November 2013 - atrt2 - lists.icann.org

LAST CHANCE FOR EDITS!
by Brian Cute Dec. 18, 2013

Dec. 18, 2013

Review Team, Attached is the latest draft of the Report and Recommendations. Please carefully note the following: 1. Provide only SUBSTANTIVE AND CRITICAL edits you may have on the SUBSTANCE of the draft within 24 hours, or by 10:00p.m. UTC tomorrow. 2. Ignore edits concerning numbering, missing citations, spelling etc. Paul and I will continue over the next 24 hours to clean up the document so clean, correctly numbered version will go out for public comment. We will take any substantive and critical edits provided by 10:00p.m. UTC tomorrow and work them into the document. Our plan is to send the document to ICANN staff by 11:00p.m. UTC tomorrow to begin the translation process. 3. The Report will indicate that it is a draft that is subject to change based on Community input and continuing assessment by ATRT2 before the Final Report and Recommendations issue. Thanks to all. Regards, Brian

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Ombudsman
by Avri Doria Dec. 4, 2013

Dec. 4, 2013

Hi, Spoke to Chris as was discussed in the meeting. He would like to join us in a call if possible. I think he is also working on some comments. avri

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ATRT2 Feedback Discussion - Call 14 - 2 Dec @ 16:00-18:00 UTC
by Charla Shambley Dec. 2, 2013

Dec. 2, 2013

Dear Review Team Members, Pursuant to your request to discuss feedback from consultations, Board and staff and also to discuss the impact on draft recommendations, your next conference call has been scheduled as follows: Monday, 2 December 2013 16:00-18:00 UTC Please check your local time at: http://www.timeanddate.com/worldclock/fixedtime.html?msg=ATRT2+Call+14&iso=… Link to Adobe Connect: http://icann.adobeconnect.com/atrt2/ CONFERENCE ID: 27318 Dial-in numbers: are listed below according to your country of residence. Should you be traveling, please refer to the full list available at: http://adigo.com/icann/ Should you require a dial-out, please provide us with your phone number. Australia 1 800 009 820 1 800 036 775 Sydney – T - +61 290 372 962 Melbourne – T – +61 399 996 500 Brisbane – T – +61 731 777 546 Brazil L - 0800 891 1597 M - 0800 891 1598 T - +55 613 717 2040 New - 0800 892 3882 Canada 1 800 550 6865 T - +1 213 233 3193 China North - 10 800 712 1212 South - 10 800 120 1212 All - 400 120 0691 Costa Rica 0 800 0 121 513 Denmark L - 8088 7326 M - 8088 6280 T - +45 89 880 470 France 0800 913 680 0800 90 25 56 T -+33 975 181 806 Kenya No dial-in number available. Kindly provide your number and we will dial out to you. Russia New - 8 10 8002 2085011 T - 7 499 5042850 United Kingdom 0800 056 9431 0800 032 6646 T - +44 207 099 0867 United States 1 800 550 6865 T - +1 213 233 3193 Charla K. Shambley Strategic Initiatives Executive Assistant ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, CA 90094 310-578-8921

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Finance recommendation
by Lise Fuhr Nov. 27, 2013

Nov. 27, 2013

Dear all, Attached is the new version of recommendation 12.4 with track of the changes. We have no further changes to the rest of the recommendation yet. Best, Jørgen and Lise

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ATRT2 Call 16 to Discuss Final Changes - 17 Dec @ 20:00-22:00 UTC
by Charla Shambley Nov. 25, 2013

Nov. 25, 2013

Dear Review Team Members, Pursuant to your request to discuss final changes to the draft recommendations, conference call 16 has been scheduled as follows: Tuesday, 17 December 2013 20:00-22:00 UTC Please check your local time at: http://www.timeanddate.com/worldclock/fixedtime.html?msg=ATRT2+Call+16&iso=… Link to Adobe Connect: http://icann.adobeconnect.com/atrt2/ CONFERENCE ID: 27318 Dial-in numbers: are listed below according to your country of residence. Should you be traveling, please refer to the full list available at: http://adigo.com/icann/ Should you require a dial-out, please provide us with your phone number. Australia 1 800 009 820 1 800 036 775 Sydney – T - +61 290 372 962 Melbourne – T – +61 399 996 500 Brisbane – T – +61 731 777 546 Brazil L - 0800 891 1597 M - 0800 891 1598 T - +55 613 717 2040 New - 0800 892 3882 Canada 1 800 550 6865 T - +1 213 233 3193 China North - 10 800 712 1212 South - 10 800 120 1212 All - 400 120 0691 Costa Rica 0 800 0 121 513 Denmark L - 8088 7326 M - 8088 6280 T - +45 89 880 470 France 0800 913 680 0800 90 25 56 T -+33 975 181 806 Kenya No dial-in number available. Kindly provide your number and we will dial out to you. Russia New - 8 10 8002 2085011 T - 7 499 5042850 United Kingdom 0800 056 9431 0800 032 6646 T - +44 207 099 0867 United States 1 800 550 6865 T - +1 213 233 3193 Charla K. Shambley Strategic Initiatives Executive Assistant ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, CA 90094 310-578-8921

