Rosemary's language so it reads as follows: 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 ICANN Address Supporting Organization (ASO) Memorandum of Understanding between ICANN and the Number Resource Organization dated 21 October, 2004, as may be amended from time to time in accordance with its terms. NOTE: Date of document taken from directly above signature block in document found at link provided by Seun. Greg On Thu, Jan 21, 2016 at 4:11 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Speaking on behalf of myself, I like to make some personal clarification/suggestions:
1. There is no MoU between ICANN and ASO (well at least I don't know of any and would appreciate a pointer if such exist). There is however MoU between ICANN and NRO which is used to establish the ASO(which I believe Izumi was referring to) with a section of that having the global policy development process (gPDP). https://archive.icann.org/en/aso/aso-mou-29oct04.htm
GSS: This is a helpful clarification for those not familiar with the documents.
2. ICANN board as per the gPDP does indeed ratify global policies, so the word ratifies is indeed accurate. However you may say it "ratifies and implements..." as it would still imply the same thing already indicated in Izumi's text.
3. The policy implementation referred to is the reason why there is the leading text that it "...Coordinates the allocation and assignment.." So ICANN coordination is the act of implementation of those policies. I think the text as proposed by ASO seem more accurate
4. I agree with spelling MoU in full but I don't think it's helpful to indicate a date as it will imply that a change in the MoU would require having to go through bylaw change process as well. Since both parties will be involved in the MoU change process then there is no need to go that far in hardcoding the mission.
GSS: When referring to a signed document in legal materials, it is standard operating procedure to include the date, this makes the reference more specific. Without the date, the document would not be considered adequately identified.
5. If the group/ASO determines to leave the date then there is really no need to include the last part "...as it may be amended from time to time in accordance with its terms." As it sounds like explanation/rationale that does not need to be in a mission statement.
GSS: This language is also standard operating procedure, and its effect is to remove the problem you mention under your point 4 (needing to update the reference in the bylaws if the MoU is amended).
6. As I have already indicated to Izumi privately, I would have preferred a text reading as follows: "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 global policy development process"
My rationale is because that section is referring to policies. Nevertheless, I am still fine with indicating MoU instead if everyone is okay with that since the gPDP is part of it.
Regards On 21 Jan 2016 04:05, "Rosemary E. Fei" <rfei@adlercolvin.com> wrote:
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@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@rickert.net; León Felipe Sánchez Ambía; accountability-cross-community@icann.org; acct-staff@icann.org *Cc:* Sidley ICANN CCWG; Greeley, Amy E.; Grapsas, Rebecca; 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@sidley.com<mailto:holly.gregory@sidley.com>
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On 21 Jan 2016 7:04 p.m., "Greg Shatan" <gregshatanipc@gmail.com> wrote:
Without the date, the document would not be considered adequately
identified.
5. If the group/ASO determines to leave the date then there is really no
need to include the last part "...as it may be amended from time to time in accordance with its terms." As it sounds like explanation/rationale that does not need to be in a mission statement.
GSS: This language is also standard operating procedure, and its effect is to remove the problem you mention under your point 4 (needing to update the reference in the bylaws if the MoU is amended).
SO: Okay this is good to know, from your explanation it means MoU can change without need to update the date on the mission statement. This fine then as I was thinking the document signed on the date initially referenced is what the courts will be looking for (not that I hope it gets to that level anyway) Thanks for this important clarification Regards
6. As I have already indicated to Izumi privately, I would have
preferred a text reading as follows:
"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 global policy development process"
My rationale is because that section is referring to policies. Nevertheless, I am still fine with indicating MoU instead if everyone is okay with that since the gPDP is part of it.
Regards
On 21 Jan 2016 04:05, "Rosemary E. Fei" <rfei@adlercolvin.com> wrote:
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@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@rickert.net; León Felipe
Sánchez Ambía; accountability-cross-community@icann.org; acct-staff@icann.org
Cc: Sidley ICANN CCWG; Greeley, Amy E.; Grapsas, Rebecca; 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 a
Dear Rosemary, Holly, Izumi, and Colleagues, I support improvements to the 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.
