Re: [CWG-Stewardship] [client com] CWG Comment Letter - PTI Bylaws
Dear Jonathan, Dear Lise: I do not support this option. I consider that the constitution of PTI should be deferred until the Nominating Committee has made its appointments. Although I respect and admire the offer from the Co-Chairs to act as temporary alternates for the - not-yet-appointed - NomCom Directors, I would be concerned that you - as PTI Board members - would be subject to unreasonable and unmanageable pressures meanwhile, including in the election of a Chair of the PTI Board. In the light of recent experience, I note that CWG has been driven by a few very interested stakeholders towards a position that would facilitate, if not anticipate, an early separation of PTI from ICANN and its probable severance into two or three distinct entities, and that this orientation has been facilitated, if not explicitly supported, by CWG counsel. Whereas I am reasonable certain that this does not represent the opinion of a wide range of other stakeholders. Also, I suggest that it is time to call a halt to the vast volume of impenetrable legalese that has been generated in the matters of the PTI Bylaws, the licensing of IANA IPR, and the so-called Annexe C. Most of which is unnecessary for the Transition at this stage when - apparently - time is of the essence. Particularly as some of this material purports to address aspects of Internet management about which there are - to the best of my knowledge - no current concerns. Specifically, all discussion of the legal aspects of eventual separation, severance or separability, should be deferred until the Empowered Community has effectively taken a decision that we wish to move in that direction, the procedures for which having been defined in the Transition proposal. More generally, the Empowered Community, the PTI Board, and - dare I say so - CWG's Legal Counsel have, perforce to date, no experience in the implementation of the proposed Transition. I suggest that it would be prudent to let the Transition function, as proposed and approved, for 12 to 18 months before going any further. Meanwhile we should avoid proposals that are so detailed and abstract that they engender at best mistrust and at worst a fear of opportunism. Regards Christopher Wilkinson On 09 Aug 2016, at 17:30, Jonathan Robinson <jrobinson@afilias.info> wrote:
Hi Sharon.
The IOTF was simply put in place to provide a high-frequency touch point for ICANN staff as they worked on the implementation. The context for the introduction of the IOTF was the “secondment issue” whereby ICANN staff got too far ahead of the community in their implementation work. The IOTF had no decision making capabilities, these remained reserved for the CWG. Therefore, I am not sure it is necessary to reference the IOTF.
Accordingly, I would suggest rewording the below as:
· CWG-Stewardship Comment: The CWG recognized that the Nominating Committee process for selecting the PTI Nominating Committee Directors would not be in place prior to the transition and therefore recommended that the two directors be identified prior to the transition to serve in the interim until the first election of PTI directors. It was proposed that the Co-chairs of the CWG-Stewardship, Lise Fuhr and Jonathan Robinson, serve as the initial Nominating Committee Directors until the first election of the PTI directors. The CWG-Stewardship supports this proposal. Should these individuals be unable to serve, the CWG-Stewardship would select qualified alternate nominees, and appointment of these alternate nominees would be subject to ICANN’s approval (not to be unreasonably withheld, conditioned or delayed). The CWG-Stewardship proposes that Section 5.5.1 of the Draft PTI Bylaws be modified as set forth below to describe the process for selecting the initial Nominating Committee Directors to be in place at the time of transition.
Any comment from others?
Thanks,
Jonathan
From: Flanagan, Sharon [mailto:sflanagan@sidley.com] Sent: 09 August 2016 06:12 To: Client Committee <cwg-client@icann.org> Subject: [client com] FW: CWG Comment Letter - PTI Bylaws
Dear Client Committee,
Attached is a revised draft of the CWG comment letter to the PTI bylaws. This reflects revisions to #4 and #5 of the comment letter. Specifically, we have revised the draft to address the appointment of Lise and Jonathan as the initial non-ICANN PTI directors.
In particular, we would appreciate a review of the description of the IOTF work below for accuracy since we were not directly involved in those discussions.
Given the tight timing (comments are due on Thursday), we are sending this to you and ICANN legal simultaneously, and they may have further comments.
Best regards, Sharon
1. Initial Directors (Section 5.5.1)
· Text from Draft PTI Bylaws: For the appointment of the initial directors of PTI, Section 5.5.1 of the Draft PTI Bylaws provides as follows: “Other than Directors initially appointed by the incorporator of the Corporation (which Directors shall hold office until the first election of Directors) and the President of the Corporation, the Directors shall be elected by the Member at the annual meeting of the Corporation….”
· CWG-Stewardship Comment: In connection with the work of the Implementation Oversight Task Force, it was noted that the Nominating Committee process for selecting the PTI Nominating Committee Directors would not be in place prior to the transition and recommended that the two directors be identified prior to the transition to serve in the interim until the first election of PTI directors. It was recommended that the Co-chairs of the CWG-Stewardship, Lise Fuhr and Jonathan Robinson, serve as the initial Nominating Committee Directors until the first election of the PTI directors. The CWG-Stewardship supports this recommendation. Should these individuals be unable to serve, the CWG-Stewardship would select qualified alternate nominees, and appointment of these alternate nominees would be subject to ICANN’s approval (not to be unreasonably withheld, conditioned or delayed). The CWG-Stewardship proposes that Section 5.5.1 of the Draft PTI Bylaws be modified as set forth below to describe the process for selecting the initial Nominating Committee Directors to be in place at the time of transition.
“Each initial Director of the Corporation shall hold office until the first election of Directors for such Director’s seat. Other than The initial Directors initially shall be appointed by theMember incorporator of the Corporation (which Directors shall hold office until the first election of Directors), with the Cross Community Working Group to Develop an IANA Stewardship Transition Proposal on Naming Related Functions selecting two qualified nominees for appointment as the initial Nominating Committee Directors by the Member. Other than the initial Directors and the President of the Corporation, the Directors shall be elected by the Member at the annual meeting....”
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A few brief thoughts in response. 1. Don't let the perfect be the enemy of the good. PTI is a necessary element of the transaction and the Board is a element of the transition. What's suggested here would pull the entire Transition over to the side, at least until some workaround was developed. Initial Directors are commonplace in setting up new corporations. I trust that Jonathan and Lise, both with significant experience in senior management and board matters, will withstand whatever apocryphal pressure might be put upon them. 2. I'm not sure what a "very interested stakeholder" is. If this means a very dedicated stakeholder, who is very interested in assisting the community in achieving its goals and who will work on these matters in spite of personal and professional interests in doing other things, I'll admit to that. If this means someone who is operating in this CWG at the behest of "special interests" and whose actions are designed to advancing the undisclosed goals of those special interests, I categorically reject and resent that. (The latter description might apply to others, and that's reasonable; it's just not my position, and if you are referring to others, then I withdraw my sense of umbrage.) 3. Personally, I don't have any particular affinity for the PTI solution, and I was opposed to removing the IANA IPR from ICANN. Both of these were supported by the consensus of this group, as was the overall concept of enhancing "separability." On the latter point, I could have chosen to sulk and withdraw (or insist I was right long after it became an annoyance to the group). I chose neither; rather, I pitched in and worked on accomplishing the CWG's chosen goal to the best of my ability. I felt this was and is the right approach as a good community member and "multistakeholder." I won't speak for CWG counsel, but any counsel's role is to advise and caution on risks and concerns, and when the path is chosen, to assist the client in seeing it through. The fact that CWG's counsel is facilitating the chosen approach of the CWG is manifestly unexceptional; anything other than that would be peculiar, to say the least. Finally, to see in this some grand and concerted plan to dismantle ICANN (as the IANA) seems rather hypervigilant, to say the least. If someone has such a grand plan, I'm no better than a "useful idiot" in that regard. I wouldn't discount it entirely as someone's plan or goal (and I have had my own musings on that front, without naming names), but I do not ascribe it to some larger group (and certainly not any group of which I am a part). 4. The fact that legal documents (Bylaws, Articles of Incorporation, Agreements) contain legal language should not be shocking. "Legalese" is often a pejorative term, and I avoid it here to avoid misinterpretation. These documents are in fact necessary to implement the transition as designed. If anyone finds the documents "impenetrable" in whole or in part, I'm sure that Sidley would be more than happy to walk through the documents line by line and explain them all to you (at their usual hourly rate). (I might volunteer to do the same, but I've learned repeatedly that some who need such assistance are reject advice from a "participant" out of fear that the participant is "very interested" and thus would manipulate their explanations to serve some unseen agenda or master.) 5. At the risk of repeating myself, the idea of a simple transition, with no separability or designed-in anticipation of separation, was rejected in this group a long time ago, and after months of arduous discussion. I have not heard widespread discontent with that choice. Making a more complex choice obviously led to more complex implementation. I happen to think it's going quite well, though not without occasional bumps and hurdles. It's certainly not gone so pear-shaped that it should be scrapped. I will grant that for those "less interested" (in the non-pejorative sense of being less involved) may feel they have lost the thread a bit. If there are webinars or recap meetings that could help those who feel that way, it might be a good thing. Those who are lost, perplexed or confused often tend to imagine monsters around every bend where there's nothing to behold, and that should be avoided to the extent possible through explanation and edification. 6. The fact that various bodies have no experience with something that doesn't exist yet also seems rather obvious, but not one to engender massive changes at the last minute. That was rather to be expected, wasn't it? An alternate reality without reorganization and separability (or one where any work on that is shelved) has a certain charm and attraction in its relative simplicity. However, I see nothing in our current state of affairs that would support in any way a plan drastically dismantle something that has been approved by every community, the ICANN Board and the NTIA just for the sake of taking a deep breath and looking around a bit. On the other hand, I can imagine quite a number of negative consequences from doing so at this late date, or even attempting to do so. It's far better to make sure that we are "socializing" this plan as often as possible so that "monsters under the bed" of mistrust and opportunism can be pointed out to be mere dust balls that disintegrate just by blowing on them. Apologies for breaking my promise of brevity. Greg On Tue, Aug 9, 2016 at 1:01 PM, Christopher Wilkinson < lists@christopherwilkinson.eu> wrote:
Dear Jonathan, Dear Lise:
I do not support this option. I consider that the constitution of PTI should be deferred until the Nominating Committee has made its appointments. Although I respect and admire the offer from the Co-Chairs to act as temporary alternates for the - not-yet-appointed - NomCom Directors, I would be concerned that you - as PTI Board members - would be subject to unreasonable and unmanageable pressures meanwhile, including in the election of a Chair of the PTI Board.
In the light of recent experience, I note that CWG has been driven by a few very interested stakeholders towards a position that would facilitate, if not anticipate, an early separation of PTI from ICANN and its probable severance into two or three distinct entities, and that this orientation has been facilitated, if not explicitly supported, by CWG counsel. Whereas I am reasonable certain that this does not represent the opinion of a wide range of other stakeholders.
Also, I suggest that it is time to call a halt to the vast volume of impenetrable legalese that has been generated in the matters of the PTI Bylaws, the licensing of IANA IPR, and the so-called Annexe C. Most of which is unnecessary for the Transition at this stage when - apparently - time is of the essence. Particularly as some of this material purports to address aspects of Internet management about which there are - to the best of my knowledge - no current concerns. Specifically, all discussion of the legal aspects of eventual separation, severance or separability, should be deferred until the Empowered Community has effectively taken a decision that we wish to move in that direction, the procedures for which having been defined in the Transition proposal.
More generally, the Empowered Community, the PTI Board, and - dare I say so - CWG's Legal Counsel have, perforce to date, no experience in the implementation of the proposed Transition. I suggest that it would be prudent to let the Transition function, as proposed and approved, for 12 to 18 months before going any further. Meanwhile we should avoid proposals that are so detailed and abstract that they engender at best mistrust and at worst a fear of opportunism.
Regards
Christopher Wilkinson
On 09 Aug 2016, at 17:30, Jonathan Robinson <jrobinson@afilias.info> wrote:
Hi Sharon.
The IOTF was simply put in place to provide a high-frequency touch point for ICANN staff as they worked on the implementation. The context for the introduction of the IOTF was the “secondment issue” whereby ICANN staff got too far ahead of the community in their implementation work. The IOTF had no decision making capabilities, these remained reserved for the CWG. Therefore, I am not sure it is necessary to reference the IOTF.
Accordingly, I would suggest rewording the below as:
· *CWG-Stewardship Comment*: The CWG recognized that the Nominating Committee process for selecting the PTI Nominating Committee Directors would not be in place prior to the transition and therefore recommended that the two directors be identified prior to the transition to serve in the interim until the first election of PTI directors. It was proposed that the Co-chairs of the CWG-Stewardship, Lise Fuhr and Jonathan Robinson, serve as the initial Nominating Committee Directors until the first election of the PTI directors. The CWG-Stewardship supports this proposal. Should these individuals be unable to serve, the CWG-Stewardship would select qualified alternate nominees, and appointment of these alternate nominees would be subject to ICANN’s approval (not to be unreasonably withheld, conditioned or delayed). The CWG-Stewardship proposes that Section 5.5.1 of the Draft PTI Bylaws be modified as set forth below to describe the process for selecting the initial Nominating Committee Directors to be in place at the time of transition.
Any comment from others?
Thanks,
Jonathan
*From:* Flanagan, Sharon [mailto:sflanagan@sidley.com] *Sent:* 09 August 2016 06:12 *To:* Client Committee <cwg-client@icann.org> *Subject:* [client com] FW: CWG Comment Letter - PTI Bylaws
Dear Client Committee,
Attached is a revised draft of the CWG comment letter to the PTI bylaws. This reflects revisions to #4 and #5 of the comment letter. Specifically, we have revised the draft to address the appointment of Lise and Jonathan as the initial non-ICANN PTI directors.
In particular, we would appreciate a review of the description of the IOTF work below for accuracy since we were not directly involved in those discussions.
Given the tight timing (comments are due on Thursday), we are sending this to you and ICANN legal simultaneously, and they may have further comments.
Best regards, Sharon
*1. **Initial Directors (Section 5.5.1)*
· *Text from Draft PTI Bylaws**: *For the appointment of the initial directors of PTI, Section 5.5.1 of the Draft PTI Bylaws provides as follows: “Other than Directors initially appointed by the incorporator of the Corporation (which Directors shall hold office until the first election of Directors) and the President of the Corporation, the Directors shall be elected by the Member at the annual meeting of the Corporation….”
· *CWG-Stewardship Comment*: In connection with the work of the Implementation Oversight Task Force, it was noted that the Nominating Committee process for selecting the PTI Nominating Committee Directors would not be in place prior to the transition and recommended that the two directors be identified prior to the transition to serve in the interim until the first election of PTI directors. It was recommended that the Co-chairs of the CWG-Stewardship, Lise Fuhr and Jonathan Robinson, serve as the initial Nominating Committee Directors until the first election of the PTI directors. The CWG-Stewardship supports this recommendation. Should these individuals be unable to serve, the CWG-Stewardship would select qualified alternate nominees, and appointment of these alternate nominees would be subject to ICANN’s approval (not to be unreasonably withheld, conditioned or delayed). The CWG-Stewardship proposes that Section 5.5.1 of the Draft PTI Bylaws be modified as set forth below to describe the process for selecting the initial Nominating Committee Directors to be in place at the time of transition.
“*Each initial Director of the Corporation shall hold office until the first election of Directors for such Director’s seat. *Other than *The initial *Directors initially *shall be* appointed by the*Member* incorporator of the Corporation (which Directors shall hold office until the first election of Directors)*, with the Cross Community Working Group to Develop an IANA Stewardship Transition Proposal on Naming Related Functions selecting two qualified nominees for appointment as the initial Nominating Committee Directors by the Member. Other than the initial Directors* and the President of the Corporation, the Directors shall be elected by the Member at the annual meeting....”