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ATRT2 Feedback Discussion - Call 15 - 10 Dec @ 15:00-18:00 UTC
by Charla Shambley Nov. 25, 2013

Nov. 25, 2013

Dear Review Team Members, Pursuant to your request to discuss feedback from consultations, Board and staff and also to discuss the impact on draft recommendations, conference call 15 has been scheduled as follows: Tuesday, 10 December 2013 15:00-18:00 UTC Please check your local time at: http://www.timeanddate.com/worldclock/fixedtime.html?msg=ATRT2+Call+15&iso=… Link to Adobe Connect: http://icann.adobeconnect.com/atrt2/ CONFERENCE ID: 27318 Dial-in numbers: are listed below according to your country of residence. Should you be traveling, please refer to the full list available at: http://adigo.com/icann/ Should you require a dial-out, please provide us with your phone number. Australia 1 800 009 820 1 800 036 775 Sydney – T - +61 290 372 962 Melbourne – T – +61 399 996 500 Brisbane – T – +61 731 777 546 Brazil L - 0800 891 1597 M - 0800 891 1598 T - +55 613 717 2040 New - 0800 892 3882 Canada 1 800 550 6865 T - +1 213 233 3193 China North - 10 800 712 1212 South - 10 800 120 1212 All - 400 120 0691 Costa Rica 0 800 0 121 513 Denmark L - 8088 7326 M - 8088 6280 T - +45 89 880 470 France 0800 913 680 0800 90 25 56 T -+33 975 181 806 Kenya No dial-in number available. Kindly provide your number and we will dial out to you. Russia New - 8 10 8002 2085011 T - 7 499 5042850 United Kingdom 0800 056 9431 0800 032 6646 T - +44 207 099 0867 United States 1 800 550 6865 T - +1 213 233 3193 Charla K. Shambley Strategic Initiatives Executive Assistant ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, CA 90094 310-578-8921

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Fwd: Bylaws amendment
by Paul Diaz Nov. 21, 2013

Nov. 21, 2013

This is Becky Burr's support for her claim, backed by the RySG, that the ICANN Bylaws change related to Reconsideration Requests reduced the accountability protections of the IRP. Begin forwarded message: From: "Burr, Becky" <Becky.Burr(a)neustar.biz<mailto:Becky.Burr@neustar.biz>> Subject: Bylaws amendment Date: November 19, 2013 6:23:36 PM GMT-03:00 To: Paul Diaz <pdiaz(a)pir.org<mailto:pdiaz@pir.org>>, "bcute(a)pir.org<mailto:bcute@pir.org>" <bcute(a)pir.org<mailto:bcute@pir.org>> Summary. The 11 April 2013 Bylaws amendment replaced the substantive requirements of its Articles of Incorporation and Bylaws with California’s “Deferential Business Judgment Rule” as the yardstick against which Board Actions should be measured in an IRP. In ICANN’s own words, this standard would require IRP Panelists to dismiss IRP Requests unless the claimant can prove that the Board’s decision involved “fraud, bad faith, overreaching or an unreasonable failure to investigate material facts.” See ICM v. ICANN, ICANN’s Response to Claimants Memorial on the Merits, §128. Discussion. The Bylaws amendment, adopted by the Board without discussion on 11 April 2013, significantly narrows the scope of the IRP and profoundly diminishes the measure of accountability it provides. Under the new standard, ICANN will not be held accountable for any violation of its Bylaws unless the claimant in an IRP can prove that the violation was the result of “fraud, bad faith, overreaching or an unreasonable failure to investigate material facts.” As ICANN staff is well aware, there is no credible basis for arguing that this change preserves – let alone expands – accountability protections. The Pre-Amendment Bylaws provided that request for independent review: shall be referred to an Independent Review Process Panel ("IRP Panel"), which shall be charged with comparing contested actions of the Board to the Articles of Incorporation and Bylaws, and with declaring whether the Board has acted consistently with the provisions of those Articles of Incorporation and Bylaws. The Amended Bylaws contain the following new language: The IRP Panel must apply a defined standard of review to the IRP request, focusing on: did the Board act without conflict of interest in taking its decision?; did the Board exercise due diligence and care in having a reasonable amount of facts in front of them?; and did the Board members exercise independent judgment in taking the decision, believed to be in the best interests of the company. This new language is a restatement of California’s “Deferential Business Judgment Rule.” Under that rule, a California court will protect individual directors from liability for Board actions “even if a reasonable person would have acted differently, provided the board acted (i) in good faith, (ii) in the best interests of the association, and (iii) upon reasonable investigation. Lamden v. La Jolla Shores<http://www.davis-stirling.com/tabid/835/Default.aspx>, (1999) 21 Cal.4th 249. The Business Judgment Rule, however, "provides protection from personal liability for the individual directors of a non-profit [ ] association. It does not follow and is not true that the same rule of judicial deference will also automatically provide cover to the entity itself.” Ritter and Ritter v. Churchill, (2008) 166 Cal.App.4th 103 ICANN urged the Panelists in ICM v. ICANN to evaluate the Board’s liability under the deferential business judgment rule. In ICANN’s view, ICM claims should be dismissed unless it could prove that the Board’s decision reflected “fraud, bad faith, overreaching or an unreasonable failure to investigate material facts.” See ICANN’s Response to Claimants Memorial on the Merits, §128. A majority of the Panel rejected firmly rejected ICANN’s argument. Instead, it conducted a de novo review of the facts, and applied the Bylaw requirements without significant deference to the Board. The Majority declared that ICANN is bound by its Articles of Incorporation and Bylaws, which “require ICANN to carry out its activities in conformity with relevant principles of international law,” and do not specify or imply that the International Review Process provided for shall (or shall not) accord deference to the decisions of the ICANN Board. The fact that the Board is empowered to exercise its judgment in the application of ICANN’s sometimes competing core values does not necessarily import that that judgment must be treated deferentially by the IRP. In the view of the Panel, the judgments of the ICANN Board are to be reviewed and appraised by the Panel objectively, not deferentially. The business judgment rule of the law of California, applicable to directors of California corporations, profit and nonprofit, in the case of ICANN is to be treated as a default rule that might be called upon in the absence of relevant provisions of ICANN’s Articles and Bylaws and of specific representations of ICANN – as in the RFP – that bear on the propriety of its conduct. In the instant case, it is those Articles and Bylaws, and those representations, measured against the facts as the Panel finds them, which are determinative. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr(a)neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz<http://www.neustar.biz>