The CIDRD WG produced a draft-ietf-cidrd-private-addr, adopted as RFC 1918 in early 1996, also known as BCP 5. In consequence, the IANA reserved three address blocks: 10/8, 172.16/12, and 192.168/16 in CIDR notation. Additionally, while ARIN (1997) is roughly contemporanious with ICANN (1998), allocation and assignment of address blocks and Autonomus System Numbers, like allocation of domain names, took place before the formation of that entity. I suggest that the text could be improved by wordsmithing that would incidate that ICANN's mission w.r.t. the numbers function, that is, the constituent exercise of allocation and assignment by the entities which form the NRO, and so the ASO, continues the general policy of allocation and assignment developed prior to the incorporations of either ICANN or ARIN, as well as allocations and assignments made by the IETF. Thank you for your patience, Eric Brunner-Williams Eugene, Oregon
ear Rosemary and Holly, Dear All, I have no problem wuith the proposed text so far as it referrs to : "most recent version of Memorandum of Understanding between ICANN and the ASO* ztHERE IS NO NEED TO THE LAST PART "as may be amended from time to time in accordance with its Terms" Legally , the most recent Version of..... covers the last part . I theerefore DO NOT SUPPORT THE LAST PART . Kavouss 2016-01-22 20:19 GMT+01:00 Eric (Maule) Brunner-Williams < ebw@abenaki.wabanaki.net>:
Dear Rosemary, Holly, Izumi, and Colleagues,
I support improvements to the 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.
The CIDRD WG produced a draft-ietf-cidrd-private-addr, adopted as RFC 1918 in early 1996, also known as BCP 5. In consequence, the IANA reserved three address blocks: 10/8, 172.16/12, and 192.168/16 in CIDR notation.
Additionally, while ARIN (1997) is roughly contemporanious with ICANN (1998), allocation and assignment of address blocks and Autonomus System Numbers, like allocation of domain names, took place before the formation of that entity.
I suggest that the text could be improved by wordsmithing that would incidate that ICANN's mission w.r.t. the numbers function, that is, the constituent exercise of allocation and assignment by the entities which form the NRO, and so the ASO, continues the general policy of allocation and assignment developed prior to the incorporations of either ICANN or ARIN, as well as allocations and assignments made by the IETF.
Thank you for your patience,
Eric Brunner-Williams Eugene, Oregon _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Rosemary and all, Thank you for your follow up suggestion on the text of ICANN's mission with respect to the numbers function. We had further discussions within the ASO, and would like to suggest the text below. I would be happy to explain key points at the coming call. --- Coordinates the allocation and assignment of the top-most level of Internet Protocol (“IP”) and Autonomous System (“AS”) numbers. In this role, ICANN’s Mission is: 1) to provide registration services and open access for these global number registries as requested by the Internet Engineering Task Force and the Regional Internet Registries, and 2) to facilitate the development of related global number registry policies by the affected community as agreed with the RIRs. --- Izumi on behalf of the ASO On 2016/01/21 12:05, Rosemary E. Fei wrote:
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@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@rickert.net<mailto:thomas@rickert.net>; León Felipe Sánchez Ambía; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>; acct-staff@icann.org<mailto:acct-staff@icann.org> Cc: Sidley ICANN CCWG; Greeley, Amy E.; Grapsas, Rebecca; ICANN@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@sidley.com<mailto:holly.gregory@sidley.com<mailto:holly.gregory@sidley.com%3cmailto:holly.gregory@sidley.com>>
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Dear All, I think we should avoid to further modify the text proposed by Lawyers even if it aimed to perfectionalized the language. If we attempt to modify ,we never end this business. Kavouss 2016-01-26 14:39 GMT+01:00 Izumi Okutani <izumi@nic.ad.jp>:
Dear Rosemary and all,
Thank you for your follow up suggestion on the text of ICANN's mission with respect to the numbers function. We had further discussions within the ASO, and would like to suggest the text below.
I would be happy to explain key points at the coming call.