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************************************************************ **************************************** _______________________________________________ Cwg-client mailing list Cwg-client@icann.org https://mm.icann.org/mailman/listinfo/cwg-client
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+ 1 Greg, noting of course that I am probably classified as one of the “few very interested stakeholders”. Actually, I think most of us or ‘very interested stakeholders’ or we wouldn’t have spent such inordinate amounts of time for the last nearly two years. My question of the WG is this: is this a one-off objection or is there support from others in the CWG for it? It is very disturbing that this objection is coming at this late time regardless of whether it was expressed previously or not. Unless I missed something, there was no significant objection in the CWG to seating Lise and Jonathan on the PTI Board initially. If I am correct, this seems like a case of someone trying to get another bite at the apple when they failed previously. p I fully respect Christopher’s opinion and his right to express it but I strongly disagree with it, especially at this terribly late stage in the process. Chuck From: cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Greg Shatan Sent: Tuesday, August 09, 2016 2:04 PM To: Christopher Wilkinson Cc: cwg-stewardship@icann.org IANA Subject: Re: [CWG-Stewardship] [client com] CWG Comment Letter - PTI Bylaws A few brief thoughts in response. 1. Don't let the perfect be the enemy of the good. PTI is a necessary element of the transaction and the Board is a element of the transition. What's suggested here would pull the entire Transition over to the side, at least until some workaround was developed. Initial Directors are commonplace in setting up new corporations. I trust that Jonathan and Lise, both with significant experience in senior management and board matters, will withstand whatever apocryphal pressure might be put upon them. 2. I'm not sure what a "very interested stakeholder" is. If this means a very dedicated stakeholder, who is very interested in assisting the community in achieving its goals and who will work on these matters in spite of personal and professional interests in doing other things, I'll admit to that. If this means someone who is operating in this CWG at the behest of "special interests" and whose actions are designed to advancing the undisclosed goals of those special interests, I categorically reject and resent that. (The latter description might apply to others, and that's reasonable; it's just not my position, and if you are referring to others, then I withdraw my sense of umbrage.) 3. Personally, I don't have any particular affinity for the PTI solution, and I was opposed to removing the IANA IPR from ICANN. Both of these were supported by the consensus of this group, as was the overall concept of enhancing "separability." On the latter point, I could have chosen to sulk and withdraw (or insist I was right long after it became an annoyance to the group). I chose neither; rather, I pitched in and worked on accomplishing the CWG's chosen goal to the best of my ability. I felt this was and is the right approach as a good community member and "multistakeholder." I won't speak for CWG counsel, but any counsel's role is to advise and caution on risks and concerns, and when the path is chosen, to assist the client in seeing it through. The fact that CWG's counsel is facilitating the chosen approach of the CWG is manifestly unexceptional; anything other than that would be peculiar, to say the least. Finally, to see in this some grand and concerted plan to dismantle ICANN (as the IANA) seems rather hypervigilant, to say the least. If someone has such a grand plan, I'm no better than a "useful idiot" in that regard. I wouldn't discount it entirely as someone's plan or goal (and I have had my own musings on that front, without naming names), but I do not ascribe it to some larger group (and certainly not any group of which I am a part). 4. The fact that legal documents (Bylaws, Articles of Incorporation, Agreements) contain legal language should not be shocking. "Legalese" is often a pejorative term, and I avoid it here to avoid misinterpretation. These documents are in fact necessary to implement the transition as designed. If anyone finds the documents "impenetrable" in whole or in part, I'm sure that Sidley would be more than happy to walk through the documents line by line and explain them all to you (at their usual hourly rate). (I might volunteer to do the same, but I've learned repeatedly that some who need such assistance are reject advice from a "participant" out of fear that the participant is "very interested" and thus would manipulate their explanations to serve some unseen agenda or master.) 5. At the risk of repeating myself, the idea of a simple transition, with no separability or designed-in anticipation of separation, was rejected in this group a long time ago, and after months of arduous discussion. I have not heard widespread discontent with that choice. Making a more complex choice obviously led to more complex implementation. I happen to think it's going quite well, though not without occasional bumps and hurdles. It's certainly not gone so pear-shaped that it should be scrapped. I will grant that for those "less interested" (in the non-pejorative sense of being less involved) may feel they have lost the thread a bit. If there are webinars or recap meetings that could help those who feel that way, it might be a good thing. Those who are lost, perplexed or confused often tend to imagine monsters around every bend where there's nothing to behold, and that should be avoided to the extent possible through explanation and edification. 6. The fact that various bodies have no experience with something that doesn't exist yet also seems rather obvious, but not one to engender massive changes at the last minute. That was rather to be expected, wasn't it? An alternate reality without reorganization and separability (or one where any work on that is shelved) has a certain charm and attraction in its relative simplicity. However, I see nothing in our current state of affairs that would support in any way a plan drastically dismantle something that has been approved by every community, the ICANN Board and the NTIA just for the sake of taking a deep breath and looking around a bit. On the other hand, I can imagine quite a number of negative consequences from doing so at this late date, or even attempting to do so. It's far better to make sure that we are "socializing" this plan as often as possible so that "monsters under the bed" of mistrust and opportunism can be pointed out to be mere dust balls that disintegrate just by blowing on them. Apologies for breaking my promise of brevity. Greg On Tue, Aug 9, 2016 at 1:01 PM, Christopher Wilkinson <lists@christopherwilkinson.eu<mailto:lists@christopherwilkinson.eu>> wrote: Dear Jonathan, Dear Lise: I do not support this option. I consider that the constitution of PTI should be deferred until the Nominating Committee has made its appointments. Although I respect and admire the offer from the Co-Chairs to act as temporary alternates for the - not-yet-appointed - NomCom Directors, I would be concerned that you - as PTI Board members - would be subject to unreasonable and unmanageable pressures meanwhile, including in the election of a Chair of the PTI Board. In the light of recent experience, I note that CWG has been driven by a few very interested stakeholders towards a position that would facilitate, if not anticipate, an early separation of PTI from ICANN and its probable severance into two or three distinct entities, and that this orientation has been facilitated, if not explicitly supported, by CWG counsel. Whereas I am reasonable certain that this does not represent the opinion of a wide range of other stakeholders. Also, I suggest that it is time to call a halt to the vast volume of impenetrable legalese that has been generated in the matters of the PTI Bylaws, the licensing of IANA IPR, and the so-called Annexe C. Most of which is unnecessary for the Transition at this stage when - apparently - time is of the essence. Particularly as some of this material purports to address aspects of Internet management about which there are - to the best of my knowledge - no current concerns. Specifically, all discussion of the legal aspects of eventual separation, severance or separability, should be deferred until the Empowered Community has effectively taken a decision that we wish to move in that direction, the procedures for which having been defined in the Transition proposal. More generally, the Empowered Community, the PTI Board, and - dare I say so - CWG's Legal Counsel have, perforce to date, no experience in the implementation of the proposed Transition. I suggest that it would be prudent to let the Transition function, as proposed and approved, for 12 to 18 months before going any further. Meanwhile we should avoid proposals that are so detailed and abstract that they engender at best mistrust and at worst a fear of opportunism. Regards Christopher Wilkinson On 09 Aug 2016, at 17:30, Jonathan Robinson <jrobinson@afilias.info<mailto:jrobinson@afilias.info>> wrote: Hi Sharon. The IOTF was simply put in place to provide a high-frequency touch point for ICANN staff as they worked on the implementation. The context for the introduction of the IOTF was the “secondment issue” whereby ICANN staff got too far ahead of the community in their implementation work. The IOTF had no decision making capabilities, these remained reserved for the CWG. Therefore, I am not sure it is necessary to reference the IOTF. Accordingly, I would suggest rewording the below as: • CWG-Stewardship Comment: The CWG recognized that the Nominating Committee process for selecting the PTI Nominating Committee Directors would not be in place prior to the transition and therefore recommended that the two directors be identified prior to the transition to serve in the interim until the first election of PTI directors. It was proposed that the Co-chairs of the CWG-Stewardship, Lise Fuhr and Jonathan Robinson, serve as the initial Nominating Committee Directors until the first election of the PTI directors. The CWG-Stewardship supports this proposal. Should these individuals be unable to serve, the CWG-Stewardship would select qualified alternate nominees, and appointment of these alternate nominees would be subject to ICANN’s approval (not to be unreasonably withheld, conditioned or delayed). The CWG-Stewardship proposes that Section 5.5.1 of the Draft PTI Bylaws be modified as set forth below to describe the process for selecting the initial Nominating Committee Directors to be in place at the time of transition. Any comment from others? Thanks, Jonathan From: Flanagan, Sharon [mailto:sflanagan@<mailto:sflanagan@>sidley.com<http://sidley.com>] Sent: 09 August 2016 06:12 To: Client Committee <cwg-client@icann.org<mailto:cwg-client@icann.org>> Subject: [client com] FW: CWG Comment Letter - PTI Bylaws Dear Client Committee, Attached is a revised draft of the CWG comment letter to the PTI bylaws. This reflects revisions to #4 and #5 of the comment letter. Specifically, we have revised the draft to address the appointment of Lise and Jonathan as the initial non-ICANN PTI directors. In particular, we would appreciate a review of the description of the IOTF work below for accuracy since we were not directly involved in those discussions. Given the tight timing (comments are due on Thursday), we are sending this to you and ICANN legal simultaneously, and they may have further comments. Best regards, Sharon 1. Initial Directors (Section 5.5.1) • Text from Draft PTI Bylaws: For the appointment of the initial directors of PTI, Section 5.5.1 of the Draft PTI Bylaws provides as follows: “Other than Directors initially appointed by the incorporator of the Corporation (which Directors shall hold office until the first election of Directors) and the President of the Corporation, the Directors shall be elected by the Member at the annual meeting of the Corporation….” • CWG-Stewardship Comment: In connection with the work of the Implementation Oversight Task Force, it was noted that the Nominating Committee process for selecting the PTI Nominating Committee Directors would not be in place prior to the transition and recommended that the two directors be identified prior to the transition to serve in the interim until the first election of PTI directors. It was recommended that the Co-chairs of the CWG-Stewardship, Lise Fuhr and Jonathan Robinson, serve as the initial Nominating Committee Directors until the first election of the PTI directors. The CWG-Stewardship supports this recommendation. Should these individuals be unable to serve, the CWG-Stewardship would select qualified alternate nominees, and appointment of these alternate nominees would be subject to ICANN’s approval (not to be unreasonably withheld, conditioned or delayed). The CWG-Stewardship proposes that Section 5.5.1 of the Draft PTI Bylaws be modified as set forth below to describe the process for selecting the initial Nominating Committee Directors to be in place at the time of transition. “Each initial Director of the Corporation shall hold office until the first election of Directors for such Director’s seat. Other than The initial Directors initially shall be appointed by theMember incorporator of the Corporation (which Directors shall hold office until the first election of Directors), with the Cross Community Working Group to Develop an IANA Stewardship Transition Proposal on Naming Related Functions selecting two qualified nominees for appointment as the initial Nominating Committee Directors by the Member. Other than the initial Directors and the President of the Corporation, the Directors shall be elected by the Member at the annual meeting....” **************************************************************************************************** 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. **************************************************************************************************** _______________________________________________ Cwg-client mailing list Cwg-client@icann.org<mailto:Cwg-client@icann.org> https://mm.icann.org/mailman/listinfo/cwg-client _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org<mailto:CWG-Stewardship@icann.org> https://mm.icann.org/mailman/listinfo/cwg-stewardship
+ 1 Chuck and Greg. In response to your question Chuck - no, I do not support the objection. Matthew On 09/08/2016 19:30, Gomes, Chuck wrote:
+ 1 Greg, noting of course that I am probably classified as one of the “few very interested stakeholders”. Actually, I think most of us or ‘very interested stakeholders’ or we wouldn’t have spent such inordinate amounts of time for the last nearly two years.
My question of the WG is this: is this a one-off objection or is there support from others in the CWG for it?
It is very disturbing that this objection is coming at this late time regardless of whether it was expressed previously or not. Unless I missed something, there was no significant objection in the CWG to seating Lise and Jonathan on the PTI Board initially. If I am correct, this seems like a case of someone trying to get another bite at the apple when they failed previously.
p
I fully respect Christopher’s opinion and his right to express it but I strongly disagree with it, especially at this terribly late stage in the process.
Chuck
*From:*cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship-bounces@icann.org] *On Behalf Of *Greg Shatan *Sent:* Tuesday, August 09, 2016 2:04 PM *To:* Christopher Wilkinson *Cc:* cwg-stewardship@icann.org IANA *Subject:* Re: [CWG-Stewardship] [client com] CWG Comment Letter - PTI Bylaws
A few brief thoughts in response.
1. Don't let the perfect be the enemy of the good. PTI is a necessary element of the transaction and the Board is a element of the transition. What's suggested here would pull the entire Transition over to the side, at least until some workaround was developed. Initial Directors are commonplace in setting up new corporations. I trust that Jonathan and Lise, both with significant experience in senior management and board matters, will withstand whatever apocryphal pressure might be put upon them.
2. I'm not sure what a "very interested stakeholder" is. If this means a very dedicated stakeholder, who is very interested in assisting the community in achieving its goals and who will work on these matters in spite of personal and professional interests in doing other things, I'll admit to that. If this means someone who is operating in this CWG at the behest of "special interests" and whose actions are designed to advancing the undisclosed goals of those special interests, I categorically reject and resent that. (The latter description might apply to others, and that's reasonable; it's just not my position, and if you are referring to others, then I withdraw my sense of umbrage.)
3. Personally, I don't have any particular affinity for the PTI solution, and I was opposed to removing the IANA IPR from ICANN. Both of these were supported by the consensus of this group, as was the overall concept of enhancing "separability." On the latter point, I could have chosen to sulk and withdraw (or insist I was right long after it became an annoyance to the group). I chose neither; rather, I pitched in and worked on accomplishing the CWG's chosen goal to the best of my ability. I felt this was and is the right approach as a good community member and "multistakeholder." I won't speak for CWG counsel, but any counsel's role is to advise and caution on risks and concerns, and when the path is chosen, to assist the client in seeing it through. The fact that CWG's counsel is facilitating the chosen approach of the CWG is manifestly unexceptional; anything other than that would be peculiar, to say the least. Finally, to see in this some grand and concerted plan to dismantle ICANN (as the IANA) seems rather hypervigilant, to say the least. If someone has such a grand plan, I'm no better than a "useful idiot" in that regard. I wouldn't discount it entirely as someone's plan or goal (and I have had my own musings on that front, without naming names), but I do not ascribe it to some larger group (and certainly not any group of which I am a part).
4. The fact that legal documents (Bylaws, Articles of Incorporation, Agreements) contain legal language should not be shocking. "Legalese" is often a pejorative term, and I avoid it here to avoid misinterpretation. These documents are in fact necessary to implement the transition as designed. If anyone finds the documents "impenetrable" in whole or in part, I'm sure that Sidley would be more than happy to walk through the documents line by line and explain them all to you (at their usual hourly rate). (I might volunteer to do the same, but I've learned repeatedly that some who need such assistance are reject advice from a "participant" out of fear that the participant is "very interested" and thus would manipulate their explanations to serve some unseen agenda or master.)
5. At the risk of repeating myself, the idea of a simple transition, with no separability or designed-in anticipation of separation, was rejected in this group a long time ago, and after months of arduous discussion. I have not heard widespread discontent with that choice. Making a more complex choice obviously led to more complex implementation. I happen to think it's going quite well, though not without occasional bumps and hurdles. It's certainly not gone so pear-shaped that it should be scrapped. I will grant that for those "less interested" (in the non-pejorative sense of being less involved) may feel they have lost the thread a bit. If there are webinars or recap meetings that could help those who feel that way, it might be a good thing. Those who are lost, perplexed or confused often tend to imagine monsters around every bend where there's nothing to behold, and that should be avoided to the extent possible through explanation and edification.
6. The fact that various bodies have no experience with something that doesn't exist yet also seems rather obvious, but not one to engender massive changes at the last minute. That was rather to be expected, wasn't it? An alternate reality without reorganization and separability (or one where any work on that is shelved) has a certain charm and attraction in its relative simplicity. However, I see nothing in our current state of affairs that would support in any way a plan drastically dismantle something that has been approved by every community, the ICANN Board and the NTIA just for the sake of taking a deep breath and looking around a bit. On the other hand, I can imagine quite a number of negative consequences from doing so at this late date, or even attempting to do so. It's far better to make sure that we are "socializing" this plan as often as possible so that "monsters under the bed" of mistrust and opportunism can be pointed out to be mere dust balls that disintegrate just by blowing on them.
Apologies for breaking my promise of brevity.
Greg
On Tue, Aug 9, 2016 at 1:01 PM, Christopher Wilkinson <lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu>> wrote:
Dear Jonathan, Dear Lise:
I do not support this option. I consider that the constitution of PTI should be deferred until the Nominating Committee has made its appointments.
Although I respect and admire the offer from the Co-Chairs to act as temporary alternates for the - not-yet-appointed - NomCom Directors, I would be concerned that you - as PTI Board members - would be subject to unreasonable and unmanageable pressures meanwhile, including in the election of a Chair of the PTI Board.
In the light of recent experience, I note that CWG has been driven by a few very interested stakeholders towards a position that would facilitate, if not anticipate, an early separation of PTI from ICANN and its probable severance into two or three distinct entities, and that this orientation has been facilitated, if not explicitly supported, by CWG counsel. Whereas I am reasonable certain that this does not represent the opinion of a wide range of other stakeholders.
Also, I suggest that it is time to call a halt to the vast volume of impenetrable legalese that has been generated in the matters of the PTI Bylaws, the licensing of IANA IPR, and the so-called Annexe C. Most of which is unnecessary for the Transition at this stage when - apparently - time is of the essence. Particularly as some of this material purports to address aspects of Internet management about which there are - to the best of my knowledge - no current concerns. Specifically, all discussion of the legal aspects of eventual separation, severance or separability, should be deferred until the Empowered Community has effectively taken a decision that we wish to move in that direction, the procedures for which having been defined in the Transition proposal.
More generally, the Empowered Community, the PTI Board, and - dare I say so - CWG's Legal Counsel have, perforce to date, no experience in the implementation of the proposed Transition.
I suggest that it would be prudent to let the Transition function, as proposed and approved, for 12 to 18 months before going any further. Meanwhile we should avoid proposals that are so detailed and abstract that they engender at best mistrust and at worst a fear of opportunism.
Regards
Christopher Wilkinson
On 09 Aug 2016, at 17:30, Jonathan Robinson <jrobinson@afilias.info <mailto:jrobinson@afilias.info>> wrote:
Hi Sharon.
The IOTF was simply put in place to provide a high-frequency touch point for ICANN staff as they worked on the implementation. The context for the introduction of the IOTF was the “secondment issue” whereby ICANN staff got too far ahead of the community in their implementation work. The IOTF had no decision making capabilities, these remained reserved for the CWG. Therefore, I am not sure it is necessary to reference the IOTF.
Accordingly, I would suggest rewording the below as:
·*/CWG-Stewardship Comment/*: The CWG recognized that the Nominating Committee process for selecting the PTI Nominating Committee Directors would not be in place prior to the transition and therefore recommended that the two directors be identified prior to the transition to serve in the interim until the first election of PTI directors. It was proposed that the Co-chairs of the CWG-Stewardship, Lise Fuhr and Jonathan Robinson, serve as the initial Nominating Committee Directors until the first election of the PTI directors. The CWG-Stewardship supports this proposal. Should these individuals be unable to serve, the CWG-Stewardship would select qualified alternate nominees, and appointment of these alternate nominees would be subject to ICANN’s approval (not to be unreasonably withheld, conditioned or delayed). The CWG-Stewardship proposes that Section 5.5.1 of the Draft PTI Bylaws be modified as set forth below to describe the process for selecting the initial Nominating Committee Directors to be in place at the time of transition.