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Draft ATRT2 Recommendation Excerpts
by Larisa B. Gurnick Nov. 20, 2013

Nov. 20, 2013

Dear Review Team, Here is a link to the wiki where you can find the excerpt of all draft ATRT2 recommendations, the document that was used during the wrap-up session - https://community.icann.org/download/attachments/43975118/ATRT2%20Recommend… Please note that all components of the draft report are available in Word format on the wiki at https://community.icann.org/display/ATRT2/ATRT2+Report. Safe travels, Larisa B. Gurnick Consultant/Senior Director, Organizational Reviews Internet Corporation for Assigned Names and Numbers (ICANN) larisa.gurnick(a)icann.org<mailto:larisa.gurnick@icann.org> 310 383-8995

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Recommendation handouts
by Brian Cute Nov. 20, 2013

Nov. 20, 2013

Larisa, Would it be possible to have in hard copy just the Recommendations (including the GAC Recommendations that are now in the Executive Summary) for the ATRT2 team at our wrap up session today? I would like us to go through each of the Recommendations and agree on the ones that we will modify and how. Also to make assignments for drafting. If this cannot be arranged, please let me know. Thanks. Brian

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my notes 19 nov
by Avri Doria Nov. 20, 2013

Nov. 20, 2013

Afraid i am not much of a note taker. What I had actually meant was that we should send email records of any 1 on 1 comments we got from talking to people in the hallways etc. But in any case, here are my notes from the meetings. NPOC - Prioritization is subjective look at things that can involve cooperation - entire implementation study should be considered well, not just the recommendations - 10.3 equitable participation - visa issues - need to do something - while not UN or ITU but if it wants to be an International scope organization it needs to solve this problem. Need to collect information on umber of visas that have been refused. (Q for other SOAC also - is it worth an email from the ATRT asking for data?) (My question: should there be a recommendation that as part of agreeing on a location involves having a visa agreement for known volunteers and whether ICANN needs a visa officer) - procedures needed for charter development in cross-constitueny groups. (note: the issue of NPOC and NCSG is actually covered in the NCSG charter, I will bring this issue to the NCSG Executive Committee) - ways to keep a meeting from being captured by a single individual or group - readability and cross referencing in the final report - Issues of CEO accountability to the community NCUC - Reconsideration issues and appeals mechanims - unbalanced global representation - no transparency of most constituencies and SG in GNSO CSG - participation in WG - only 10% participate in 2 or more - emphasize this beyond the subcategory of cross community - public comment - how are they processed and taken in - owt - metrics - are they only operational ? - money from auctions a concern - recommendation for financial as a key element for strategic planing - visual mapping as part of exec summary - quantitative review of comments : metrics of how many, how many first time, home many others at the same time data to help persuade people that it is worth the time to do - prioritization in draft not clear. - decsion making should not overlap comment period. ALAC: - separate rec 2 into 2 - effect of compensation on the pools of candidates - what are the unanticipated consequences of compensation - awareness and capacity training for more informed comment - - language services + communications - needs to be understood by non experts - regions AND areas in 10.3 - how do we deal with the registry that can belong to many groups - registrar - globalization of the AOC - why is not between many governments. - ssac closed doors, perception that it is not global enough - 80% of reports he gets outside jurisdiction - problem of dealing with paid lobbyist when it trying to argue for the public interest - policy vs implementation - more important to get people involved than to crete barriers.

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