--- Coordinates the allocation and assignment of the top-most level of Internet Protocol (“IP”) and Autonomous System (“AS”) numbers. In this role, ICANN’s Mission is:
1) to provide registration services and open access for these global number registries as requested by the Internet Engineering Task Force and the Regional Internet Registries, and 2) to facilitate the development of related global number registry policies by the affected community as agreed with the RIRs. ---
Izumi on behalf of the ASO
On 2016/01/21 12:05, Rosemary E. Fei wrote:
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@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@rickert.net<mailto: thomas@rickert.net>; León Felipe Sánchez Ambía; accountability-cross-community@icann.org<mailto: accountability-cross-community@icann.org>; acct-staff@icann.org<mailto: acct-staff@icann.org> Cc: Sidley ICANN CCWG; Greeley, Amy E.; Grapsas, Rebecca; ICANN@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@sidley.com<mailto:holly.gregory@sidley.com<mailto: holly.gregory@sidley.com%3cmailto:holly.gregory@sidley.com>>
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Kavouss, Actually, it was a request from lawyers, to remove some external references to the ASO MoU (on the numbers community part). So, there is no way to remove text and keep the same meaning without clarifying the remaining text. Hopefully this wording is succinct enough to cover the lawyers need. Best, Oscar Robles On 1/26/16 10:45, Kavouss Arasteh wrote:
Dear All, I think we should avoid to further modify the text proposed by Lawyers even if it aimed to perfectionalized the language. If we attempt to modify ,we never end this business. Kavouss
2016-01-26 14:39 GMT+01:00 Izumi Okutani <izumi@nic.ad.jp <mailto:izumi@nic.ad.jp>>:
Dear Rosemary and all,
Thank you for your follow up suggestion on the text of ICANN's mission with respect to the numbers function. We had further discussions within the ASO, and would like to suggest the text below.
I would be happy to explain key points at the coming call.
--- Coordinates the allocation and assignment of the top-most level of Internet Protocol (“IP”) and Autonomous System (“AS”) numbers. In this role, ICANN’s Mission is:
1) to provide registration services and open access for these global number registries as requested by the Internet Engineering Task Force and the Regional Internet Registries, and 2) to facilitate the development of related global number registry policies by the affected community as agreed with the RIRs. ---
Izumi on behalf of the ASO
On 2016/01/21 12:05, Rosemary E. Fei wrote: > 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 <tel:415%2F421-7555> (phone) > 415/421-0712 <tel:415%2F421-0712> (fax) > rfei@adlercolvin.com <mailto:rfei@adlercolvin.com> > www.adlercolvin.com <http://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@rickert.net <mailto:thomas@rickert.net><mailto:thomas@rickert.net <mailto:thomas@rickert.net>>; León Felipe Sánchez Ambía; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org><mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>; acct-staff@icann.org <mailto:acct-staff@icann.org><mailto:acct-staff@icann.org <mailto:acct-staff@icann.org>> > Cc: Sidley ICANN CCWG; Greeley, Amy E.; Grapsas, Rebecca; ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com><mailto:ICANN@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@sidley.com <mailto:holly.gregory@sidley.com><mailto:holly.gregory@sidley.com <mailto:holly.gregory@sidley.com><mailto:holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>%3cmailto:holly.gregory@sidley.com <mailto:3cmailto%3Aholly.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@icann.org <mailto:Accountability-Cross-Community@icann.org><mailto:Accountability-Cross-Community@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_listinfo_accountability-2Dcross-2Dcommunity&d=CwMF-g&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=RcW2WW451KvYcfQSGbTo6wYQRYuCQCv0VXmu9pGdB_s&s=0trXgoSadK4OFsq8HqvzuBwnlWSyi7XQTBmByOIUJrM&e=> >> > > > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> > https://mm.icann.org/mailman/listinfo/accountability-cross-community >
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Dear Oscar, Yes it was their proposal but I did the same proposal three weeks before them since in a high level text we can not refer to MoU please kindly refer to my intervention in the last call by which I describe all legal aspect of the issue. However, dhould we arrive at a satisfactory solution within this week with full consensus.I have no problem.My concerns is opening a new rounds of e-mail exchange Regards Kavouss 2016-01-26 15:16 GMT+01:00 Oscar A. Robles-Garay <oscar@lacnic.net>:
Kavouss, Actually, it was a request from lawyers, to remove some external references to the ASO MoU (on the numbers community part). So, there is no way to remove text and keep the same meaning without clarifying the remaining text. Hopefully this wording is succinct enough to cover the lawyers need.