Any comment from others?
Thanks,
Jonathan
*From:* Flanagan, Sharon [mailto:sflanagan@ <mailto:sflanagan@>sidley.com <http://sidley.com>] *Sent:* 09 August 2016 06:12 *To:* Client Committee <cwg-client@icann.org <mailto:cwg-client@icann.org>> *Subject:* [client com] FW: CWG Comment Letter - PTI Bylaws
Dear Client Committee,
Attached is a revised draft of the CWG comment letter to the PTI bylaws. This reflects revisions to #4 and #5 of the comment letter. Specifically, we have revised the draft to address the appointment of Lise and Jonathan as the initial non-ICANN PTI directors.
In particular, we would appreciate a review of the description of the IOTF work below for accuracy since we were not directly involved in those discussions.
Given the tight timing (comments are due on Thursday), we are sending this to you and ICANN legal simultaneously, and they may have further comments.
Best regards, Sharon
*1.**Initial Directors (Section 5.5.1)*
**
·*/Text from Draft PTI Bylaws/: *For the appointment of the initial directors of PTI, Section 5.5.1 of the Draft PTI Bylaws provides as follows: “Other than Directors initially appointed by the incorporator of the Corporation (which Directors shall hold office until the first election of Directors) and the President of the Corporation, the Directors shall be elected by the Member at the annual meeting of the Corporation….”
·*/CWG-Stewardship Comment/*: In connection with the work of the Implementation Oversight Task Force, it was noted that the Nominating Committee process for selecting the PTI Nominating Committee Directors would not be in place prior to the transition and recommended that the two directors be identified prior to the transition to serve in the interim until the first election of PTI directors. It was recommended that the Co-chairs of the CWG-Stewardship, Lise Fuhr and Jonathan Robinson, serve as the initial Nominating Committee Directors until the first election of the PTI directors. The CWG-Stewardship supports this recommendation. Should these individuals be unable to serve, the CWG-Stewardship would select qualified alternate nominees, and appointment of these alternate nominees would be subject to ICANN’s approval (not to be unreasonably withheld, conditioned or delayed). The CWG-Stewardship proposes that Section 5.5.1 of the Draft PTI Bylaws be modified as set forth below to describe the process for selecting the initial Nominating Committee Directors to be in place at the time of transition.
“_Each initial Director of the Corporation shall hold office until the first election of Directors for such Director’s seat. _Other than _The initial _Directors initially _shall be_ appointed by the_Member_ incorporator of the Corporation (which Directors shall hold office until the first election of Directors)_, with the Cross Community Working Group to Develop an IANA Stewardship Transition Proposal on Naming Related Functions selecting two qualified nominees for appointment as the initial Nominating Committee Directors by the Member. Other than the initial Directors_ and the President of the Corporation, the Directors shall be elected by the Member at the annual meeting....”
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-- -------------- Matthew Shears Global Internet Policy and Human Rights Center for Democracy & Technology (CDT) + 44 771 2472987
Let me echo Matthew's comment by saying that I support Chuck and Greg and do not support the objection. Allan From: cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of matthew shears Sent: August-09-16 2:37 PM To: Gomes, Chuck; Greg Shatan; Christopher Wilkinson Cc: cwg-stewardship@icann.org IANA Subject: Re: [CWG-Stewardship] [client com] CWG Comment Letter - PTI Bylaws + 1 Chuck and Greg. In response to your question Chuck - no, I do not support the objection. Matthew On 09/08/2016 19:30, Gomes, Chuck wrote: + 1 Greg, noting of course that I am probably classified as one of the "few very interested stakeholders". Actually, I think most of us or 'very interested stakeholders' or we wouldn't have spent such inordinate amounts of time for the last nearly two years. My question of the WG is this: is this a one-off objection or is there support from others in the CWG for it? It is very disturbing that this objection is coming at this late time regardless of whether it was expressed previously or not. Unless I missed something, there was no significant objection in the CWG to seating Lise and Jonathan on the PTI Board initially. If I am correct, this seems like a case of someone trying to get another bite at the apple when they failed previously. p I fully respect Christopher's opinion and his right to express it but I strongly disagree with it, especially at this terribly late stage in the process. Chuck From: cwg-stewardship-bounces@icann.org<mailto:cwg-stewardship-bounces@icann.org> [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Greg Shatan Sent: Tuesday, August 09, 2016 2:04 PM To: Christopher Wilkinson Cc: cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org> IANA Subject: Re: [CWG-Stewardship] [client com] CWG Comment Letter - PTI Bylaws A few brief thoughts in response. 1. Don't let the perfect be the enemy of the good. PTI is a necessary element of the transaction and the Board is a element of the transition. What's suggested here would pull the entire Transition over to the side, at least until some workaround was developed. Initial Directors are commonplace in setting up new corporations. I trust that Jonathan and Lise, both with significant experience in senior management and board matters, will withstand whatever apocryphal pressure might be put upon them. 2. I'm not sure what a "very interested stakeholder" is. If this means a very dedicated stakeholder, who is very interested in assisting the community in achieving its goals and who will work on these matters in spite of personal and professional interests in doing other things, I'll admit to that. If this means someone who is operating in this CWG at the behest of "special interests" and whose actions are designed to advancing the undisclosed goals of those special interests, I categorically reject and resent that. (The latter description might apply to others, and that's reasonable; it's just not my position, and if you are referring to others, then I withdraw my sense of umbrage.) 3. Personally, I don't have any particular affinity for the PTI solution, and I was opposed to removing the IANA IPR from ICANN. Both of these were supported by the consensus of this group, as was the overall concept of enhancing "separability." On the latter point, I could have chosen to sulk and withdraw (or insist I was right long after it became an annoyance to the group). I chose neither; rather, I pitched in and worked on accomplishing the CWG's chosen goal to the best of my ability. I felt this was and is the right approach as a good community member and "multistakeholder." I won't speak for CWG counsel, but any counsel's role is to advise and caution on risks and concerns, and when the path is chosen, to assist the client in seeing it through. The fact that CWG's counsel is facilitating the chosen approach of the CWG is manifestly unexceptional; anything other than that would be peculiar, to say the least. Finally, to see in this some grand and concerted plan to dismantle ICANN (as the IANA) seems rather hypervigilant, to say the least. If someone has such a grand plan, I'm no better than a "useful idiot" in that regard. I wouldn't discount it entirely as someone's plan or goal (and I have had my own musings on that front, without naming names), but I do not ascribe it to some larger group (and certainly not any group of which I am a part). 4. The fact that legal documents (Bylaws, Articles of Incorporation, Agreements) contain legal language should not be shocking. "Legalese" is often a pejorative term, and I avoid it here to avoid misinterpretation. These documents are in fact necessary to implement the transition as designed. If anyone finds the documents "impenetrable" in whole or in part, I'm sure that Sidley would be more than happy to walk through the documents line by line and explain them all to you (at their usual hourly rate). (I might volunteer to do the same, but I've learned repeatedly that some who need such assistance are reject advice from a "participant" out of fear that the participant is "very interested" and thus would manipulate their explanations to serve some unseen agenda or master.) 5. At the risk of repeating myself, the idea of a simple transition, with no separability or designed-in anticipation of separation, was rejected in this group a long time ago, and after months of arduous discussion. I have not heard widespread discontent with that choice. Making a more complex choice obviously led to more complex implementation. I happen to think it's going quite well, though not without occasional bumps and hurdles. It's certainly not gone so pear-shaped that it should be scrapped. I will grant that for those "less interested" (in the non-pejorative sense of being less involved) may feel they have lost the thread a bit. If there are webinars or recap meetings that could help those who feel that way, it might be a good thing. Those who are lost, perplexed or confused often tend to imagine monsters around every bend where there's nothing to behold, and that should be avoided to the extent possible through explanation and edification. 6. The fact that various bodies have no experience with something that doesn't exist yet also seems rather obvious, but not one to engender massive changes at the last minute. That was rather to be expected, wasn't it? An alternate reality without reorganization and separability (or one where any work on that is shelved) has a certain charm and attraction in its relative simplicity. However, I see nothing in our current state of affairs that would support in any way a plan drastically dismantle something that has been approved by every community, the ICANN Board and the NTIA just for the sake of taking a deep breath and looking around a bit. On the other hand, I can imagine quite a number of negative consequences from doing so at this late date, or even attempting to do so. It's far better to make sure that we are "socializing" this plan as often as possible so that "monsters under the bed" of mistrust and opportunism can be pointed out to be mere dust balls that disintegrate just by blowing on them. Apologies for breaking my promise of brevity. Greg On Tue, Aug 9, 2016 at 1:01 PM, Christopher Wilkinson <lists@christopherwilkinson.eu<mailto:lists@christopherwilkinson.eu>> wrote: Dear Jonathan, Dear Lise: I do not support this option. I consider that the constitution of PTI should be deferred until the Nominating Committee has made its appointments. Although I respect and admire the offer from the Co-Chairs to act as temporary alternates for the - not-yet-appointed - NomCom Directors, I would be concerned that you - as PTI Board members - would be subject to unreasonable and unmanageable pressures meanwhile, including in the election of a Chair of the PTI Board. In the light of recent experience, I note that CWG has been driven by a few very interested stakeholders towards a position that would facilitate, if not anticipate, an early separation of PTI from ICANN and its probable severance into two or three distinct entities, and that this orientation has been facilitated, if not explicitly supported, by CWG counsel. Whereas I am reasonable certain that this does not represent the opinion of a wide range of other stakeholders. Also, I suggest that it is time to call a halt to the vast volume of impenetrable legalese that has been generated in the matters of the PTI Bylaws, the licensing of IANA IPR, and the so-called Annexe C. Most of which is unnecessary for the Transition at this stage when - apparently - time is of the essence. Particularly as some of this material purports to address aspects of Internet management about which there are - to the best of my knowledge - no current concerns. Specifically, all discussion of the legal aspects of eventual separation, severance or separability, should be deferred until the Empowered Community has effectively taken a decision that we wish to move in that direction, the procedures for which having been defined in the Transition proposal. More generally, the Empowered Community, the PTI Board, and - dare I say so - CWG's Legal Counsel have, perforce to date, no experience in the implementation of the proposed Transition. I suggest that it would be prudent to let the Transition function, as proposed and approved, for 12 to 18 months before going any further. Meanwhile we should avoid proposals that are so detailed and abstract that they engender at best mistrust and at worst a fear of opportunism. Regards Christopher Wilkinson On 09 Aug 2016, at 17:30, Jonathan Robinson <jrobinson@afilias.info<mailto:jrobinson@afilias.info>> wrote: Hi Sharon. The IOTF was simply put in place to provide a high-frequency touch point for ICANN staff as they worked on the implementation. The context for the introduction of the IOTF was the "secondment issue" whereby ICANN staff got too far ahead of the community in their implementation work. The IOTF had no decision making capabilities, these remained reserved for the CWG. Therefore, I am not sure it is necessary to reference the IOTF. Accordingly, I would suggest rewording the below as: * CWG-Stewardship Comment: The CWG recognized that the Nominating Committee process for selecting the PTI Nominating Committee Directors would not be in place prior to the transition and therefore recommended that the two directors be identified prior to the transition to serve in the interim until the first election of PTI directors. It was proposed that the Co-chairs of the CWG-Stewardship, Lise Fuhr and Jonathan Robinson, serve as the initial Nominating Committee Directors until the first election of the PTI directors. The CWG-Stewardship supports this proposal. Should these individuals be unable to serve, the CWG-Stewardship would select qualified alternate nominees, and appointment of these alternate nominees would be subject to ICANN's approval (not to be unreasonably withheld, conditioned or delayed). The CWG-Stewardship proposes that Section 5.5.1 of the Draft PTI Bylaws be modified as set forth below to describe the process for selecting the initial Nominating Committee Directors to be in place at the time of transition. Any comment from others? Thanks, Jonathan From: Flanagan, Sharon [mailto:sflanagan@<mailto:sflanagan@>sidley.com<http://sidley.com>] Sent: 09 August 2016 06:12 To: Client Committee <cwg-client@icann.org<mailto:cwg-client@icann.org>> Subject: [client com] FW: CWG Comment Letter - PTI Bylaws Dear Client Committee, Attached is a revised draft of the CWG comment letter to the PTI bylaws. This reflects revisions to #4 and #5 of the comment letter. Specifically, we have revised the draft to address the appointment of Lise and Jonathan as the initial non-ICANN PTI directors. In particular, we would appreciate a review of the description of the IOTF work below for accuracy since we were not directly involved in those discussions. Given the tight timing (comments are due on Thursday), we are sending this to you and ICANN legal simultaneously, and they may have further comments. Best regards, Sharon 1. Initial Directors (Section 5.5.1) * Text from Draft PTI Bylaws: For the appointment of the initial directors of PTI, Section 5.5.1 of the Draft PTI Bylaws provides as follows: "Other than Directors initially appointed by the incorporator of the Corporation (which Directors shall hold office until the first election of Directors) and the President of the Corporation, the Directors shall be elected by the Member at the annual meeting of the Corporation...." * CWG-Stewardship Comment: In connection with the work of the Implementation Oversight Task Force, it was noted that the Nominating Committee process for selecting the PTI Nominating Committee Directors would not be in place prior to the transition and recommended that the two directors be identified prior to the transition to serve in the interim until the first election of PTI directors. It was recommended that the Co-chairs of the CWG-Stewardship, Lise Fuhr and Jonathan Robinson, serve as the initial Nominating Committee Directors until the first election of the PTI directors. The CWG-Stewardship supports this recommendation. Should these individuals be unable to serve, the CWG-Stewardship would select qualified alternate nominees, and appointment of these alternate nominees would be subject to ICANN's approval (not to be unreasonably withheld, conditioned or delayed). The CWG-Stewardship proposes that Section 5.5.1 of the Draft PTI Bylaws be modified as set forth below to describe the process for selecting the initial Nominating Committee Directors to be in place at the time of transition. "Each initial Director of the Corporation shall hold office until the first election of Directors for such Director's seat. Other than The initial Directors initially shall be appointed by theMember incorporator of the Corporation (which Directors shall hold office until the first election of Directors), with the Cross Community Working Group to Develop an IANA Stewardship Transition Proposal on Naming Related Functions selecting two qualified nominees for appointment as the initial Nominating Committee Directors by the Member. Other than the initial Directors and the President of the Corporation, the Directors shall be elected by the Member at the annual meeting...." **************************************************************************************************** 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. **************************************************************************************************** _______________________________________________ Cwg-client mailing list Cwg-client@icann.org<mailto:Cwg-client@icann.org> https://mm.icann.org/mailman/listinfo/cwg-client _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org<mailto:CWG-Stewardship@icann.org> https://mm.icann.org/mailman/listinfo/cwg-stewardship _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org<mailto:CWG-Stewardship@icann.org> https://mm.icann.org/mailman/listinfo/cwg-stewardship -- -------------- Matthew Shears Global Internet Policy and Human Rights Center for Democracy & Technology (CDT) + 44 771 2472987
Hi, I also do not support the objection. I think the comments were, heard, understood and responded to. I accept the explanation both as it refers to: - allowing the RIRs to define how they make decisions. As I understand it, this requirement for unanimity is central to their notions of how they cooperate. - the use of the phrase"joint and several." In fact I am sure my partner have I have signed a few things, such as insurance agreements and ownership papers that use this very construction. I also continue to support the proposal that our co-chairs, who have led us with great neutrality, in the initial PTI Director spots. The Nomcom is not set up to make a rapid appointment in this matter. I have no impression that they are trying o hurry separation, but rather that they are adhering to the principle of separability as decided by the group. avri On 09-Aug-16 14:41, Allan MacGillivray wrote:
Let me echo Matthew’s comment by saying that I support Chuck and Greg and do not support the objection.
Allan
*From:*cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship-bounces@icann.org] *On Behalf Of *matthew shears *Sent:* August-09-16 2:37 PM *To:* Gomes, Chuck; Greg Shatan; Christopher Wilkinson *Cc:* cwg-stewardship@icann.org IANA *Subject:* Re: [CWG-Stewardship] [client com] CWG Comment Letter - PTI Bylaws
+ 1 Chuck and Greg. In response to your question Chuck - no, I do not support the objection.
Matthew
On 09/08/2016 19:30, Gomes, Chuck wrote:
+ 1 Greg, noting of course that I am probably classified as one of the “few very interested stakeholders”. Actually, I think most of us or ‘very interested stakeholders’ or we wouldn’t have spent such inordinate amounts of time for the last nearly two years.
My question of the WG is this: is this a one-off objection or is there support from others in the CWG for it?
It is very disturbing that this objection is coming at this late time regardless of whether it was expressed previously or not. Unless I missed something, there was no significant objection in the CWG to seating Lise and Jonathan on the PTI Board initially. If I am correct, this seems like a case of someone trying to get another bite at the apple when they failed previously.
p
I fully respect Christopher’s opinion and his right to express it but I strongly disagree with it, especially at this terribly late stage in the process.
Chuck
*From:*cwg-stewardship-bounces@icann.org <mailto:cwg-stewardship-bounces@icann.org> [mailto:cwg-stewardship-bounces@icann.org] *On Behalf Of *Greg Shatan *Sent:* Tuesday, August 09, 2016 2:04 PM *To:* Christopher Wilkinson *Cc:* cwg-stewardship@icann.org <mailto:cwg-stewardship@icann.org> IANA *Subject:* Re: [CWG-Stewardship] [client com] CWG Comment Letter - PTI Bylaws
A few brief thoughts in response.
