James: The following remarks are my personal views, and I will share them with the BC Executive Committee and BC members prior to our September 29th meeting to assure that any statement I make/position I take at that meeting is consistent with the consensus within the BC. That said, I have some significant concerns about the wording of the draft Resolution, and shall now set them forth. Use of Budget Constraints to limit range of discussion within WGs_- Your cover note states, "I would like to draw your attention to WHEREAS #4 and RESOLVED #4, in which I attempted to capture the concerns raised by Phil and Paul and others regarding revisiting the subject of ICANN Jurisdiction in WS2". My comments on this draft resolution are solely my own and I will let Paul chime in, or not, as he sees fit. Whereas #4 states -- "The GNSO Council notes that many members of the GNSO community have expressed the view that the projected budget does not support revisiting the topic of the jurisdiction of ICANN"s organization." Resolved #4 states - "It is the position of the GNSO Council that revisiting the jurisdiction or organization of the ICANN legal entity, as established by CCWG-Accountability Work Stream 1, is not supported by this projected budget." My very public personal position on ICANN's organizational jurisdiction is that it was a mistake not to resolve this matter during WS1 (and the failure to do so is now being cited by Congressional critics of the IANA Transition), and that ICANN's U.S. incorporation should be enshrined in a Fundamental Bylaw as an expedited outcome of WS2. Notwithstanding that clear personal view, I have concerns about the proposed language cited above. For one thing, it is presently ambiguous - it is not clear whether the import of the language is that: * The projected budget should be increased so that "the topic of the jurisdiction of ICANN"s organization" can be revisited or addressed (the word "revisited" is also problematic, as it implies that some conclusive decision was made on this matter during WS2, whereas the record is to the contrary), or * The topic of organizational jurisdiction should be off-limits in WS2 due to budget constraints Again, my personal view is that this topic of ICANN's organizational jurisdiction should be further addressed in WS2 - and should be definitively resolved through the adoption of a Fundamental Bylaw enshrining US incorporation. Notwithstanding that personal view, I am opposed to any Resolution which takes the position that budget considerations should limit the scope of inquiry and discussion of any WS2 subgroup. The budget, and especially that for impartial outside legal expertise on accountability matters on which ICANN Legal may have an inherent bias (such as transparency or staff accountability) should be adequate to support the necessary work, rather than suggesting that the work should be constrained to fit within the scope of the budget. Adequacy of the budget for outside legal expertise The other problem I have with the draft Resolution is that it does not speak at all to the general concerns I and others have expressed about the adequacy of the budget for outside legal expertise for WS2 activities, as well as the proposed process for obtaining authorization of additional funding. My recollection is that the WS2 legal budget is just one-tenth of the amounts expended for WS1 -- $1.4M compared to $14M. I would certainly anticipate that WS2 outside legal expenses will be substantially less than in WS1 because major revisions and drafting of Bylaws and Articles of Incorporation will not be required. Yet there is still reason to believe that a 90% reduction is excessively severe and likely to fall short of requirements for a quality and fully considered work product. It is also my recollection that under the proposed budget and accompanying procedures, even if the Legal Committee agrees that additional funding is required at some point in the process, the Board has unbridled discretion and decisional authority to accept, reject, or modify such a request for additional funds. This is very troubling given that WS2 addresses such matters as organizational transparency, and Board and staff accountability. Therefore, at this time I cannot personally support the proposed language in Resolved clause #3 - "The GNSO Council expects the CCWG-Accountability and staff to work within the constraints of this approved budget, and that excess costs or request for additional funding will be considered only in extraordinary circumstances." (Emphasis added) An "extraordinary circumstances" standard for authorizing additional funds is, in my opinion, far too high given that the budget for WS2 was set by a small group and only put out for public reaction after the fact. Further, it is absolutely unacceptance as a standard for consideration of additional funding requests - every such request should be considered without bias on its own separate merits, and not face a high hurdle simply because it exceeds a legal assistance budget that some Council and community members already fear may be inadequate to support the necessary work delegated to WS2. Summing up, my personal view is that this Resolution should be modified to: 1. Eliminate any suggestion that discussion of ICANN's organizational locus of incorporation is off-limits for the Jurisdiction subgroup based upon budget considerations 2. Express general concern about the adequacy of the funds budgeted for outside legal assistance, as well as the proposed process for deciding whether additional funds should be allocated at a future point of time. I thank you and my fellow Councilors for considering these views, and look forward to further discussion of this matter. Regards, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of James M. Bladel Sent: Monday, September 19, 2016 4:02 PM To: GNSO Council List Subject: [council] Draft Motion - GNSO Validation of CCWG-Accountability Budget Request Council Colleagues - Attached and copied below, please find a draft motion for consideration during our next GNSO Council call (29 SEP), that examines the subject of the proposed budget & cost control mechanisms for CCWG-ACCT and Work Stream 2. In particular, I would like to draw your attention to WHEREAS #4 and RESOLVED #4, in which I attempted to capture the concerns raised by Phil and Paul and others regarding revisiting the subject of ICANN Jurisdiction in WS2. Please review these provisions closely, and make sure that they accurately reflect these points. Thank you, J. Draft Motion - GNSO Validation of CCWG-Accountability Budget Request WHEREAS, 1. Per its Charter, the Project Cost Support Team (PCST) has supported the CCWG-Accountability in developing a draft budget and cost-control processes for the CCWG-Accountability activities for FY17, and has also developed a historical analysis of all the transition costs to date (see https://gnso.icann.org/mailing-lists/archives/council/pdfpklU5q6Ojg.pdf). 2. The CCWG-Accountability FY17 budget was presented at its plenary meeting of June 21st and approved for transmission to the Chartering Organizations for validation as per the process agreed with the PCST. This request for validation was received on 23 June. 3. Following review and discussion during ICANN56, the GNSO Council requested<https://gnso.icann.org/en/correspondence/bladel-to-bfc-ccwg-accountability-chairs-10jul16-en.pdf> a webinar on this topic which was held on 23 August (see transcript at https://gnso.icann.org/en/meetings/transcript-ccwg-accountability-webinar-23..., recording at http://audio.icann.org/gnso/gnso-ccwg-accountability-webinar-23aug16-en.mp3 and AC recording at https://icann.adobeconnect.com/p8fu99qpt7d/). 4. The GNSO Council notes that many members of the GNSO community have expressed the view that the projected budget does not support revisiting the topic of the jurisdiction of ICANN"s organization. 5. The GNSO Council has discussed and reviewed all the relevant materials. RESOLVED, 1. The GNSO Council hereby accepts the proposed CCWG-Accountability FY17 budget, as well as the cost-control processes presented in conjunction with the CCWG budget (see https://gnso.icann.org/mailing-lists/archives/council/pdfpklU5q6Ojg.pdf). 2. The GNSO Council expects to receive regular updates on actual expenditures as tracked against this adopted budget, and reserves the right to provide further input on the budget allocation in relation to the CCWG-Accountability related activities. 3. The GNSO Council expects the CCWG-Accountability and staff to work within the constraints of this approved budget, and that excess costs or request for additional funding will be considered only in extraordinary circumstances. 4. It is the position of the GNSO Council that revisiting the jurisdiction or organization of the ICANN legal entity, as established by CCWG-Accountability Work Stream 1, is not supported by this projected budget. 5. The GNSO Council requests the GNSO Secretariat to communicate this resolution to the CCWG-Accountability Chairs, and to the office of the ICANN CFO. ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7797 / Virus Database: 4656/13026 - Release Date: 09/16/16