Best, Oscar Robles
On 1/26/16 10:45, Kavouss Arasteh wrote:
Dear All, I think we should avoid to further modify the text proposed by Lawyers even if it aimed to perfectionalized the language. If we attempt to modify ,we never end this business. Kavouss
2016-01-26 14:39 GMT+01:00 Izumi Okutani <izumi@nic.ad.jp>:
Dear Rosemary and all,
Thank you for your follow up suggestion on the text of ICANN's mission with respect to the numbers function. We had further discussions within the ASO, and would like to suggest the text below.
I would be happy to explain key points at the coming call.
--- Coordinates the allocation and assignment of the top-most level of Internet Protocol (“IP”) and Autonomous System (“AS”) numbers. In this role, ICANN’s Mission is:
1) to provide registration services and open access for these global number registries as requested by the Internet Engineering Task Force and the Regional Internet Registries, and 2) to facilitate the development of related global number registry policies by the affected community as agreed with the RIRs. ---
Izumi on behalf of the ASO
On 2016/01/21 12:05, Rosemary E. Fei wrote:
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@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@rickert.net<mailto: thomas@rickert.net>; León Felipe Sánchez Ambía; accountability-cross-community@icann.org<mailto: accountability-cross-community@icann.org>; acct-staff@icann.org<mailto: acct-staff@icann.org> Cc: Sidley ICANN CCWG; Greeley, Amy E.; Grapsas, Rebecca; ICANN@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@sidley.com<mailto:holly.gregory@sidley.com<mailto: holly.gregory@sidley.com%3cmailto:holly.gregory@sidley.com>>
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That is exactly what our intention is - trying to suggest a satisfactory solution within this week for consensus. We still observe some concerns about reference to the ASO MoU and a number of other issues. It was challenging not to come up with something which may appear as new, to address all substantial issues being raised. Izumi On 2016/01/26 23:25, Kavouss Arasteh wrote:
Dear Oscar, Yes it was their proposal but I did the same proposal three weeks before them since in a high level text we can not refer to MoU please kindly refer to my intervention in the last call by which I describe all legal aspect of the issue. However, dhould we arrive at a satisfactory solution within this week with full consensus.I have no problem.My concerns is opening a new rounds of e-mail exchange Regards Kavouss
2016-01-26 15:16 GMT+01:00 Oscar A. Robles-Garay <oscar@lacnic.net>:
Kavouss, Actually, it was a request from lawyers, to remove some external references to the ASO MoU (on the numbers community part). So, there is no way to remove text and keep the same meaning without clarifying the remaining text. Hopefully this wording is succinct enough to cover the lawyers need.
Best, Oscar Robles
On 1/26/16 10:45, Kavouss Arasteh wrote:
Dear All, I think we should avoid to further modify the text proposed by Lawyers even if it aimed to perfectionalized the language. If we attempt to modify ,we never end this business. Kavouss
2016-01-26 14:39 GMT+01:00 Izumi Okutani <izumi@nic.ad.jp>:
Dear Rosemary and all,
Thank you for your follow up suggestion on the text of ICANN's mission with respect to the numbers function. We had further discussions within the ASO, and would like to suggest the text below.
I would be happy to explain key points at the coming call.