1. Don't let the perfect be the enemy of the good. PTI is a necessary element of the transaction and the Board is a element of the transition. What's suggested here would pull the entire Transition over to the side, at least until some workaround was developed. Initial Directors are commonplace in setting up new corporations. I trust that Jonathan and Lise, both with significant experience in senior management and board matters, will withstand whatever apocryphal pressure might be put upon them.
2. I'm not sure what a "very interested stakeholder" is. If this means a very dedicated stakeholder, who is very interested in assisting the community in achieving its goals and who will work on these matters in spite of personal and professional interests in doing other things, I'll admit to that. If this means someone who is operating in this CWG at the behest of "special interests" and whose actions are designed to advancing the undisclosed goals of those special interests, I categorically reject and resent that. (The latter description might apply to others, and that's reasonable; it's just not my position, and if you are referring to others, then I withdraw my sense of umbrage.)
3. Personally, I don't have any particular affinity for the PTI solution, and I was opposed to removing the IANA IPR from ICANN. Both of these were supported by the consensus of this group, as was the overall concept of enhancing "separability." On the latter point, I could have chosen to sulk and withdraw (or insist I was right long after it became an annoyance to the group). I chose neither; rather, I pitched in and worked on accomplishing the CWG's chosen goal to the best of my ability. I felt this was and is the right approach as a good community member and "multistakeholder." I won't speak for CWG counsel, but any counsel's role is to advise and caution on risks and concerns, and when the path is chosen, to assist the client in seeing it through. The fact that CWG's counsel is facilitating the chosen approach of the CWG is manifestly unexceptional; anything other than that would be peculiar, to say the least. Finally, to see in this some grand and concerted plan to dismantle ICANN (as the IANA) seems rather hypervigilant, to say the least. If someone has such a grand plan, I'm no better than a "useful idiot" in that regard. I wouldn't discount it entirely as someone's plan or goal (and I have had my own musings on that front, without naming names), but I do not ascribe it to some larger group (and certainly not any group of which I am a part).
4. The fact that legal documents (Bylaws, Articles of Incorporation, Agreements) contain legal language should not be shocking. "Legalese" is often a pejorative term, and I avoid it here to avoid misinterpretation. These documents are in fact necessary to implement the transition as designed. If anyone finds the documents "impenetrable" in whole or in part, I'm sure that Sidley would be more than happy to walk through the documents line by line and explain them all to you (at their usual hourly rate). (I might volunteer to do the same, but I've learned repeatedly that some who need such assistance are reject advice from a "participant" out of fear that the participant is "very interested" and thus would manipulate their explanations to serve some unseen agenda or master.)
5. At the risk of repeating myself, the idea of a simple transition, with no separability or designed-in anticipation of separation, was rejected in this group a long time ago, and after months of arduous discussion. I have not heard widespread discontent with that choice. Making a more complex choice obviously led to more complex implementation. I happen to think it's going quite well, though not without occasional bumps and hurdles. It's certainly not gone so pear-shaped that it should be scrapped. I will grant that for those "less interested" (in the non-pejorative sense of being less involved) may feel they have lost the thread a bit. If there are webinars or recap meetings that could help those who feel that way, it might be a good thing. Those who are lost, perplexed or confused often tend to imagine monsters around every bend where there's nothing to behold, and that should be avoided to the extent possible through explanation and edification.
6. The fact that various bodies have no experience with something that doesn't exist yet also seems rather obvious, but not one to engender massive changes at the last minute. That was rather to be expected, wasn't it? An alternate reality without reorganization and separability (or one where any work on that is shelved) has a certain charm and attraction in its relative simplicity. However, I see nothing in our current state of affairs that would support in any way a plan drastically dismantle something that has been approved by every community, the ICANN Board and the NTIA just for the sake of taking a deep breath and looking around a bit. On the other hand, I can imagine quite a number of negative consequences from doing so at this late date, or even attempting to do so. It's far better to make sure that we are "socializing" this plan as often as possible so that "monsters under the bed" of mistrust and opportunism can be pointed out to be mere dust balls that disintegrate just by blowing on them.
Apologies for breaking my promise of brevity.
Greg
On Tue, Aug 9, 2016 at 1:01 PM, Christopher Wilkinson <lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu>> wrote:
Dear Jonathan, Dear Lise:
I do not support this option. I consider that the constitution of PTI should be deferred until the Nominating Committee has made its appointments.
Although I respect and admire the offer from the Co-Chairs to act as temporary alternates for the - not-yet-appointed - NomCom Directors, I would be concerned that you - as PTI Board members - would be subject to unreasonable and unmanageable pressures meanwhile, including in the election of a Chair of the PTI Board.
In the light of recent experience, I note that CWG has been driven by a few very interested stakeholders towards a position that would facilitate, if not anticipate, an early separation of PTI from ICANN and its probable severance into two or three distinct entities, and that this orientation has been facilitated, if not explicitly supported, by CWG counsel. Whereas I am reasonable certain that this does not represent the opinion of a wide range of other stakeholders.
Also, I suggest that it is time to call a halt to the vast volume of impenetrable legalese that has been generated in the matters of the PTI Bylaws, the licensing of IANA IPR, and the so-called Annexe C. Most of which is unnecessary for the Transition at this stage when - apparently - time is of the essence. Particularly as some of this material purports to address aspects of Internet management about which there are - to the best of my knowledge - no current concerns. Specifically, all discussion of the legal aspects of eventual separation, severance or separability, should be deferred until the Empowered Community has effectively taken a decision that we wish to move in that direction, the procedures for which having been defined in the Transition proposal.
More generally, the Empowered Community, the PTI Board, and - dare I say so - CWG's Legal Counsel have, perforce to date, no experience in the implementation of the proposed Transition.
I suggest that it would be prudent to let the Transition function, as proposed and approved, for 12 to 18 months before going any further. Meanwhile we should avoid proposals that are so detailed and abstract that they engender at best mistrust and at worst a fear of opportunism.
Regards
Christopher Wilkinson
On 09 Aug 2016, at 17:30, Jonathan Robinson <jrobinson@afilias.info <mailto:jrobinson@afilias.info>> wrote:
Hi Sharon.
The IOTF was simply put in place to provide a high-frequency touch point for ICANN staff as they worked on the implementation. The context for the introduction of the IOTF was the “secondment issue” whereby ICANN staff got too far ahead of the community in their implementation work. The IOTF had no decision making capabilities, these remained reserved for the CWG. Therefore, I am not sure it is necessary to reference the IOTF.
Accordingly, I would suggest rewording the below as:
· */CWG-Stewardship Comment/*: The CWG recognized that the Nominating Committee process for selecting the PTI Nominating Committee Directors would not be in place prior to the transition and therefore recommended that the two directors be identified prior to the transition to serve in the interim until the first election of PTI directors. It was proposed that the Co-chairs of the CWG-Stewardship, Lise Fuhr and Jonathan Robinson, serve as the initial Nominating Committee Directors until the first election of the PTI directors. The CWG-Stewardship supports this proposal. Should these individuals be unable to serve, the CWG-Stewardship would select qualified alternate nominees, and appointment of these alternate nominees would be subject to ICANN’s approval (not to be unreasonably withheld, conditioned or delayed). The CWG-Stewardship proposes that Section 5.5.1 of the Draft PTI Bylaws be modified as set forth below to describe the process for selecting the initial Nominating Committee Directors to be in place at the time of transition.
Any comment from others?
Thanks,
Jonathan
*From:* Flanagan, Sharon [mailto:sflanagan@ <mailto:sflanagan@>sidley.com <http://sidley.com>] *Sent:* 09 August 2016 06:12 *To:* Client Committee <cwg-client@icann.org <mailto:cwg-client@icann.org>> *Subject:* [client com] FW: CWG Comment Letter - PTI Bylaws
Dear Client Committee,
Attached is a revised draft of the CWG comment letter to the PTI bylaws. This reflects revisions to #4 and #5 of the comment letter. Specifically, we have revised the draft to address the appointment of Lise and Jonathan as the initial non-ICANN PTI directors.
In particular, we would appreciate a review of the description of the IOTF work below for accuracy since we were not directly involved in those discussions.
Given the tight timing (comments are due on Thursday), we are sending this to you and ICANN legal simultaneously, and they may have further comments.
Best regards, Sharon
*1.* *Initial Directors (Section 5.5.1)*
* *
· */Text from Draft PTI Bylaws/: *For the appointment of the initial directors of PTI, Section 5.5.1 of the Draft PTI Bylaws provides as follows: “Other than Directors initially appointed by the incorporator of the Corporation (which Directors shall hold office until the first election of Directors) and the President of the Corporation, the Directors shall be elected by the Member at the annual meeting of the Corporation….”
· */CWG-Stewardship Comment/*: In connection with the work of the Implementation Oversight Task Force, it was noted that the Nominating Committee process for selecting the PTI Nominating Committee Directors would not be in place prior to the transition and recommended that the two directors be identified prior to the transition to serve in the interim until the first election of PTI directors. It was recommended that the Co-chairs of the CWG-Stewardship, Lise Fuhr and Jonathan Robinson, serve as the initial Nominating Committee Directors until the first election of the PTI directors. The CWG-Stewardship supports this recommendation. Should these individuals be unable to serve, the CWG-Stewardship would select qualified alternate nominees, and appointment of these alternate nominees would be subject to ICANN’s approval (not to be unreasonably withheld, conditioned or delayed). The CWG-Stewardship proposes that Section 5.5.1 of the Draft PTI Bylaws be modified as set forth below to describe the process for selecting the initial Nominating Committee Directors to be in place at the time of transition.
“_Each initial Director of the Corporation shall hold office until the first election of Directors for such Director’s seat. _Other than _The initial _Directors initially _shall be_ appointed by the_Member_ incorporator of the Corporation (which Directors shall hold office until the first election of Directors)_, with the Cross Community Working Group to Develop an IANA Stewardship Transition Proposal on Naming Related Functions selecting two qualified nominees for appointment as the initial Nominating Committee Directors by the Member. Other than the initial Directors_ and the President of the Corporation, the Directors shall be elected by the Member at the annual meeting....”
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I join in not supporting this objection. From: <cwg-stewardship-bounces@icann.org<mailto:cwg-stewardship-bounces@icann.org>> on behalf of matthew shears <mshears@cdt.org<mailto:mshears@cdt.org>> Date: Tuesday 9 August 2016 at 19:36 To: "Gomes, Chuck" <cgomes@verisign.com<mailto:cgomes@verisign.com>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>, Christopher Wilkinson <lists@christopherwilkinson.eu<mailto:lists@christopherwilkinson.eu>> Cc: "cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org> IANA" <cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org>> Subject: Re: [CWG-Stewardship] [client com] CWG Comment Letter - PTI Bylaws + 1 Chuck and Greg. In response to your question Chuck - no, I do not support the objection. Matthew On 09/08/2016 19:30, Gomes, Chuck wrote: + 1 Greg, noting of course that I am probably classified as one of the “few very interested stakeholders”. Actually, I think most of us or ‘very interested stakeholders’ or we wouldn’t have spent such inordinate amounts of time for the last nearly two years. My question of the WG is this: is this a one-off objection or is there support from others in the CWG for it? It is very disturbing that this objection is coming at this late time regardless of whether it was expressed previously or not. Unless I missed something, there was no significant objection in the CWG to seating Lise and Jonathan on the PTI Board initially. If I am correct, this seems like a case of someone trying to get another bite at the apple when they failed previously. p I fully respect Christopher’s opinion and his right to express it but I strongly disagree with it, especially at this terribly late stage in the process. Chuck From: cwg-stewardship-bounces@icann.org<mailto:cwg-stewardship-bounces@icann.org> [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Greg Shatan Sent: Tuesday, August 09, 2016 2:04 PM To: Christopher Wilkinson Cc: cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org> IANA Subject: Re: [CWG-Stewardship] [client com] CWG Comment Letter - PTI Bylaws A few brief thoughts in response. 1. Don't let the perfect be the enemy of the good. PTI is a necessary element of the transaction and the Board is a element of the transition. What's suggested here would pull the entire Transition over to the side, at least until some workaround was developed. Initial Directors are commonplace in setting up new corporations. I trust that Jonathan and Lise, both with significant experience in senior management and board matters, will withstand whatever apocryphal pressure might be put upon them. 2. I'm not sure what a "very interested stakeholder" is. If this means a very dedicated stakeholder, who is very interested in assisting the community in achieving its goals and who will work on these matters in spite of personal and professional interests in doing other things, I'll admit to that. If this means someone who is operating in this CWG at the behest of "special interests" and whose actions are designed to advancing the undisclosed goals of those special interests, I categorically reject and resent that. (The latter description might apply to others, and that's reasonable; it's just not my position, and if you are referring to others, then I withdraw my sense of umbrage.) 3. Personally, I don't have any particular affinity for the PTI solution, and I was opposed to removing the IANA IPR from ICANN. Both of these were supported by the consensus of this group, as was the overall concept of enhancing "separability." On the latter point, I could have chosen to sulk and withdraw (or insist I was right long after it became an annoyance to the group). I chose neither; rather, I pitched in and worked on accomplishing the CWG's chosen goal to the best of my ability. I felt this was and is the right approach as a good community member and "multistakeholder." I won't speak for CWG counsel, but any counsel's role is to advise and caution on risks and concerns, and when the path is chosen, to assist the client in seeing it through. The fact that CWG's counsel is facilitating the chosen approach of the CWG is manifestly unexceptional; anything other than that would be peculiar, to say the least. Finally, to see in this some grand and concerted plan to dismantle ICANN (as the IANA) seems rather hypervigilant, to say the least. If someone has such a grand plan, I'm no better than a "useful idiot" in that regard. I wouldn't discount it entirely as someone's plan or goal (and I have had my own musings on that front, without naming names), but I do not ascribe it to some larger group (and certainly not any group of which I am a part). 4. The fact that legal documents (Bylaws, Articles of Incorporation, Agreements) contain legal language should not be shocking. "Legalese" is often a pejorative term, and I avoid it here to avoid misinterpretation. These documents are in fact necessary to implement the transition as designed. If anyone finds the documents "impenetrable" in whole or in part, I'm sure that Sidley would be more than happy to walk through the documents line by line and explain them all to you (at their usual hourly rate). (I might volunteer to do the same, but I've learned repeatedly that some who need such assistance are reject advice from a "participant" out of fear that the participant is "very interested" and thus would manipulate their explanations to serve some unseen agenda or master.) 5. At the risk of repeating myself, the idea of a simple transition, with no separability or designed-in anticipation of separation, was rejected in this group a long time ago, and after months of arduous discussion. I have not heard widespread discontent with that choice. Making a more complex choice obviously led to more complex implementation. I happen to think it's going quite well, though not without occasional bumps and hurdles. It's certainly not gone so pear-shaped that it should be scrapped. I will grant that for those "less interested" (in the non-pejorative sense of being less involved) may feel they have lost the thread a bit. If there are webinars or recap meetings that could help those who feel that way, it might be a good thing. Those who are lost, perplexed or confused often tend to imagine monsters around every bend where there's nothing to behold, and that should be avoided to the extent possible through explanation and edification. 