Forwarded in response to Jordan Carter’s email questions of 21 July 2015, Subject “CWG Confirmation - Fundamental Bylaws inclusions” From: Flanagan, Sharon [mailto:sflanagan@sidley.com] Sent: 22 July 2015 02:16 To: Client Committee <cwg-client@icann.org> Subject: Re: [client com] CWG Confirmation - Fundamental Bylaws inclusions Dear Client Committee, On the CCWG call today the question below was raised as to whether the Separation Review and PTI should be referenced in the CCWG list of fundamental bylaws. Our view is that both the Separation Review and PTI should be listed among the fundamental bylaws for the following reasons: 1. The Separation Review is part of the IFR, but we believe it should be specifically called out by referencing the Special IFR, the Separation Process and the SCWG. 2. With respect to PTI, unlike CSC and IFR which are created by the ICANN bylaws, PTI will have a separate legal existence and will not be created by the ICANN bylaws. Notwithstanding PTI’s separate legal existence, there are still implementation mechanisms that relate to PTI that should be contemplated by the ICANN bylaws. For example, as the sole member of PTI, ICANN will have certain statutory rights relative to PTI . In order to appropriately limit and direct the transfer and exercise of these membership rights by ICANN, provisions will need to be included in ICANN’s bylaws. These should be fundamental bylaws so that they cannot be easily changed. For example, - ICANN should not be able to change the composition of the PTI Board that is specified in the PTI articles and bylaws (it can change the people but not the designated seats); - ICANN should not be able to transfer the assets of PTI back to ICANN or to a new entity (absent a separation process that mandates a transfer); - ICANN should not be able to dissolve PTI, etc. In terms of how the Separation Process and PTI could be implemented in the CCWG proposal fundamental bylaw description attached, we have reflected our comments for CWG’s consideration. In addition, attached is a portion of the CCWG proposal that relates to the NTIA and CWG dependencies reflecting our proposed comments to the CWG dependencies section. Please let us know if you would like to discuss. Kinds regards, Sharon SHARON FLANAGAN Partner Sidley Austin LLP 555 California Street Suite 2000 San Francisco, CA 94104 +1.415.772.1271 sflanagan@sidley.com <mailto:sflanagan@sidley.com> <http://www.sidley.com> www.sidley.com <http://www.sidley.com/> SIDLEY AUSTIN LLP SHARON FLANAGAN Partner Sidley Austin LLP +1.415.772.1271 sflanagan@sidley.com <mailto:sflanagan@sidley.com> From: Jordan Carter [mailto:jordan@internetnz.net.nz] Sent: Tuesday, July 21, 2015 3:55 PM To: Jonathan Robinson; Lise Fuhr; Flanagan, Sharon Cc: ACCT-Staff; Thomas Rickert; León Felipe Sánchez Ambía; Mathieu Weill; Becky Burr; Steve DelBianco; Cheryl Langdon-Orr; Accountability Cross Community Subject: CWG Confirmation - Fundamental Bylaws inclusions Dear Jonathan, Lise, Sharon On the CCWG-Accountability call today, we discussed the fundamental bylaws paper and the relationship with the requirements of the CWG-Stewardship's proposal. There has been some discussion as to whether we should reference the PTI structure, and the Separation review, alongside the CSC and the IANA Functions Review in our Second Public Comment Report. The last two items have been in the draft for a while. The first two have come in and out and as you can see from the attached, are currently out. We are relaxed I think about including them or not including them but seek your formal guidance on the question -- and if you have any, specific guidance as to the right way to reference if they are included. I'd appreciate your feedback by close of play Wednesday UTC if possible so we can resolve this on the CCWG-Accountability's next call on Thursday 23rd. Many thanks, Jordan Carter Rapporteur, Work Party 1 (Community Empowerment) CCWG-Accountability -- **************************************************************************************************** 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. ****************************************************************************************************