--- Coordinates the allocation and assignment of the top-most level of Internet Protocol (“IP”) and Autonomous System (“AS”) numbers. In this role, ICANN’s Mission is:
1) to provide registration services and open access for these global number registries as requested by the Internet Engineering Task Force and the Regional Internet Registries, and 2) to facilitate the development of related global number registry policies by the affected community as agreed with the RIRs. ---
Izumi on behalf of the ASO
On 2016/01/21 12:05, Rosemary E. Fei wrote:
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@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@rickert.net<mailto: thomas@rickert.net>; León Felipe Sánchez Ambía; accountability-cross-community@icann.org<mailto: accountability-cross-community@icann.org>; acct-staff@icann.org<mailto: acct-staff@icann.org> Cc: Sidley ICANN CCWG; Greeley, Amy E.; Grapsas, Rebecca; ICANN@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@sidley.com<mailto:holly.gregory@sidley.com<mailto: holly.gregory@sidley.com%3cmailto:holly.gregory@sidley.com>>
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This is well written version, addresses all the concern of MoU, date, word "ratifies" vs Implements.... et all. While still capturing the current role of ICANN. Thanks for providing this re-wording Izumi. Hopefully this can meet everyone's/most people's requirement. Regards On Tue, Jan 26, 2016 at 2:39 PM, Izumi Okutani <izumi@nic.ad.jp> wrote:
Dear Rosemary and all,
Thank you for your follow up suggestion on the text of ICANN's mission with respect to the numbers function. We had further discussions within the ASO, and would like to suggest the text below.
I would be happy to explain key points at the coming call.
--- Coordinates the allocation and assignment of the top-most level of Internet Protocol (“IP”) and Autonomous System (“AS”) numbers. In this role, ICANN’s Mission is:
1) to provide registration services and open access for these global number registries as requested by the Internet Engineering Task Force and the Regional Internet Registries, and 2) to facilitate the development of related global number registry policies by the affected community as agreed with the RIRs. ---
Izumi on behalf of the ASO
On 2016/01/21 12:05, Rosemary E. Fei wrote:
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@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@rickert.net<mailto: thomas@rickert.net>; León Felipe Sánchez Ambía; accountability-cross-community@icann.org<mailto: accountability-cross-community@icann.org>; acct-staff@icann.org<mailto: acct-staff@icann.org> Cc: Sidley ICANN CCWG; Greeley, Amy E.; Grapsas, Rebecca; ICANN@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@sidley.com<mailto:holly.gregory@sidley.com<mailto: holly.gregory@sidley.com%3cmailto:holly.gregory@sidley.com>>
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-- ------------------------------------------------------------------------ *Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email: <http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>* Bringing another down does not take you up - think about your action!
Thank you Seun. Those are indeed the key issues the ASO intended to address, which have been raised so far in the CCWG discussions. Izumi On 2016/01/26 23:24, Seun Ojedeji wrote:
This is well written version, addresses all the concern of MoU, date, word "ratifies" vs Implements.... et all. While still capturing the current role of ICANN.
Thanks for providing this re-wording Izumi. Hopefully this can meet everyone's/most people's requirement.
Regards
On Tue, Jan 26, 2016 at 2:39 PM, Izumi Okutani <izumi@nic.ad.jp> wrote:
Dear Rosemary and all,
Thank you for your follow up suggestion on the text of ICANN's mission with respect to the numbers function. We had further discussions within the ASO, and would like to suggest the text below.
I would be happy to explain key points at the coming call.
--- Coordinates the allocation and assignment of the top-most level of Internet Protocol (“IP”) and Autonomous System (“AS”) numbers. In this role, ICANN’s Mission is:
1) to provide registration services and open access for these global number registries as requested by the Internet Engineering Task Force and the Regional Internet Registries, and 2) to facilitate the development of related global number registry policies by the affected community as agreed with the RIRs. ---
Izumi on behalf of the ASO
On 2016/01/21 12:05, Rosemary E. Fei wrote:
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@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@rickert.net<mailto: thomas@rickert.net>; León Felipe Sánchez Ambía; accountability-cross-community@icann.org<mailto: accountability-cross-community@icann.org>; acct-staff@icann.org<mailto: acct-staff@icann.org> Cc: Sidley ICANN CCWG; Greeley, Amy E.; Grapsas, Rebecca; ICANN@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@sidley.com<mailto:holly.gregory@sidley.com<mailto: holly.gregory@sidley.com%3cmailto:holly.gregory@sidley.com>>
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YES I have serious concerns to refer to MoU for the reasons that I explained in my eralier mail to Lawyers and further elaborated at the call CCWG Call Regards Kavouss 2016-01-26 15:42 GMT+01:00 Izumi Okutani <izumi@nic.ad.jp>:
Thank you Seun. Those are indeed the key issues the ASO intended to address, which have been raised so far in the CCWG discussions.