6. The fact that various bodies have no experience with something that doesn't exist yet also seems rather obvious, but not one to engender massive changes at the last minute. That was rather to be expected, wasn't it? An alternate reality without reorganization and separability (or one where any work on that is shelved) has a certain charm and attraction in its relative simplicity. However, I see nothing in our current state of affairs that would support in any way a plan drastically dismantle something that has been approved by every community, the ICANN Board and the NTIA just for the sake of taking a deep breath and looking around a bit. On the other hand, I can imagine quite a number of negative consequences from doing so at this late date, or even attempting to do so. It's far better to make sure that we are "socializing" this plan as often as possible so that "monsters under the bed" of mistrust and opportunism can be pointed out to be mere dust balls that disintegrate just by blowing on them. Apologies for breaking my promise of brevity. Greg On Tue, Aug 9, 2016 at 1:01 PM, Christopher Wilkinson <lists@christopherwilkinson.eu<mailto:lists@christopherwilkinson.eu>> wrote: Dear Jonathan, Dear Lise: I do not support this option. I consider that the constitution of PTI should be deferred until the Nominating Committee has made its appointments. Although I respect and admire the offer from the Co-Chairs to act as temporary alternates for the - not-yet-appointed - NomCom Directors, I would be concerned that you - as PTI Board members - would be subject to unreasonable and unmanageable pressures meanwhile, including in the election of a Chair of the PTI Board. In the light of recent experience, I note that CWG has been driven by a few very interested stakeholders towards a position that would facilitate, if not anticipate, an early separation of PTI from ICANN and its probable severance into two or three distinct entities, and that this orientation has been facilitated, if not explicitly supported, by CWG counsel. Whereas I am reasonable certain that this does not represent the opinion of a wide range of other stakeholders. Also, I suggest that it is time to call a halt to the vast volume of impenetrable legalese that has been generated in the matters of the PTI Bylaws, the licensing of IANA IPR, and the so-called Annexe C. Most of which is unnecessary for the Transition at this stage when - apparently - time is of the essence. Particularly as some of this material purports to address aspects of Internet management about which there are - to the best of my knowledge - no current concerns. Specifically, all discussion of the legal aspects of eventual separation, severance or separability, should be deferred until the Empowered Community has effectively taken a decision that we wish to move in that direction, the procedures for which having been defined in the Transition proposal. More generally, the Empowered Community, the PTI Board, and - dare I say so - CWG's Legal Counsel have, perforce to date, no experience in the implementation of the proposed Transition. I suggest that it would be prudent to let the Transition function, as proposed and approved, for 12 to 18 months before going any further. Meanwhile we should avoid proposals that are so detailed and abstract that they engender at best mistrust and at worst a fear of opportunism. Regards Christopher Wilkinson On 09 Aug 2016, at 17:30, Jonathan Robinson <jrobinson@afilias.info<mailto:jrobinson@afilias.info>> wrote: Hi Sharon. The IOTF was simply put in place to provide a high-frequency touch point for ICANN staff as they worked on the implementation. The context for the introduction of the IOTF was the “secondment issue” whereby ICANN staff got too far ahead of the community in their implementation work. The IOTF had no decision making capabilities, these remained reserved for the CWG. Therefore, I am not sure it is necessary to reference the IOTF. Accordingly, I would suggest rewording the below as: · CWG-Stewardship Comment: The CWG recognized that the Nominating Committee process for selecting the PTI Nominating Committee Directors would not be in place prior to the transition and therefore recommended that the two directors be identified prior to the transition to serve in the interim until the first election of PTI directors. It was proposed that the Co-chairs of the CWG-Stewardship, Lise Fuhr and Jonathan Robinson, serve as the initial Nominating Committee Directors until the first election of the PTI directors. The CWG-Stewardship supports this proposal. Should these individuals be unable to serve, the CWG-Stewardship would select qualified alternate nominees, and appointment of these alternate nominees would be subject to ICANN’s approval (not to be unreasonably withheld, conditioned or delayed). The CWG-Stewardship proposes that Section 5.5.1 of the Draft PTI Bylaws be modified as set forth below to describe the process for selecting the initial Nominating Committee Directors to be in place at the time of transition. Any comment from others? Thanks, Jonathan From: Flanagan, Sharon [mailto:sflanagan@<mailto:sflanagan@>sidley.com<http://sidley.com>] Sent: 09 August 2016 06:12 To: Client Committee <cwg-client@icann.org<mailto:cwg-client@icann.org>> Subject: [client com] FW: CWG Comment Letter - PTI Bylaws Dear Client Committee, Attached is a revised draft of the CWG comment letter to the PTI bylaws. This reflects revisions to #4 and #5 of the comment letter. Specifically, we have revised the draft to address the appointment of Lise and Jonathan as the initial non-ICANN PTI directors. In particular, we would appreciate a review of the description of the IOTF work below for accuracy since we were not directly involved in those discussions. Given the tight timing (comments are due on Thursday), we are sending this to you and ICANN legal simultaneously, and they may have further comments. Best regards, Sharon 1. Initial Directors (Section 5.5.1) · Text from Draft PTI Bylaws: For the appointment of the initial directors of PTI, Section 5.5.1 of the Draft PTI Bylaws provides as follows: “Other than Directors initially appointed by the incorporator of the Corporation (which Directors shall hold office until the first election of Directors) and the President of the Corporation, the Directors shall be elected by the Member at the annual meeting of the Corporation….” · CWG-Stewardship Comment: In connection with the work of the Implementation Oversight Task Force, it was noted that the Nominating Committee process for selecting the PTI Nominating Committee Directors would not be in place prior to the transition and recommended that the two directors be identified prior to the transition to serve in the interim until the first election of PTI directors. It was recommended that the Co-chairs of the CWG-Stewardship, Lise Fuhr and Jonathan Robinson, serve as the initial Nominating Committee Directors until the first election of the PTI directors. The CWG-Stewardship supports this recommendation. Should these individuals be unable to serve, the CWG-Stewardship would select qualified alternate nominees, and appointment of these alternate nominees would be subject to ICANN’s approval (not to be unreasonably withheld, conditioned or delayed). The CWG-Stewardship proposes that Section 5.5.1 of the Draft PTI Bylaws be modified as set forth below to describe the process for selecting the initial Nominating Committee Directors to be in place at the time of transition. “Each initial Director of the Corporation shall hold office until the first election of Directors for such Director’s seat. Other than The initial Directors initially shall be appointed by theMember incorporator of the Corporation (which Directors shall hold office until the first election of Directors), with the Cross Community Working Group to Develop an IANA Stewardship Transition Proposal on Naming Related Functions selecting two qualified nominees for appointment as the initial Nominating Committee Directors by the Member. Other than the initial Directors and the President of the Corporation, the Directors shall be elected by the Member at the annual meeting....” **************************************************************************************************** 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. **************************************************************************************************** _______________________________________________ Cwg-client mailing list Cwg-client@icann.org<mailto:Cwg-client@icann.org> https://mm.icann.org/mailman/listinfo/cwg-client _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org<mailto:CWG-Stewardship@icann.org> https://mm.icann.org/mailman/listinfo/cwg-stewardship _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org<mailto:CWG-Stewardship@icann.org>https://mm.icann.org/mailman/listinfo/cwg-stewardship -- -------------- Matthew Shears Global Internet Policy and Human Rights Center for Democracy & Technology (CDT) + 44 771 2472987
Chuke I STRONGLY AND CATEGORICALLY OBJECT TO YOUR OPNION TRYING TO POLARIZE CWG IN SAYING Quote "My question of the WG is this: is this a one-off objection or is there support from others in the CWG for it? Unquote We have been working hard and hard for two years and tried hard to avois voting and now you move the motion of implicit vote As I said , I fully support Christophe. Then CWG must discuss his points Kavouss 2016-08-09 20:30 GMT+02:00 Gomes, Chuck <cgomes@verisign.com>:
+ 1 Greg, noting of course that I am probably classified as one of the “few very interested stakeholders”. Actually, I think most of us or ‘very interested stakeholders’ or we wouldn’t have spent such inordinate amounts of time for the last nearly two years.
My question of the WG is this: is this a one-off objection or is there support from others in the CWG for it?
It is very disturbing that this objection is coming at this late time regardless of whether it was expressed previously or not. Unless I missed something, there was no significant objection in the CWG to seating Lise and Jonathan on the PTI Board initially. If I am correct, this seems like a case of someone trying to get another bite at the apple when they failed previously.
p
I fully respect Christopher’s opinion and his right to express it but I strongly disagree with it, especially at this terribly late stage in the process.
Chuck
*From:* cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship- bounces@icann.org] *On Behalf Of *Greg Shatan *Sent:* Tuesday, August 09, 2016 2:04 PM *To:* Christopher Wilkinson *Cc:* cwg-stewardship@icann.org IANA *Subject:* Re: [CWG-Stewardship] [client com] CWG Comment Letter - PTI Bylaws
A few brief thoughts in response.
1. Don't let the perfect be the enemy of the good. PTI is a necessary element of the transaction and the Board is a element of the transition. What's suggested here would pull the entire Transition over to the side, at least until some workaround was developed. Initial Directors are commonplace in setting up new corporations. I trust that Jonathan and Lise, both with significant experience in senior management and board matters, will withstand whatever apocryphal pressure might be put upon them.
2. I'm not sure what a "very interested stakeholder" is. If this means a very dedicated stakeholder, who is very interested in assisting the community in achieving its goals and who will work on these matters in spite of personal and professional interests in doing other things, I'll admit to that. If this means someone who is operating in this CWG at the behest of "special interests" and whose actions are designed to advancing the undisclosed goals of those special interests, I categorically reject and resent that. (The latter description might apply to others, and that's reasonable; it's just not my position, and if you are referring to others, then I withdraw my sense of umbrage.)
3. Personally, I don't have any particular affinity for the PTI solution, and I was opposed to removing the IANA IPR from ICANN. Both of these were supported by the consensus of this group, as was the overall concept of enhancing "separability." On the latter point, I could have chosen to sulk and withdraw (or insist I was right long after it became an annoyance to the group). I chose neither; rather, I pitched in and worked on accomplishing the CWG's chosen goal to the best of my ability. I felt this was and is the right approach as a good community member and "multistakeholder." I won't speak for CWG counsel, but any counsel's role is to advise and caution on risks and concerns, and when the path is chosen, to assist the client in seeing it through. The fact that CWG's counsel is facilitating the chosen approach of the CWG is manifestly unexceptional; anything other than that would be peculiar, to say the least. Finally, to see in this some grand and concerted plan to dismantle ICANN (as the IANA) seems rather hypervigilant, to say the least. If someone has such a grand plan, I'm no better than a "useful idiot" in that regard. I wouldn't discount it entirely as someone's plan or goal (and I have had my own musings on that front, without naming names), but I do not ascribe it to some larger group (and certainly not any group of which I am a part).
4. The fact that legal documents (Bylaws, Articles of Incorporation, Agreements) contain legal language should not be shocking. "Legalese" is often a pejorative term, and I avoid it here to avoid misinterpretation. These documents are in fact necessary to implement the transition as designed. If anyone finds the documents "impenetrable" in whole or in part, I'm sure that Sidley would be more than happy to walk through the documents line by line and explain them all to you (at their usual hourly rate). (I might volunteer to do the same, but I've learned repeatedly that some who need such assistance are reject advice from a "participant" out of fear that the participant is "very interested" and thus would manipulate their explanations to serve some unseen agenda or master.)
5. At the risk of repeating myself, the idea of a simple transition, with no separability or designed-in anticipation of separation, was rejected in this group a long time ago, and after months of arduous discussion. I have not heard widespread discontent with that choice. Making a more complex choice obviously led to more complex implementation. I happen to think it's going quite well, though not without occasional bumps and hurdles. It's certainly not gone so pear-shaped that it should be scrapped. I will grant that for those "less interested" (in the non-pejorative sense of being less involved) may feel they have lost the thread a bit. If there are webinars or recap meetings that could help those who feel that way, it might be a good thing. Those who are lost, perplexed or confused often tend to imagine monsters around every bend where there's nothing to behold, and that should be avoided to the extent possible through explanation and edification.
6. The fact that various bodies have no experience with something that doesn't exist yet also seems rather obvious, but not one to engender massive changes at the last minute. That was rather to be expected, wasn't it? An alternate reality without reorganization and separability (or one where any work on that is shelved) has a certain charm and attraction in its relative simplicity. However, I see nothing in our current state of affairs that would support in any way a plan drastically dismantle something that has been approved by every community, the ICANN Board and the NTIA just for the sake of taking a deep breath and looking around a bit. On the other hand, I can imagine quite a number of negative consequences from doing so at this late date, or even attempting to do so. It's far better to make sure that we are "socializing" this plan as often as possible so that "monsters under the bed" of mistrust and opportunism can be pointed out to be mere dust balls that disintegrate just by blowing on them.
Apologies for breaking my promise of brevity.
Greg
On Tue, Aug 9, 2016 at 1:01 PM, Christopher Wilkinson < lists@christopherwilkinson.eu> wrote:
Dear Jonathan, Dear Lise:
I do not support this option. I consider that the constitution of PTI should be deferred until the Nominating Committee has made its appointments.
Although I respect and admire the offer from the Co-Chairs to act as temporary alternates for the - not-yet-appointed - NomCom Directors, I would be concerned that you - as PTI Board members - would be subject to unreasonable and unmanageable pressures meanwhile, including in the election of a Chair of the PTI Board.
In the light of recent experience, I note that CWG has been driven by a few very interested stakeholders towards a position that would facilitate, if not anticipate, an early separation of PTI from ICANN and its probable severance into two or three distinct entities, and that this orientation has been facilitated, if not explicitly supported, by CWG counsel. Whereas I am reasonable certain that this does not represent the opinion of a wide range of other stakeholders.
Also, I suggest that it is time to call a halt to the vast volume of impenetrable legalese that has been generated in the matters of the PTI Bylaws, the licensing of IANA IPR, and the so-called Annexe C. Most of which is unnecessary for the Transition at this stage when - apparently - time is of the essence. Particularly as some of this material purports to address aspects of Internet management about which there are - to the best of my knowledge - no current concerns. Specifically, all discussion of the legal aspects of eventual separation, severance or separability, should be deferred until the Empowered Community has effectively taken a decision that we wish to move in that direction, the procedures for which having been defined in the Transition proposal.
More generally, the Empowered Community, the PTI Board, and - dare I say so - CWG's Legal Counsel have, perforce to date, no experience in the implementation of the proposed Transition.
I suggest that it would be prudent to let the Transition function, as proposed and approved, for 12 to 18 months before going any further. Meanwhile we should avoid proposals that are so detailed and abstract that they engender at best mistrust and at worst a fear of opportunism.
Regards
Christopher Wilkinson
On 09 Aug 2016, at 17:30, Jonathan Robinson <jrobinson@afilias.info> wrote:
Hi Sharon.
The IOTF was simply put in place to provide a high-frequency touch point for ICANN staff as they worked on the implementation. The context for the introduction of the IOTF was the “secondment issue” whereby ICANN staff got too far ahead of the community in their implementation work. The IOTF had no decision making capabilities, these remained reserved for the CWG. Therefore, I am not sure it is necessary to reference the IOTF.
Accordingly, I would suggest rewording the below as:
· *CWG-Stewardship Comment*: The CWG recognized that the Nominating Committee process for selecting the PTI Nominating Committee Directors would not be in place prior to the transition and therefore recommended that the two directors be identified prior to the transition to serve in the interim until the first election of PTI directors. It was proposed that the Co-chairs of the CWG-Stewardship, Lise Fuhr and Jonathan Robinson, serve as the initial Nominating Committee Directors until the first election of the PTI directors. The CWG-Stewardship supports this proposal. Should these individuals be unable to serve, the CWG-Stewardship would select qualified alternate nominees, and appointment of these alternate nominees would be subject to ICANN’s approval (not to be unreasonably withheld, conditioned or delayed). The CWG-Stewardship proposes that Section 5.5.1 of the Draft PTI Bylaws be modified as set forth below to describe the process for selecting the initial Nominating Committee Directors to be in place at the time of transition.
Any comment from others?
Thanks,
Jonathan
*From:* Flanagan, Sharon [mailto:sflanagan@sidley.com] *Sent:* 09 August 2016 06:12 *To:* Client Committee <cwg-client@icann.org> *Subject:* [client com] FW: CWG Comment Letter - PTI Bylaws
Dear Client Committee,
Attached is a revised draft of the CWG comment letter to the PTI bylaws. This reflects revisions to #4 and #5 of the comment letter. Specifically, we have revised the draft to address the appointment of Lise and Jonathan as the initial non-ICANN PTI directors.
In particular, we would appreciate a review of the description of the IOTF work below for accuracy since we were not directly involved in those discussions.
Given the tight timing (comments are due on Thursday), we are sending this to you and ICANN legal simultaneously, and they may have further comments.
Best regards, Sharon
*1.* *Initial Directors (Section 5.5.1)*
· *Text from Draft PTI Bylaws: *For the appointment of the initial directors of PTI, Section 5.5.1 of the Draft PTI Bylaws provides as follows: “Other than Directors initially appointed by the incorporator of the Corporation (which Directors shall hold office until the first election of Directors) and the President of the Corporation, the Directors shall be elected by the Member at the annual meeting of the Corporation….”
· *CWG-Stewardship Comment*: In connection with the work of the Implementation Oversight Task Force, it was noted that the Nominating Committee process for selecting the PTI Nominating Committee Directors would not be in place prior to the transition and recommended that the two directors be identified prior to the transition to serve in the interim until the first election of PTI directors. It was recommended that the Co-chairs of the CWG-Stewardship, Lise Fuhr and Jonathan Robinson, serve as the initial Nominating Committee Directors until the first election of the PTI directors. The CWG-Stewardship supports this recommendation. Should these individuals be unable to serve, the CWG-Stewardship would select qualified alternate nominees, and appointment of these alternate nominees would be subject to ICANN’s approval (not to be unreasonably withheld, conditioned or delayed). The CWG-Stewardship proposes that Section 5.5.1 of the Draft PTI Bylaws be modified as set forth below to describe the process for selecting the initial Nominating Committee Directors to be in place at the time of transition.
“*Each initial Director of the Corporation shall hold office until the first election of Directors for such Director’s seat. *Other than *The initial *Directors initially *shall be* appointed by the*Member* incorporator of the Corporation (which Directors shall hold office until the first election of Directors)*, with the Cross Community Working Group to Develop an IANA Stewardship Transition Proposal on Naming Related Functions selecting two qualified nominees for appointment as the initial Nominating Committee Directors by the Member. Other than the initial Directors* and the President of the Corporation, the Directors shall be elected by the Member at the annual meeting....”
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Chuck and Craig: I think many of Christopher's points have merit. I believe that there has been a firehose type supply of legal writing (and not always great legal writing) to digest, an over-complexification of the issues with no relaxation of time frames to make decisions, and a bias on the part of some participants to see a separation between IANA and ICANN. In hindsight, it would have been better to separate out some of these issues for later discussion. Having said that. My understanding is that the decision to appoint Jonathan and Lise as a temporary Board was made some months ago after discussion. I think there are better solutions but this was the one that was selected. Distilling Greg's email down: we should let the "good" stay in place. Kurt ________________ Kurt Pritz kurt@kjpritz.com +1.310.400.4184 Skype: kjpritz On Aug 9, 2016, at 11:30 AM, "Gomes, Chuck" <cgomes@verisign.com> wrote:
+ 1 Greg, noting of course that I am probably classified as one of the “few very interested stakeholders”. Actually, I think most of us or ‘very interested stakeholders’ or we wouldn’t have spent such inordinate amounts of time for the last nearly two years.
My question of the WG is this: is this a one-off objection or is there support from others in the CWG for it?
It is very disturbing that this objection is coming at this late time regardless of whether it was expressed previously or not. Unless I missed something, there was no significant objection in the CWG to seating Lise and Jonathan on the PTI Board initially. If I am correct, this seems like a case of someone trying to get another bite at the apple when they failed previously. p I fully respect Christopher’s opinion and his right to express it but I strongly disagree with it, especially at this terribly late stage in the process.
