[CCWG-ACCT] Lawyer's High Level Review re Proposal to Refer to 2004 ASO MOU in Mission Statement (Annex 5, Third Proposal)

Mon Jan 18 21:53:40 UTC 2016

Dear holly,

Thank you very much for your clear legal view:

There is a proverb in Persian language which could roughly translated as
follows:

“Whatever, the junior observes in a Mirror, the senior ( age)  could
observe in the Stone”

I  submitted exactly in one of message to the mailing list several weeks
ago the same argument  that that you described in this message that

Article 1 of Fundamental Bylaws including Mission  is the supreme / highest
level of text in the ICANN text and thus issues such as MoU which as it
self-described itself is merely Memorandum and nothing more than that
should not appear in the highest level of the ICANN TEXT.

I went even beyond your suggestion in arguing that cross reference in the
legal document would almost provide the same level of the main text to the
crossed referenced text.

I therefore suggest , should we all agree by consensus to cross reference
ANY MoU, paraphrase that by a term;” See also MoU XXX as an informative
reference thus would not give a formative status to any MoU due to the fact
that MoU does not have any mandatory status as it is a “ Memorandum of
Understanding only. Something which has a memorandum status is just for
memorandum “aide memoire “, In French, and nothing more than that.

I have noticed that many such arguments that I have made were simply
rejected for other grounds than professional

But I am used to it and do not take it serious.

Another Persian Proverb says

“ I have told you whatever should I had told you , it is up to you to take
it or reject it “

I do not wish to argue with anybody as I accept many thing that are not
disturbing but I can not agree that mandatory legal terms / provisions
contains or cross reference to non mandatory provisions due to the fact
that the non-mandatory provision such as MoU may change with time thus the
mandatory provisions would be subordinated with something which could
easily change such as MoU.

I SPENT 40 YEARS IN  dealing with such DOMAIN

Kavouss

2016-01-18 21:27 GMT+01:00 Gregory, Holly <holly.gregory at sidley.com>:

> Dear CCWG ACCT Co-Chairs, Members, Participants and ICANN Staff,
>
>
>
> We are writing to raise with you a high-level concern regarding the
> proposal to reference the 2004 Address Supporting Organization MOU (the
> “MOU”) in ICANN’s Mission Statement (Bylaws Article I, Section 1), which
> was discussed on CCWG-ACCT Call #77 (January 14).
>
> In defining ICANN’s role in coordinating allocation and assignment at the
> top-most level of IP and AS numbers, Annex 05 from the Third Proposal
> provided as follows: “ICANN’s Mission is described in the ASO MoU between
> ICANN and RIRs.”
>
> *We **recommend against trying to further define ICANN’s Mission through
> cross-reference to the MOU in the Bylaws and suggest that any specific
> language that you deem of critical import to defining ICANN’s Mission be
> actually incorporated.  (We could not find a clear statement of the ICANN
> Mission in the MOU.)*
>
> As a general matter, referencing all or part of an external agreement in
> bylaws presents a number of problems.  For example:
>
>
>
> ·         The bylaws may require a different process, parties, and
> threshold for amendment than the referenced agreement, and it is unclear
> legally which rules apply.  This problem is certainly present here.
> Although the Mission will be a fundamental bylaw, the parties to the MOU
> could amend it on their own, circumventing the fundamental bylaw amendment
> process entirely.  Alternatively, perhaps the MOU’s amendment provisions
> would be superceded by the fundamental bylaw amendment process.  At a
> minimum, if the reference remains despite our advice, this issue should be
> addressed explicitly.
>
>
>
> ·         Referencing an outside agreement in bylaws may have the legal
> effect of incorporating it into the bylaws, putting all its terms on an
> equal footing with the bylaws, which can create problems if its provisions
> conflict with the bylaws in any way.  This issue has a greater chance of
> arising  where an entire agreement is incorporated by reference, and is
> clearly a problem here.  For example, ICANN’s Bylaws are ultimately
> governed by California law, but the MOU provides that it will be governed
> by International Chamber of Commerce rules in Bermuda.  Again, if the
> reference remains despite our advice, the CCWG should decide which document
> governs in case of conflict (either generally or on a topic-by-topic basis).
>
> ·         Although we generally recommend against it, clients have
> insisted on incorporating an entire existing agreement in their governing
> documents, essentially freezing the agreement as incorporated.  It was
> suggested on the CCWG call that the Bylaws could reference the version of
> the MOU as of a specific date, excluding from the Bylaws future amendments
> to the MOU unless the community amended the Bylaws to update the reference
> in the Mission.  While this strategy partially solves one problem, it leads
> to others.  Assuming that the MOU incorporated in the Bylaws continues to
> evolve over time outside of the Bylaws, there will be two versions of the
> MOU -- the one in the Bylaws, and the one that documents the current
> understandings between the ASO and ICANN.  At a minimum, this would be
> confusing; in a worst-case scenario, it could undermine the enforceability
> of the post-reference MOU.
>
>
>
> ·         Any outside agreement to be referenced in bylaws must be
> carefully reviewed to assess and address the sorts of consequences noted
> above.  We have briefly reviewed a version of the MOU, and note that the
> MOU itself incorporates other documents by reference, including the earlier
> 2003 version of the ICANN Bylaws, creating a circularity in terms of
> providing legal advice on this provision in the future.
>
>
>
> While we originally thought it might be possible to work around these
> problems by inserting text from the MOU into the Bylaws describing this
> aspect of ICANN’s Mission, after our brief review of the MOU, it is not
> clear to us where or how it describes ICANN’s mission in any narrative
> text.  As we read it the MOU sets out processes and mechanisms for
> developing policies but does not itself describe substantive limits on
> ICANN or purport to define ICANN’s Mission.
>
>
>
> Bylaws may of course include a process for developing a scope of corporate
> activities within the bounds of a larger mission, and the mission can be
> updated as appropriate to reflect developments that come out of this
> process, but the process itself cannot logically become part of the mission.
>
>
>
> We hope further CCWG discussion in light of our concern, regarding the
> goal that the ASO and the community seek by referencing the MOU in the
> Mission Statement, may provide a way forward without referencing the MOU
> itself in the Bylaws.
>
>
>
> Holly and Rosemary
>
>
>
>
>
> *HOLLY J. GREGORY*
> Partner and Co-Chair
> Global Corporate Governance & Executive Compensation Practice
>
>
> *Sidley Austin LLP*
> +1 212 839 5853
> holly.gregory at sidley.com
>
>
>
>
>
>
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