Izumi
On 2016/01/26 23:24, Seun Ojedeji wrote:
This is well written version, addresses all the concern of MoU, date, word "ratifies" vs Implements.... et all. While still capturing the current role of ICANN.
Thanks for providing this re-wording Izumi. Hopefully this can meet everyone's/most people's requirement.
Regards
On Tue, Jan 26, 2016 at 2:39 PM, Izumi Okutani <izumi@nic.ad.jp> wrote:
Dear Rosemary and all,
Thank you for your follow up suggestion on the text of ICANN's mission with respect to the numbers function. We had further discussions within the ASO, and would like to suggest the text below.
I would be happy to explain key points at the coming call.
--- Coordinates the allocation and assignment of the top-most level of Internet Protocol (“IP”) and Autonomous System (“AS”) numbers. In this role, ICANN’s Mission is:
1) to provide registration services and open access for these global number registries as requested by the Internet Engineering Task Force and the Regional Internet Registries, and 2) to facilitate the development of related global number registry policies by the affected community as agreed with the RIRs. ---
Izumi on behalf of the ASO
On 2016/01/21 12:05, Rosemary E. Fei wrote:
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@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@rickert.net<mailto: thomas@rickert.net>; León Felipe Sánchez Ambía; accountability-cross-community@icann.org<mailto: accountability-cross-community@icann.org>; acct-staff@icann.org<mailto: acct-staff@icann.org> Cc: Sidley ICANN CCWG; Greeley, Amy E.; Grapsas, Rebecca; ICANN@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@sidley.com<mailto:holly.gregory@sidley.com<mailto: holly.gregory@sidley.com%3cmailto:holly.gregory@sidley.com>>
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On Tue, Jan 26, 2016 at 04:22:15PM +0100, Kavouss Arasteh wrote:
I have serious concerns to refer to MoU for the reasons that I explained in my eralier mail to Lawyers and further elaborated at the call CCWG Call
Yes, I think everyone understands the concerns of including the reference to an outside agreement. The text Izumi sent avoids that. It also modifies things consistent with what that MoU says and aligned with what ICANN actually does. Is it acceptable to you? I think it'd be tremendous if we could come to agreement on the list (if that is possible) instead of taking up time on the phone. Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com
Dear Andrew, Pls kindly note my message indicating that if we quickly reach a consensus on the matter for me it is perfect. I am worried about opening a new round of discussions so far as I know my CCWG Colleagues they quickly start to proposed changes .I wish to avoid that Regards Kavouss 2016-01-26 16:28 GMT+01:00 Andrew Sullivan <ajs@anvilwalrusden.com>:
On Tue, Jan 26, 2016 at 04:22:15PM +0100, Kavouss Arasteh wrote:
I have serious concerns to refer to MoU for the reasons that I explained in my eralier mail to Lawyers and further elaborated at the call CCWG Call
Yes, I think everyone understands the concerns of including the reference to an outside agreement. The text Izumi sent avoids that. It also modifies things consistent with what that MoU says and aligned with what ICANN actually does. Is it acceptable to you? I think it'd be tremendous if we could come to agreement on the list (if that is possible) instead of taking up time on the phone.
Best regards,
A
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participants (8)
-
Andrew Sullivan -
Eric (Maule) Brunner-Williams -
Greg Shatan -
Izumi Okutani -
Kavouss Arasteh -
Oscar A. Robles-Garay -
Rosemary E. Fei -
Seun Ojedeji