Chuck
From: cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Greg Shatan Sent: Tuesday, August 09, 2016 2:04 PM To: Christopher Wilkinson Cc: cwg-stewardship@icann.org IANA Subject: Re: [CWG-Stewardship] [client com] CWG Comment Letter - PTI Bylaws
A few brief thoughts in response.
1. Don't let the perfect be the enemy of the good. PTI is a necessary element of the transaction and the Board is a element of the transition. What's suggested here would pull the entire Transition over to the side, at least until some workaround was developed. Initial Directors are commonplace in setting up new corporations. I trust that Jonathan and Lise, both with significant experience in senior management and board matters, will withstand whatever apocryphal pressure might be put upon them.
2. I'm not sure what a "very interested stakeholder" is. If this means a very dedicated stakeholder, who is very interested in assisting the community in achieving its goals and who will work on these matters in spite of personal and professional interests in doing other things, I'll admit to that. If this means someone who is operating in this CWG at the behest of "special interests" and whose actions are designed to advancing the undisclosed goals of those special interests, I categorically reject and resent that. (The latter description might apply to others, and that's reasonable; it's just not my position, and if you are referring to others, then I withdraw my sense of umbrage.)
3. Personally, I don't have any particular affinity for the PTI solution, and I was opposed to removing the IANA IPR from ICANN. Both of these were supported by the consensus of this group, as was the overall concept of enhancing "separability." On the latter point, I could have chosen to sulk and withdraw (or insist I was right long after it became an annoyance to the group). I chose neither; rather, I pitched in and worked on accomplishing the CWG's chosen goal to the best of my ability. I felt this was and is the right approach as a good community member and "multistakeholder." I won't speak for CWG counsel, but any counsel's role is to advise and caution on risks and concerns, and when the path is chosen, to assist the client in seeing it through. The fact that CWG's counsel is facilitating the chosen approach of the CWG is manifestly unexceptional; anything other than that would be peculiar, to say the least. Finally, to see in this some grand and concerted plan to dismantle ICANN (as the IANA) seems rather hypervigilant, to say the least. If someone has such a grand plan, I'm no better than a "useful idiot" in that regard. I wouldn't discount it entirely as someone's plan or goal (and I have had my own musings on that front, without naming names), but I do not ascribe it to some larger group (and certainly not any group of which I am a part).
4. The fact that legal documents (Bylaws, Articles of Incorporation, Agreements) contain legal language should not be shocking. "Legalese" is often a pejorative term, and I avoid it here to avoid misinterpretation. These documents are in fact necessary to implement the transition as designed. If anyone finds the documents "impenetrable" in whole or in part, I'm sure that Sidley would be more than happy to walk through the documents line by line and explain them all to you (at their usual hourly rate). (I might volunteer to do the same, but I've learned repeatedly that some who need such assistance are reject advice from a "participant" out of fear that the participant is "very interested" and thus would manipulate their explanations to serve some unseen agenda or master.)
5. At the risk of repeating myself, the idea of a simple transition, with no separability or designed-in anticipation of separation, was rejected in this group a long time ago, and after months of arduous discussion. I have not heard widespread discontent with that choice. Making a more complex choice obviously led to more complex implementation. I happen to think it's going quite well, though not without occasional bumps and hurdles. It's certainly not gone so pear-shaped that it should be scrapped. I will grant that for those "less interested" (in the non-pejorative sense of being less involved) may feel they have lost the thread a bit. If there are webinars or recap meetings that could help those who feel that way, it might be a good thing. Those who are lost, perplexed or confused often tend to imagine monsters around every bend where there's nothing to behold, and that should be avoided to the extent possible through explanation and edification.
6. The fact that various bodies have no experience with something that doesn't exist yet also seems rather obvious, but not one to engender massive changes at the last minute. That was rather to be expected, wasn't it? An alternate reality without reorganization and separability (or one where any work on that is shelved) has a certain charm and attraction in its relative simplicity. However, I see nothing in our current state of affairs that would support in any way a plan drastically dismantle something that has been approved by every community, the ICANN Board and the NTIA just for the sake of taking a deep breath and looking around a bit. On the other hand, I can imagine quite a number of negative consequences from doing so at this late date, or even attempting to do so. It's far better to make sure that we are "socializing" this plan as often as possible so that "monsters under the bed" of mistrust and opportunism can be pointed out to be mere dust balls that disintegrate just by blowing on them.
Apologies for breaking my promise of brevity.
Greg
On Tue, Aug 9, 2016 at 1:01 PM, Christopher Wilkinson <lists@christopherwilkinson.eu> wrote: Dear Jonathan, Dear Lise:
I do not support this option. I consider that the constitution of PTI should be deferred until the Nominating Committee has made its appointments. Although I respect and admire the offer from the Co-Chairs to act as temporary alternates for the - not-yet-appointed - NomCom Directors, I would be concerned that you - as PTI Board members - would be subject to unreasonable and unmanageable pressures meanwhile, including in the election of a Chair of the PTI Board.
In the light of recent experience, I note that CWG has been driven by a few very interested stakeholders towards a position that would facilitate, if not anticipate, an early separation of PTI from ICANN and its probable severance into two or three distinct entities, and that this orientation has been facilitated, if not explicitly supported, by CWG counsel. Whereas I am reasonable certain that this does not represent the opinion of a wide range of other stakeholders.
Also, I suggest that it is time to call a halt to the vast volume of impenetrable legalese that has been generated in the matters of the PTI Bylaws, the licensing of IANA IPR, and the so-called Annexe C. Most of which is unnecessary for the Transition at this stage when - apparently - time is of the essence. Particularly as some of this material purports to address aspects of Internet management about which there are - to the best of my knowledge - no current concerns. Specifically, all discussion of the legal aspects of eventual separation, severance or separability, should be deferred until the Empowered Community has effectively taken a decision that we wish to move in that direction, the procedures for which having been defined in the Transition proposal.
More generally, the Empowered Community, the PTI Board, and - dare I say so - CWG's Legal Counsel have, perforce to date, no experience in the implementation of the proposed Transition. I suggest that it would be prudent to let the Transition function, as proposed and approved, for 12 to 18 months before going any further. Meanwhile we should avoid proposals that are so detailed and abstract that they engender at best mistrust and at worst a fear of opportunism.
Regards
Christopher Wilkinson
On 09 Aug 2016, at 17:30, Jonathan Robinson <jrobinson@afilias.info> wrote:
Hi Sharon.
The IOTF was simply put in place to provide a high-frequency touch point for ICANN staff as they worked on the implementation. The context for the introduction of the IOTF was the “secondment issue” whereby ICANN staff got too far ahead of the community in their implementation work. The IOTF had no decision making capabilities, these remained reserved for the CWG. Therefore, I am not sure it is necessary to reference the IOTF.
Accordingly, I would suggest rewording the below as:
· CWG-Stewardship Comment: The CWG recognized that the Nominating Committee process for selecting the PTI Nominating Committee Directors would not be in place prior to the transition and therefore recommended that the two directors be identified prior to the transition to serve in the interim until the first election of PTI directors. It was proposed that the Co-chairs of the CWG-Stewardship, Lise Fuhr and Jonathan Robinson, serve as the initial Nominating Committee Directors until the first election of the PTI directors. The CWG-Stewardship supports this proposal. Should these individuals be unable to serve, the CWG-Stewardship would select qualified alternate nominees, and appointment of these alternate nominees would be subject to ICANN’s approval (not to be unreasonably withheld, conditioned or delayed). The CWG-Stewardship proposes that Section 5.5.1 of the Draft PTI Bylaws be modified as set forth below to describe the process for selecting the initial Nominating Committee Directors to be in place at the time of transition.
Any comment from others?
Thanks,
Jonathan
From: Flanagan, Sharon [mailto:sflanagan@sidley.com] Sent: 09 August 2016 06:12 To: Client Committee <cwg-client@icann.org> Subject: [client com] FW: CWG Comment Letter - PTI Bylaws
Dear Client Committee,
Attached is a revised draft of the CWG comment letter to the PTI bylaws. This reflects revisions to #4 and #5 of the comment letter. Specifically, we have revised the draft to address the appointment of Lise and Jonathan as the initial non-ICANN PTI directors.
In particular, we would appreciate a review of the description of the IOTF work below for accuracy since we were not directly involved in those discussions.
Given the tight timing (comments are due on Thursday), we are sending this to you and ICANN legal simultaneously, and they may have further comments.
Best regards, Sharon
1. Initial Directors (Section 5.5.1)
· Text from Draft PTI Bylaws: For the appointment of the initial directors of PTI, Section 5.5.1 of the Draft PTI Bylaws provides as follows: “Other than Directors initially appointed by the incorporator of the Corporation (which Directors shall hold office until the first election of Directors) and the President of the Corporation, the Directors shall be elected by the Member at the annual meeting of the Corporation….”
· CWG-Stewardship Comment: In connection with the work of the Implementation Oversight Task Force, it was noted that the Nominating Committee process for selecting the PTI Nominating Committee Directors would not be in place prior to the transition and recommended that the two directors be identified prior to the transition to serve in the interim until the first election of PTI directors. It was recommended that the Co-chairs of the CWG-Stewardship, Lise Fuhr and Jonathan Robinson, serve as the initial Nominating Committee Directors until the first election of the PTI directors. The CWG-Stewardship supports this recommendation. Should these individuals be unable to serve, the CWG-Stewardship would select qualified alternate nominees, and appointment of these alternate nominees would be subject to ICANN’s approval (not to be unreasonably withheld, conditioned or delayed). The CWG-Stewardship proposes that Section 5.5.1 of the Draft PTI Bylaws be modified as set forth below to describe the process for selecting the initial Nominating Committee Directors to be in place at the time of transition.
“Each initial Director of the Corporation shall hold office until the first election of Directors for such Director’s seat. Other than The initial Directors initially shall be appointed by theMember incorporator of the Corporation (which Directors shall hold office until the first election of Directors), with the Cross Community Working Group to Develop an IANA Stewardship Transition Proposal on Naming Related Functions selecting two qualified nominees for appointment as the initial Nominating Committee Directors by the Member. Other than the initial Directors and the President of the Corporation, the Directors shall be elected by the Member at the annual meeting....”
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Kurtz and Christopher + 1 KAVOUSS 2016-08-09 23:19 GMT+02:00 Kurt Pritz <kurt@kjpritz.com>:
Chuck and Craig:
I think many of Christopher's points have merit. I believe that there has been a firehose type supply of legal writing (and not always great legal writing) to digest, an over-complexification of the issues with no relaxation of time frames to make decisions, and a bias on the part of some participants to see a separation between IANA and ICANN. In hindsight, it would have been better to separate out some of these issues for later discussion.
Having said that. My understanding is that the decision to appoint Jonathan and Lise as a temporary Board was made some months ago after discussion. I think there are better solutions but this was the one that was selected.
Distilling Greg's email down: we should let the "good" stay in place.
Kurt ________________ Kurt Pritz kurt@kjpritz.com +1.310.400.4184 Skype: kjpritz
On Aug 9, 2016, at 11:30 AM, "Gomes, Chuck" <cgomes@verisign.com> wrote:
+ 1 Greg, noting of course that I am probably classified as one of the “few very interested stakeholders”. Actually, I think most of us or ‘very interested stakeholders’ or we wouldn’t have spent such inordinate amounts of time for the last nearly two years.
My question of the WG is this: is this a one-off objection or is there support from others in the CWG for it?
It is very disturbing that this objection is coming at this late time regardless of whether it was expressed previously or not. Unless I missed something, there was no significant objection in the CWG to seating Lise and Jonathan on the PTI Board initially. If I am correct, this seems like a case of someone trying to get another bite at the apple when they failed previously.
p I fully respect Christopher’s opinion and his right to express it but I strongly disagree with it, especially at this terribly late stage in the process.
Chuck
*From:* cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship- bounces@icann.org] *On Behalf Of *Greg Shatan *Sent:* Tuesday, August 09, 2016 2:04 PM *To:* Christopher Wilkinson *Cc:* cwg-stewardship@icann.org IANA *Subject:* Re: [CWG-Stewardship] [client com] CWG Comment Letter - PTI Bylaws
A few brief thoughts in response.
1. Don't let the perfect be the enemy of the good. PTI is a necessary element of the transaction and the Board is a element of the transition. What's suggested here would pull the entire Transition over to the side, at least until some workaround was developed. Initial Directors are commonplace in setting up new corporations. I trust that Jonathan and Lise, both with significant experience in senior management and board matters, will withstand whatever apocryphal pressure might be put upon them.
2. I'm not sure what a "very interested stakeholder" is. If this means a very dedicated stakeholder, who is very interested in assisting the community in achieving its goals and who will work on these matters in spite of personal and professional interests in doing other things, I'll admit to that. If this means someone who is operating in this CWG at the behest of "special interests" and whose actions are designed to advancing the undisclosed goals of those special interests, I categorically reject and resent that. (The latter description might apply to others, and that's reasonable; it's just not my position, and if you are referring to others, then I withdraw my sense of umbrage.)
3. Personally, I don't have any particular affinity for the PTI solution, and I was opposed to removing the IANA IPR from ICANN. Both of these were supported by the consensus of this group, as was the overall concept of enhancing "separability." On the latter point, I could have chosen to sulk and withdraw (or insist I was right long after it became an annoyance to the group). I chose neither; rather, I pitched in and worked on accomplishing the CWG's chosen goal to the best of my ability. I felt this was and is the right approach as a good community member and "multistakeholder." I won't speak for CWG counsel, but any counsel's role is to advise and caution on risks and concerns, and when the path is chosen, to assist the client in seeing it through. The fact that CWG's counsel is facilitating the chosen approach of the CWG is manifestly unexceptional; anything other than that would be peculiar, to say the least. Finally, to see in this some grand and concerted plan to dismantle ICANN (as the IANA) seems rather hypervigilant, to say the least. If someone has such a grand plan, I'm no better than a "useful idiot" in that regard. I wouldn't discount it entirely as someone's plan or goal (and I have had my own musings on that front, without naming names), but I do not ascribe it to some larger group (and certainly not any group of which I am a part).
4. The fact that legal documents (Bylaws, Articles of Incorporation, Agreements) contain legal language should not be shocking. "Legalese" is often a pejorative term, and I avoid it here to avoid misinterpretation. These documents are in fact necessary to implement the transition as designed. If anyone finds the documents "impenetrable" in whole or in part, I'm sure that Sidley would be more than happy to walk through the documents line by line and explain them all to you (at their usual hourly rate). (I might volunteer to do the same, but I've learned repeatedly that some who need such assistance are reject advice from a "participant" out of fear that the participant is "very interested" and thus would manipulate their explanations to serve some unseen agenda or master.)
5. At the risk of repeating myself, the idea of a simple transition, with no separability or designed-in anticipation of separation, was rejected in this group a long time ago, and after months of arduous discussion. I have not heard widespread discontent with that choice. Making a more complex choice obviously led to more complex implementation. I happen to think it's going quite well, though not without occasional bumps and hurdles. It's certainly not gone so pear-shaped that it should be scrapped. I will grant that for those "less interested" (in the non-pejorative sense of being less involved) may feel they have lost the thread a bit. If there are webinars or recap meetings that could help those who feel that way, it might be a good thing. Those who are lost, perplexed or confused often tend to imagine monsters around every bend where there's nothing to behold, and that should be avoided to the extent possible through explanation and edification.
6. The fact that various bodies have no experience with something that doesn't exist yet also seems rather obvious, but not one to engender massive changes at the last minute. That was rather to be expected, wasn't it? An alternate reality without reorganization and separability (or one where any work on that is shelved) has a certain charm and attraction in its relative simplicity. However, I see nothing in our current state of affairs that would support in any way a plan drastically dismantle something that has been approved by every community, the ICANN Board and the NTIA just for the sake of taking a deep breath and looking around a bit. On the other hand, I can imagine quite a number of negative consequences from doing so at this late date, or even attempting to do so. It's far better to make sure that we are "socializing" this plan as often as possible so that "monsters under the bed" of mistrust and opportunism can be pointed out to be mere dust balls that disintegrate just by blowing on them.
Apologies for breaking my promise of brevity.
Greg
On Tue, Aug 9, 2016 at 1:01 PM, Christopher Wilkinson < lists@christopherwilkinson.eu> wrote: Dear Jonathan, Dear Lise:
I do not support this option. I consider that the constitution of PTI should be deferred until the Nominating Committee has made its appointments. Although I respect and admire the offer from the Co-Chairs to act as temporary alternates for the - not-yet-appointed - NomCom Directors, I would be concerned that you - as PTI Board members - would be subject to unreasonable and unmanageable pressures meanwhile, including in the election of a Chair of the PTI Board.
In the light of recent experience, I note that CWG has been driven by a few very interested stakeholders towards a position that would facilitate, if not anticipate, an early separation of PTI from ICANN and its probable severance into two or three distinct entities, and that this orientation has been facilitated, if not explicitly supported, by CWG counsel. Whereas I am reasonable certain that this does not represent the opinion of a wide range of other stakeholders.
Also, I suggest that it is time to call a halt to the vast volume of impenetrable legalese that has been generated in the matters of the PTI Bylaws, the licensing of IANA IPR, and the so-called Annexe C. Most of which is unnecessary for the Transition at this stage when - apparently - time is of the essence. Particularly as some of this material purports to address aspects of Internet management about which there are - to the best of my knowledge - no current concerns. Specifically, all discussion of the legal aspects of eventual separation, severance or separability, should be deferred until the Empowered Community has effectively taken a decision that we wish to move in that direction, the procedures for which having been defined in the Transition proposal.
More generally, the Empowered Community, the PTI Board, and - dare I say so - CWG's Legal Counsel have, perforce to date, no experience in the implementation of the proposed Transition. I suggest that it would be prudent to let the Transition function, as proposed and approved, for 12 to 18 months before going any further. Meanwhile we should avoid proposals that are so detailed and abstract that they engender at best mistrust and at worst a fear of opportunism.
Regards
Christopher Wilkinson
On 09 Aug 2016, at 17:30, Jonathan Robinson <jrobinson@afilias.info> wrote:
Hi Sharon.
The IOTF was simply put in place to provide a high-frequency touch point for ICANN staff as they worked on the implementation. The context for the introduction of the IOTF was the “secondment issue” whereby ICANN staff got too far ahead of the community in their implementation work. The IOTF had no decision making capabilities, these remained reserved for the CWG. Therefore, I am not sure it is necessary to reference the IOTF.
Accordingly, I would suggest rewording the below as:
· *CWG-Stewardship Comment*: The CWG recognized that the Nominating Committee process for selecting the PTI Nominating Committee Directors would not be in place prior to the transition and therefore recommended that the two directors be identified prior to the transition to serve in the interim until the first election of PTI directors. It was proposed that the Co-chairs of the CWG-Stewardship, Lise Fuhr and Jonathan Robinson, serve as the initial Nominating Committee Directors until the first election of the PTI directors. The CWG-Stewardship supports this proposal. Should these individuals be unable to serve, the CWG-Stewardship would select qualified alternate nominees, and appointment of these alternate nominees would be subject to ICANN’s approval (not to be unreasonably withheld, conditioned or delayed). The CWG-Stewardship proposes that Section 5.5.1 of the Draft PTI Bylaws be modified as set forth below to describe the process for selecting the initial Nominating Committee Directors to be in place at the time of transition.
Any comment from others?
Thanks,
Jonathan
*From:* Flanagan, Sharon [mailto:sflanagan@sidley.com] *Sent:* 09 August 2016 06:12 *To:* Client Committee <cwg-client@icann.org> *Subject:* [client com] FW: CWG Comment Letter - PTI Bylaws
Dear Client Committee,
Attached is a revised draft of the CWG comment letter to the PTI bylaws. This reflects revisions to #4 and #5 of the comment letter. Specifically, we have revised the draft to address the appointment of Lise and Jonathan as the initial non-ICANN PTI directors.
In particular, we would appreciate a review of the description of the IOTF work below for accuracy since we were not directly involved in those discussions.
Given the tight timing (comments are due on Thursday), we are sending this to you and ICANN legal simultaneously, and they may have further comments.
Best regards, Sharon
*1.* *Initial Directors (Section 5.5.1)*
· *Text from Draft PTI Bylaws: *For the appointment of the initial directors of PTI, Section 5.5.1 of the Draft PTI Bylaws provides as follows: “Other than Directors initially appointed by the incorporator of the Corporation (which Directors shall hold office until the first election of Directors) and the President of the Corporation, the Directors shall be elected by the Member at the annual meeting of the Corporation….”
· *CWG-Stewardship Comment*: In connection with the work of the Implementation Oversight Task Force, it was noted that the Nominating Committee process for selecting the PTI Nominating Committee Directors would not be in place prior to the transition and recommended that the two directors be identified prior to the transition to serve in the interim until the first election of PTI directors. It was recommended that the Co-chairs of the CWG-Stewardship, Lise Fuhr and Jonathan Robinson, serve as the initial Nominating Committee Directors until the first election of the PTI directors. The CWG-Stewardship supports this recommendation. Should these individuals be unable to serve, the CWG-Stewardship would select qualified alternate nominees, and appointment of these alternate nominees would be subject to ICANN’s approval (not to be unreasonably withheld, conditioned or delayed). The CWG-Stewardship proposes that Section 5.5.1 of the Draft PTI Bylaws be modified as set forth below to describe the process for selecting the initial Nominating Committee Directors to be in place at the time of transition.
“*Each initial Director of the Corporation shall hold office until the first election of Directors for such Director’s seat. *Other than *The initial *Directors initially *shall be* appointed by the*Member* incorporator of the Corporation (which Directors shall hold office until the first election of Directors)*, with the Cross Community Working Group to Develop an IANA Stewardship Transition Proposal on Naming Related Functions selecting two qualified nominees for appointment as the initial Nominating Committee Directors by the Member. Other than the initial Directors* and the President of the Corporation, the Directors shall be elected by the Member at the annual meeting....”
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Dear Chuck I would classify myself as a very uninterested stakeholder; uninterested, that is, in objections that were dealt with and rejected a year or more ago. --MM From: cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Gomes, Chuck Sent: Tuesday, August 9, 2016 2:30 PM To: Greg Shatan <gregshatanipc@gmail.com>; Christopher Wilkinson <lists@christopherwilkinson.eu> Cc: cwg-stewardship@icann.org IANA <cwg-stewardship@icann.org> Subject: Re: [CWG-Stewardship] [client com] CWG Comment Letter - PTI Bylaws + 1 Greg, noting of course that I am probably classified as one of the “few very interested stakeholders”. Actually, I think most of us or ‘very interested stakeholders’ or we wouldn’t have spent such inordinate amounts of time for the last nearly two years. My question of the WG is this: is this a one-off objection or is there support from others in the CWG for it? It is very disturbing that this objection is coming at this late time regardless of whether it was expressed previously or not. Unless I missed something, there was no significant objection in the CWG to seating Lise and Jonathan on the PTI Board initially. If I am correct, this seems like a case of someone trying to get another bite at the apple when they failed previously. p I fully respect Christopher’s opinion and his right to express it but I strongly disagree with it, especially at this terribly late stage in the process. Chuck From: cwg-stewardship-bounces@icann.org<mailto:cwg-stewardship-bounces@icann.org> [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Greg Shatan Sent: Tuesday, August 09, 2016 2:04 PM To: Christopher Wilkinson Cc: cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org> IANA Subject: Re: [CWG-Stewardship] [client com] CWG Comment Letter - PTI Bylaws A few brief thoughts in response. 1. Don't let the perfect be the enemy of the good. PTI is a necessary element of the transaction and the Board is a element of the transition. What's suggested here would pull the entire Transition over to the side, at least until some workaround was developed. Initial Directors are commonplace in setting up new corporations. I trust that Jonathan and Lise, both with significant experience in senior management and board matters, will withstand whatever apocryphal pressure might be put upon them. 2. I'm not sure what a "very interested stakeholder" is. If this means a very dedicated stakeholder, who is very interested in assisting the community in achieving its goals and who will work on these matters in spite of personal and professional interests in doing other things, I'll admit to that. If this means someone who is operating in this CWG at the behest of "special interests" and whose actions are designed to advancing the undisclosed goals of those special interests, I categorically reject and resent that. (The latter description might apply to others, and that's reasonable; it's just not my position, and if you are referring to others, then I withdraw my sense of umbrage.) 3. Personally, I don't have any particular affinity for the PTI solution, and I was opposed to removing the IANA IPR from ICANN. Both of these were supported by the consensus of this group, as was the overall concept of enhancing "separability." On the latter point, I could have chosen to sulk and withdraw (or insist I was right long after it became an annoyance to the group). I chose neither; rather, I pitched in and worked on accomplishing the CWG's chosen goal to the best of my ability. I felt this was and is the right approach as a good community member and "multistakeholder." I won't speak for CWG counsel, but any counsel's role is to advise and caution on risks and concerns, and when the path is chosen, to assist the client in seeing it through. The fact that CWG's counsel is facilitating the chosen approach of the CWG is manifestly unexceptional; anything other than that would be peculiar, to say the least. Finally, to see in this some grand and concerted plan to dismantle ICANN (as the IANA) seems rather hypervigilant, to say the least. If someone has such a grand plan, I'm no better than a "useful idiot" in that regard. I wouldn't discount it entirely as someone's plan or goal (and I have had my own musings on that front, without naming names), but I do not ascribe it to some larger group (and certainly not any group of which I am a part). 4. The fact that legal documents (Bylaws, Articles of Incorporation, Agreements) contain legal language should not be shocking. "Legalese" is often a pejorative term, and I avoid it here to avoid misinterpretation. These documents are in fact necessary to implement the transition as designed. If anyone finds the documents "impenetrable" in whole or in part, I'm sure that Sidley would be more than happy to walk through the documents line by line and explain them all to you (at their usual hourly rate). (I might volunteer to do the same, but I've learned repeatedly that some who need such assistance are reject advice from a "participant" out of fear that the participant is "very interested" and thus would manipulate their explanations to serve some unseen agenda or master.) 5. At the risk of repeating myself, the idea of a simple transition, with no separability or designed-in anticipation of separation, was rejected in this group a long time ago, and after months of arduous discussion. I have not heard widespread discontent with that choice. Making a more complex choice obviously led to more complex implementation. I happen to think it's going quite well, though not without occasional bumps and hurdles. It's certainly not gone so pear-shaped that it should be scrapped. I will grant that for those "less interested" (in the non-pejorative sense of being less involved) may feel they have lost the thread a bit. If there are webinars or recap meetings that could help those who feel that way, it might be a good thing. Those who are lost, perplexed or confused often tend to imagine monsters around every bend where there's nothing to behold, and that should be avoided to the extent possible through explanation and edification. 6. The fact that various bodies have no experience with something that doesn't exist yet also seems rather obvious, but not one to engender massive changes at the last minute. That was rather to be expected, wasn't it? An alternate reality without reorganization and separability (or one where any work on that is shelved) has a certain charm and attraction in its relative simplicity. However, I see nothing in our current state of affairs that would support in any way a plan drastically dismantle something that has been approved by every community, the ICANN Board and the NTIA just for the sake of taking a deep breath and looking around a bit. On the other hand, I can imagine quite a number of negative consequences from doing so at this late date, or even attempting to do so. It's far better to make sure that we are "socializing" this plan as often as possible so that "monsters under the bed" of mistrust and opportunism can be pointed out to be mere dust balls that disintegrate just by blowing on them. Apologies for breaking my promise of brevity. Greg On Tue, Aug 9, 2016 at 1:01 PM, Christopher Wilkinson <lists@christopherwilkinson.eu<mailto:lists@christopherwilkinson.eu>> wrote: Dear Jonathan, Dear Lise: I do not support this option. I consider that the constitution of PTI should be deferred until the Nominating Committee has made its appointments. Although I respect and admire the offer from the Co-Chairs to act as temporary alternates for the - not-yet-appointed - NomCom Directors, I would be concerned that you - as PTI Board members - would be subject to unreasonable and unmanageable pressures meanwhile, including in the election of a Chair of the PTI Board. In the light of recent experience, I note that CWG has been driven by a few very interested stakeholders towards a position that would facilitate, if not anticipate, an early separation of PTI from ICANN and its probable severance into two or three distinct entities, and that this orientation has been facilitated, if not explicitly supported, by CWG counsel. Whereas I am reasonable certain that this does not represent the opinion of a wide range of other stakeholders. Also, I suggest that it is time to call a halt to the vast volume of impenetrable legalese that has been generated in the matters of the PTI Bylaws, the licensing of IANA IPR, and the so-called Annexe C. Most of which is unnecessary for the Transition at this stage when - apparently - time is of the essence. Particularly as some of this material purports to address aspects of Internet management about which there are - to the best of my knowledge - no current concerns. Specifically, all discussion of the legal aspects of eventual separation, severance or separability, should be deferred until the Empowered Community has effectively taken a decision that we wish to move in that direction, the procedures for which having been defined in the Transition proposal. More generally, the Empowered Community, the PTI Board, and - dare I say so - CWG's Legal Counsel have, perforce to date, no experience in the implementation of the proposed Transition. I suggest that it would be prudent to let the Transition function, as proposed and approved, for 12 to 18 months before going any further. Meanwhile we should avoid proposals that are so detailed and abstract that they engender at best mistrust and at worst a fear of opportunism. Regards Christopher Wilkinson On 09 Aug 2016, at 17:30, Jonathan Robinson <jrobinson@afilias.info<mailto:jrobinson@afilias.info>> wrote: Hi Sharon. The IOTF was simply put in place to provide a high-frequency touch point for ICANN staff as they worked on the implementation. The context for the introduction of the IOTF was the “secondment issue” whereby ICANN staff got too far ahead of the community in their implementation work. The IOTF had no decision making capabilities, these remained reserved for the CWG. Therefore, I am not sure it is necessary to reference the IOTF. Accordingly, I would suggest rewording the below as: • CWG-Stewardship Comment: The CWG recognized that the Nominating Committee process for selecting the PTI Nominating Committee Directors would not be in place prior to the transition and therefore recommended that the two directors be identified prior to the transition to serve in the interim until the first election of PTI directors. It was proposed that the Co-chairs of the CWG-Stewardship, Lise Fuhr and Jonathan Robinson, serve as the initial Nominating Committee Directors until the first election of the PTI directors. The CWG-Stewardship supports this proposal. Should these individuals be unable to serve, the CWG-Stewardship would select qualified alternate nominees, and appointment of these alternate nominees would be subject to ICANN’s approval (not to be unreasonably withheld, conditioned or delayed). The CWG-Stewardship proposes that Section 5.5.1 of the Draft PTI Bylaws be modified as set forth below to describe the process for selecting the initial Nominating Committee Directors to be in place at the time of transition. Any comment from others? Thanks, Jonathan From: Flanagan, Sharon [mailto:sflanagan@<mailto:sflanagan@>sidley.com<http://sidley.com>] Sent: 09 August 2016 06:12 To: Client Committee <cwg-client@icann.org<mailto:cwg-client@icann.org>> Subject: [client com] FW: CWG Comment Letter - PTI Bylaws Dear Client Committee, Attached is a revised draft of the CWG comment letter to the PTI bylaws. This reflects revisions to #4 and #5 of the comment letter. Specifically, we have revised the draft to address the appointment of Lise and Jonathan as the initial non-ICANN PTI directors. In particular, we would appreciate a review of the description of the IOTF work below for accuracy since we were not directly involved in those discussions. Given the tight timing (comments are due on Thursday), we are sending this to you and ICANN legal simultaneously, and they may have further comments. Best regards, Sharon 1. Initial Directors (Section 5.5.1) • Text from Draft PTI Bylaws: For the appointment of the initial directors of PTI, Section 5.5.1 of the Draft PTI Bylaws provides as follows: “Other than Directors initially appointed by the incorporator of the Corporation (which Directors shall hold office until the first election of Directors) and the President of the Corporation, the Directors shall be elected by the Member at the annual meeting of the Corporation….” • CWG-Stewardship Comment: In connection with the work of the Implementation Oversight Task Force, it was noted that the Nominating Committee process for selecting the PTI Nominating Committee Directors would not be in place prior to the transition and recommended that the two directors be identified prior to the transition to serve in the interim until the first election of PTI directors. It was recommended that the Co-chairs of the CWG-Stewardship, Lise Fuhr and Jonathan Robinson, serve as the initial Nominating Committee Directors until the first election of the PTI directors. The CWG-Stewardship supports this recommendation. Should these individuals be unable to serve, the CWG-Stewardship would select qualified alternate nominees, and appointment of these alternate nominees would be subject to ICANN’s approval (not to be unreasonably withheld, conditioned or delayed). The CWG-Stewardship proposes that Section 5.5.1 of the Draft PTI Bylaws be modified as set forth below to describe the process for selecting the initial Nominating Committee Directors to be in place at the time of transition. “Each initial Director of the Corporation shall hold office until the first election of Directors for such Director’s seat. Other than The initial Directors initially shall be appointed by theMember incorporator of the Corporation (which Directors shall hold office until the first election of Directors), with the Cross Community Working Group to Develop an IANA Stewardship Transition Proposal on Naming Related Functions selecting two qualified nominees for appointment as the initial Nominating Committee Directors by the Member. Other than the initial Directors and the President of the Corporation, the Directors shall be elected by the Member at the annual meeting....” **************************************************************************************************** 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. **************************************************************************************************** _______________________________________________ Cwg-client mailing list Cwg-client@icann.org<mailto:Cwg-client@icann.org> https://mm.icann.org/mailman/listinfo/cwg-client _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org<mailto:CWG-Stewardship@icann.org> https://mm.icann.org/mailman/listinfo/cwg-stewardship
Dear All I support Christopher The response is non proportionate insensitive to the comment, People should not take themselves as spokesman of god. Too much complexity, too lengthy too difficult and too much theory in this process . I do not know who benefit of this Regards Kavouss 2016-08-09 20:03 GMT+02:00 Greg Shatan <gregshatanipc@gmail.com>:
A few brief thoughts in response.
1. Don't let the perfect be the enemy of the good. PTI is a necessary element of the transaction and the Board is a element of the transition. What's suggested here would pull the entire Transition over to the side, at least until some workaround was developed. Initial Directors are commonplace in setting up new corporations. I trust that Jonathan and Lise, both with significant experience in senior management and board matters, will withstand whatever apocryphal pressure might be put upon them.
2. I'm not sure what a "very interested stakeholder" is. If this means a very dedicated stakeholder, who is very interested in assisting the community in achieving its goals and who will work on these matters in spite of personal and professional interests in doing other things, I'll admit to that. If this means someone who is operating in this CWG at the behest of "special interests" and whose actions are designed to advancing the undisclosed goals of those special interests, I categorically reject and resent that. (The latter description might apply to others, and that's reasonable; it's just not my position, and if you are referring to others, then I withdraw my sense of umbrage.)
3. Personally, I don't have any particular affinity for the PTI solution, and I was opposed to removing the IANA IPR from ICANN. Both of these were supported by the consensus of this group, as was the overall concept of enhancing "separability." On the latter point, I could have chosen to sulk and withdraw (or insist I was right long after it became an annoyance to the group). I chose neither; rather, I pitched in and worked on accomplishing the CWG's chosen goal to the best of my ability. I felt this was and is the right approach as a good community member and "multistakeholder." I won't speak for CWG counsel, but any counsel's role is to advise and caution on risks and concerns, and when the path is chosen, to assist the client in seeing it through. The fact that CWG's counsel is facilitating the chosen approach of the CWG is manifestly unexceptional; anything other than that would be peculiar, to say the least. Finally, to see in this some grand and concerted plan to dismantle ICANN (as the IANA) seems rather hypervigilant, to say the least. If someone has such a grand plan, I'm no better than a "useful idiot" in that regard. I wouldn't discount it entirely as someone's plan or goal (and I have had my own musings on that front, without naming names), but I do not ascribe it to some larger group (and certainly not any group of which I am a part).
4. The fact that legal documents (Bylaws, Articles of Incorporation, Agreements) contain legal language should not be shocking. "Legalese" is often a pejorative term, and I avoid it here to avoid misinterpretation. These documents are in fact necessary to implement the transition as designed. If anyone finds the documents "impenetrable" in whole or in part, I'm sure that Sidley would be more than happy to walk through the documents line by line and explain them all to you (at their usual hourly rate). (I might volunteer to do the same, but I've learned repeatedly that some who need such assistance are reject advice from a "participant" out of fear that the participant is "very interested" and thus would manipulate their explanations to serve some unseen agenda or master.)
5. At the risk of repeating myself, the idea of a simple transition, with no separability or designed-in anticipation of separation, was rejected in this group a long time ago, and after months of arduous discussion. I have not heard widespread discontent with that choice. Making a more complex choice obviously led to more complex implementation. I happen to think it's going quite well, though not without occasional bumps and hurdles. It's certainly not gone so pear-shaped that it should be scrapped. I will grant that for those "less interested" (in the non-pejorative sense of being less involved) may feel they have lost the thread a bit. If there are webinars or recap meetings that could help those who feel that way, it might be a good thing. Those who are lost, perplexed or confused often tend to imagine monsters around every bend where there's nothing to behold, and that should be avoided to the extent possible through explanation and edification.
6. The fact that various bodies have no experience with something that doesn't exist yet also seems rather obvious, but not one to engender massive changes at the last minute. That was rather to be expected, wasn't it? An alternate reality without reorganization and separability (or one where any work on that is shelved) has a certain charm and attraction in its relative simplicity. However, I see nothing in our current state of affairs that would support in any way a plan drastically dismantle something that has been approved by every community, the ICANN Board and the NTIA just for the sake of taking a deep breath and looking around a bit. On the other hand, I can imagine quite a number of negative consequences from doing so at this late date, or even attempting to do so. It's far better to make sure that we are "socializing" this plan as often as possible so that "monsters under the bed" of mistrust and opportunism can be pointed out to be mere dust balls that disintegrate just by blowing on them.
Apologies for breaking my promise of brevity.
Greg
On Tue, Aug 9, 2016 at 1:01 PM, Christopher Wilkinson < lists@christopherwilkinson.eu> wrote:
Dear Jonathan, Dear Lise:
I do not support this option. I consider that the constitution of PTI should be deferred until the Nominating Committee has made its appointments. Although I respect and admire the offer from the Co-Chairs to act as temporary alternates for the - not-yet-appointed - NomCom Directors, I would be concerned that you - as PTI Board members - would be subject to unreasonable and unmanageable pressures meanwhile, including in the election of a Chair of the PTI Board.
In the light of recent experience, I note that CWG has been driven by a few very interested stakeholders towards a position that would facilitate, if not anticipate, an early separation of PTI from ICANN and its probable severance into two or three distinct entities, and that this orientation has been facilitated, if not explicitly supported, by CWG counsel. Whereas I am reasonable certain that this does not represent the opinion of a wide range of other stakeholders.
Also, I suggest that it is time to call a halt to the vast volume of impenetrable legalese that has been generated in the matters of the PTI Bylaws, the licensing of IANA IPR, and the so-called Annexe C. Most of which is unnecessary for the Transition at this stage when - apparently - time is of the essence. Particularly as some of this material purports to address aspects of Internet management about which there are - to the best of my knowledge - no current concerns. Specifically, all discussion of the legal aspects of eventual separation, severance or separability, should be deferred until the Empowered Community has effectively taken a decision that we wish to move in that direction, the procedures for which having been defined in the Transition proposal.
More generally, the Empowered Community, the PTI Board, and - dare I say so - CWG's Legal Counsel have, perforce to date, no experience in the implementation of the proposed Transition. I suggest that it would be prudent to let the Transition function, as proposed and approved, for 12 to 18 months before going any further. Meanwhile we should avoid proposals that are so detailed and abstract that they engender at best mistrust and at worst a fear of opportunism.
Regards
Christopher Wilkinson
On 09 Aug 2016, at 17:30, Jonathan Robinson <jrobinson@afilias.info> wrote:
Hi Sharon.
The IOTF was simply put in place to provide a high-frequency touch point for ICANN staff as they worked on the implementation. The context for the introduction of the IOTF was the “secondment issue” whereby ICANN staff got too far ahead of the community in their implementation work. The IOTF had no decision making capabilities, these remained reserved for the CWG. Therefore, I am not sure it is necessary to reference the IOTF.
Accordingly, I would suggest rewording the below as:
· *CWG-Stewardship Comment*: The CWG recognized that the Nominating Committee process for selecting the PTI Nominating Committee Directors would not be in place prior to the transition and therefore recommended that the two directors be identified prior to the transition to serve in the interim until the first election of PTI directors. It was proposed that the Co-chairs of the CWG-Stewardship, Lise Fuhr and Jonathan Robinson, serve as the initial Nominating Committee Directors until the first election of the PTI directors. The CWG-Stewardship supports this proposal. Should these individuals be unable to serve, the CWG-Stewardship would select qualified alternate nominees, and appointment of these alternate nominees would be subject to ICANN’s approval (not to be unreasonably withheld, conditioned or delayed). The CWG-Stewardship proposes that Section 5.5.1 of the Draft PTI Bylaws be modified as set forth below to describe the process for selecting the initial Nominating Committee Directors to be in place at the time of transition.
Any comment from others?
Thanks,
Jonathan
*From:* Flanagan, Sharon [mailto:sflanagan@sidley.com] *Sent:* 09 August 2016 06:12 *To:* Client Committee <cwg-client@icann.org> *Subject:* [client com] FW: CWG Comment Letter - PTI Bylaws
Dear Client Committee,
Attached is a revised draft of the CWG comment letter to the PTI bylaws. This reflects revisions to #4 and #5 of the comment letter. Specifically, we have revised the draft to address the appointment of Lise and Jonathan as the initial non-ICANN PTI directors.
In particular, we would appreciate a review of the description of the IOTF work below for accuracy since we were not directly involved in those discussions.
Given the tight timing (comments are due on Thursday), we are sending this to you and ICANN legal simultaneously, and they may have further comments.
Best regards, Sharon
*1. **Initial Directors (Section 5.5.1)*
· *Text from Draft PTI Bylaws**: *For the appointment of the initial directors of PTI, Section 5.5.1 of the Draft PTI Bylaws provides as follows: “Other than Directors initially appointed by the incorporator of the Corporation (which Directors shall hold office until the first election of Directors) and the President of the Corporation, the Directors shall be elected by the Member at the annual meeting of the Corporation….”
· *CWG-Stewardship Comment*: In connection with the work of the Implementation Oversight Task Force, it was noted that the Nominating Committee process for selecting the PTI Nominating Committee Directors would not be in place prior to the transition and recommended that the two directors be identified prior to the transition to serve in the interim until the first election of PTI directors. It was recommended that the Co-chairs of the CWG-Stewardship, Lise Fuhr and Jonathan Robinson, serve as the initial Nominating Committee Directors until the first election of the PTI directors. The CWG-Stewardship supports this recommendation. Should these individuals be unable to serve, the CWG-Stewardship would select qualified alternate nominees, and appointment of these alternate nominees would be subject to ICANN’s approval (not to be unreasonably withheld, conditioned or delayed). The CWG-Stewardship proposes that Section 5.5.1 of the Draft PTI Bylaws be modified as set forth below to describe the process for selecting the initial Nominating Committee Directors to be in place at the time of transition.
“*Each initial Director of the Corporation shall hold office until the first election of Directors for such Director’s seat. *Other than *The initial *Directors initially *shall be* appointed by the*Member* incorporator of the Corporation (which Directors shall hold office until the first election of Directors)*, with the Cross Community Working Group to Develop an IANA Stewardship Transition Proposal on Naming Related Functions selecting two qualified nominees for appointment as the initial Nominating Committee Directors by the Member. Other than the initial Directors* and the President of the Corporation, the Directors shall be elected by the Member at the annual meeting....”
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Hi, On Tue, Aug 09, 2016 at 07:01:47PM +0200, Christopher Wilkinson wrote:
I suggest that it would be prudent to let the Transition function, as proposed and approved, for 12 to 18 months before going any further.
For the most part, I will take no position (which does not entail disagreement, please note) on most of the positions in your mail, but I don't actually understand the above sentence in relation to the current thread. In order to have the transition, PTI needs to be working and to be an independent organization. So it needs a board. This was a requirement of the ICG proposal. In order to have the transition, the IPR needs to go to some organization other than ICANN. That was also a requirement of the ICG proposal. So what would it meant to "let the Transition function" without these preconditions being met? Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com
Dear All, This is no problem Johann toon us around afterwards took beem- Heaps of love Max dear Misivkha glen Kind regards, Glen de Saint Géry Manager Supporting Organisations Advisory Committees Internet Corporation for Assigned Names & Numbers - ICANN glen@icann.org http://www.icann.org -----Original Message----- From: cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Andrew Sullivan Sent: mardi 9 août 2016 23:35 To: cwg-stewardship@icann.org Subject: [CWG-Stewardship] "let the transition function" (was Re: [client com] CWG Comment Letter - PTI Bylaws) Hi, On Tue, Aug 09, 2016 at 07:01:47PM +0200, Christopher Wilkinson wrote:
I suggest that it would be prudent to let the Transition function, as proposed and approved, for 12 to 18 months before going any further.
For the most part, I will take no position (which does not entail disagreement, please note) on most of the positions in your mail, but I don't actually understand the above sentence in relation to the current thread. In order to have the transition, PTI needs to be working and to be an independent organization. So it needs a board. This was a requirement of the ICG proposal. In order to have the transition, the IPR needs to go to some organization other than ICANN. That was also a requirement of the ICG proposal. So what would it meant to "let the Transition function" without these preconditions being met? Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship
Hello all, I usually agree with a lot of points that Christopher makes, but on this occasion, I disagree. PTI needs to be operational for the transition to take place. For this, it needs a Board. It is not uncommon to have temporary appointments. I consider Jonathan and Lise to be of such calibre, trust and experience that they are the perfect people to fill these temporary positions. I also consider that, having no skin in the game and with their extensive experience, they would be absolutely able to push back on any "unreasonable and unmanageable pressures". The only concern I could see is that there would be irrelevant accusations of "insiders filling positions". But what alternative do we have? Deferring the constitution of PTI is not an option. Kindest regards, Olivier (own views) On 09/08/2016 19:01, Christopher Wilkinson wrote:
Dear Jonathan, Dear Lise:
I do not support this option. I consider that the constitution of PTI should be deferred until the Nominating Committee has made its appointments. Although I respect and admire the offer from the Co-Chairs to act as temporary alternates for the - not-yet-appointed - NomCom Directors, I would be concerned that you - as PTI Board members - would be subject to unreasonable and unmanageable pressures meanwhile, including in the election of a Chair of the PTI Board.
In the light of recent experience, I note that CWG has been driven by a few very interested stakeholders towards a position that would facilitate, if not anticipate, an early separation of PTI from ICANN and its probable severance into two or three distinct entities, and that this orientation has been facilitated, if not explicitly supported, by CWG counsel. Whereas I am reasonable certain that this does not represent the opinion of a wide range of other stakeholders.
Also, I suggest that it is time to call a halt to the vast volume of impenetrable legalese that has been generated in the matters of the PTI Bylaws, the licensing of IANA IPR, and the so-called Annexe C. Most of which is unnecessary for the Transition at this stage when - apparently - time is of the essence. Particularly as some of this material purports to address aspects of Internet management about which there are - to the best of my knowledge - no current concerns. Specifically, all discussion of the legal aspects of eventual separation, severance or separability, should be deferred until the Empowered Community has effectively taken a decision that we wish to move in that direction, the procedures for which having been defined in the Transition proposal.
More generally, the Empowered Community, the PTI Board, and - dare I say so - CWG's Legal Counsel have, perforce to date, no experience in the implementation of the proposed Transition. I suggest that it would be prudent to let the Transition function, as proposed and approved, for 12 to 18 months before going any further. Meanwhile we should avoid proposals that are so detailed and abstract that they engender at best mistrust and at worst a fear of opportunism.
Regards
Christopher Wilkinson
On 09 Aug 2016, at 17:30, Jonathan Robinson <jrobinson@afilias.info <mailto:jrobinson@afilias.info>> wrote:
Hi Sharon.
The IOTF was simply put in place to provide a high-frequency touch point for ICANN staff as they worked on the implementation. The context for the introduction of the IOTF was the “secondment issue” whereby ICANN staff got too far ahead of the community in their implementation work. The IOTF had no decision making capabilities, these remained reserved for the CWG. Therefore, I am not sure it is necessary to reference the IOTF.
Accordingly, I would suggest rewording the below as:
· */CWG-Stewardship Comment/*: The CWG recognized that the Nominating Committee process for selecting the PTI Nominating Committee Directors would not be in place prior to the transition and therefore recommended that the two directors be identified prior to the transition to serve in the interim until the first election of PTI directors. It was proposed that the Co-chairs of the CWG-Stewardship, Lise Fuhr and Jonathan Robinson, serve as the initial Nominating Committee Directors until the first election of the PTI directors. The CWG-Stewardship supports this proposal. Should these individuals be unable to serve, the CWG-Stewardship would select qualified alternate nominees, and appointment of these alternate nominees would be subject to ICANN’s approval (not to be unreasonably withheld, conditioned or delayed). The CWG-Stewardship proposes that Section 5.5.1 of the Draft PTI Bylaws be modified as set forth below to describe the process for selecting the initial Nominating Committee Directors to be in place at the time of transition.
Any comment from others?
Thanks,
Jonathan
*From:* Flanagan, Sharon [mailto:sflanagan@sidley.com <http://sidley.com>] *Sent:* 09 August 2016 06:12 *To:* Client Committee <cwg-client@icann.org <mailto:cwg-client@icann.org>> *Subject:* [client com] FW: CWG Comment Letter - PTI Bylaws
Dear Client Committee,
Attached is a revised draft of the CWG comment letter to the PTI bylaws. This reflects revisions to #4 and #5 of the comment letter. Specifically, we have revised the draft to address the appointment of Lise and Jonathan as the initial non-ICANN PTI directors.
In particular, we would appreciate a review of the description of the IOTF work below for accuracy since we were not directly involved in those discussions.
Given the tight timing (comments are due on Thursday), we are sending this to you and ICANN legal simultaneously, and they may have further comments.
Best regards, Sharon
*1. **Initial Directors (Section 5.5.1)* * * · */Text from Draft PTI Bylaws/**: *For the appointment of the initial directors of PTI, Section 5.5.1 of the Draft PTI Bylaws provides as follows: “Other than Directors initially appointed by the incorporator of the Corporation (which Directors shall hold office until the first election of Directors) and the President of the Corporation, the Directors shall be elected by the Member at the annual meeting of the Corporation….”
· */CWG-Stewardship Comment/*: In connection with the work of the Implementation Oversight Task Force, it was noted that the Nominating Committee process for selecting the PTI Nominating Committee Directors would not be in place prior to the transition and recommended that the two directors be identified prior to the transition to serve in the interim until the first election of PTI directors. It was recommended that the Co-chairs of the CWG-Stewardship, Lise Fuhr and Jonathan Robinson, serve as the initial Nominating Committee Directors until the first election of the PTI directors. The CWG-Stewardship supports this recommendation. Should these individuals be unable to serve, the CWG-Stewardship would select qualified alternate nominees, and appointment of these alternate nominees would be subject to ICANN’s approval (not to be unreasonably withheld, conditioned or delayed). The CWG-Stewardship proposes that Section 5.5.1 of the Draft PTI Bylaws be modified as set forth below to describe the process for selecting the initial Nominating Committee Directors to be in place at the time of transition.
“_Each initial Director of the Corporation shall hold office until the first election of Directors for such Director’s seat. _Other than _The initial _Directors initially _shall be_ appointed by the_Member_ incorporator of the Corporation (which Directors shall hold office until the first election of Directors)_, with the Cross Community Working Group to Develop an IANA Stewardship Transition Proposal on Naming Related Functions selecting two qualified nominees for appointment as the initial Nominating Committee Directors by the Member. Other than the initial Directors_ and the President of the Corporation, the Directors shall be elected by the Member at the annual meeting....”
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participants (13)
-
Allan MacGillivray -
Andrew Sullivan -
avri doria -
Christopher Wilkinson -
Glen de Saint Géry -
Gomes, Chuck -
Greg Shatan -
James Gannon -
Kavouss Arasteh -
Kurt Pritz -
matthew shears -
Mueller, Milton L -
Olivier MJ Crepin-Leblond