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

Seun Ojedeji seun.ojedeji at gmail.com
Thu Jan 21 18:34:40 UTC 2016


On 21 Jan 2016 7:04 p.m., "Greg Shatan" <gregshatanipc at gmail.com> wrote:
>
>
>
>
> ​  Without the date, the document would not be considered adequately
identified.​
>>
>> 5. If the group/ASO determines to leave the date then there is really no
need to include the last part "...as it may be amended from time to time in
accordance with its terms." As it sounds like explanation/rationale that
does not need to be in a mission statement.
>
> GSS: ​This language is also standard operating procedure, and its effect
is to remove the problem you mention under your point 4 (needing to update
the reference in the bylaws if the MoU is amended).​
>
SO: Okay this is good to know, from your explanation it means MoU can
change without need to update the date on the mission statement. This fine
then as I was thinking the document signed on the date initially referenced
is what the courts will be looking for (not that I hope it gets to that
level anyway)

Thanks for this important clarification

Regards

>>
>> 6. As I have already indicated to Izumi privately, I would have
preferred a text reading as follows:
>> "Coordinates the allocation and assignment at the top-most level of
Internet Protocol (“IP”) and Autonomous System (“AS”) numbers.  Further, it
ratifies, at the global level, policies related to these IP and AS numbers
and developed according to the global policy development process"
>>
>> My rationale is because that section is referring to policies.
Nevertheless, I am still fine with indicating MoU instead if everyone is
okay with that since the gPDP is part of it.
>>
>> Regards
>>
>> On 21 Jan 2016 04:05, "Rosemary E. Fei" <rfei at adlercolvin.com> wrote:
>>>
>>> Dear CCWG ACCT Co-Chairs, Members, Participants and ICANN Staff:
>>>
>>>
>>>
>>> In response to our high-level concern presented in an email from Holly
Gregory and me on January 19, 2016 (included below), we received an email
from Izumi Okutani on behalf of the ASO proposing an alternative intended
to address our concern (also included below).  We thank the ASO and Izumi
for the thoughtful response.  This email responds to the ASO’s proposal;
please treat this as an addendum to our high-level concern.
>>>
>>>
>>>
>>> The ASO has proposed the following alternative language for the
description of ICANN’s mission with respect to the numbers function:
>>>
>>>
>>>
>>> Coordinates the allocation and assignment at the top-most level of
Internet Protocol (“IP”) and Autonomous System (“AS”) numbers.  Further, it
ratifies, at the global level, policies related to these IP and AS numbers
and developed according to the ASO-MoU.
>>>
>>>
>>>
>>> We think this approach is helpful, and adequately solves the problem of
referring to the MOU to define ICANN’s mission.
>>>
>>>
>>>
>>> However, we don’t understand how ICANN’s mission can be to “ratify”
something, so we would change “ratifes” to “implements”.  To ratify implies
the power to NOT ratify, and we do not understand that to be what ASO has
proposed or the CCWG has agreed to.
>>>
>>>
>>>
>>> We are comfortable with ICANN’s mission including implementation of
policies developed under the MOU, understanding that those are narrow,
technical policies within the ASO’s expertise, which will be developed
under a process the community has found appropriate to the need.
>>>
>>>
>>>
>>> We think the reference to the MOU needs to be more specific.
>>>
>>>
>>>
>>> Reflecting these comments, our high-level concern will be fully
addressed if the ASO proposal is modified as follows and adopted by the
CCWG:
>>>
>>>
>>>
>>> Coordinates the allocation and assignment at the top-most level of
Internet Protocol (“IP”) and Autonomous System (“AS”) numbers. Further, it
implements, at the global level, policies related to these IP and AS
numbers and developed pursuant to the Memorandum of Understanding between
ICANN and the ASO dated [most recent version date], as it may be amended
from time to time in accordance with its terms.
>>>
>>>
>>>
>>> Rosemary and Holly
>>>
>>>
>>>
>>> Rosemary E. Fei
>>> Adler & Colvin
>>> 235 Montgomery Street, Suite 1220
>>> San Francisco, CA 94104
>>> 415/421-7555 (phone)
>>> 415/421-0712 (fax)
>>> rfei at adlercolvin.com
>>> www.adlercolvin.com
>>>
>>>
>>>
>>> _____________________________
>>>
>>> Adler & Colvin is a San Francisco Green Business certified by the City
and County of San Francisco. Please consider the environment before you
print this email.
>>>
>>>
>>>
>>>
>>>
>>> ________________________________
>>>
>>> From: Izumi Okutani
>>> Sent: Tuesday, January 19, 2016 12:59:10 AM
>>> To: Gregory, Holly; 'Mathieu Weill'; thomas at rickert.net; León Felipe
Sánchez Ambía; accountability-cross-community at icann.org;
acct-staff at icann.org
>>> Cc: Sidley ICANN CCWG; Greeley, Amy E.; Grapsas, Rebecca;
ICANN at adlercolvin.com
>>> Subject: Re: [CCWG-ACCT] Lawyer's High Level Review re Proposal to
Refer to 2004 ASO MOU in Mission Statement (Annex 5, Third Proposal)
>>>
>>> Dear Holly and all,
>>>
>>> Thank you for this analysis.
>>>
>>> I note the strong concern here is that with reference to the ASO about
the Mission, the ICANN Mission on the number resources can be changed, with
agreement between ICANN and RIRs, without going through the standard
process of changes in the Bylaws.
>>>
>>> We had further discussions in the ASO and to address this concern, we
would like to suggest the alternative text below:
>>>
>>> "Coordinates the allocation and assignment at the top-most level of
Internet Protocol (“IP”) and Autonomous System (“AS”) numbers. Further, it
ratifies, at the global level, policies related to these IP and AS numbers
and developed according to the ASO-MoU."
>>>
>>>  - While it still appears to reference the ASO MoU, the important
difference from the previous text is that it is *not referenced to describe
ICANN's Mission*.
>>>
>>>  - What it basically says is that ICANN's Mission on the number
resources is to ratify global policies according to the ASO MoU.
>>>    i.e., If there are changes ICANN's Mission in its relation to
ratification of global policies, expansion of its Mission, or deleting this
part of the Mission, it will need to go through the standard process of the
changes in the Bylaws. It will not change, expand or remove ICANN's Mission
without the agreed process proposed in the CCWG, just like any other parts
of the Mission Statement.
>>>
>>>  - Given the reference to the ASO MoU on the alternative text is
limited to the ratification of global policies, even if the MoU can be
changed based on agreement between ICANN and RIRs (as it is today), the
scope of change is limited to how ICANN ratifies the global policies on the
number resources.
>>>
>>>  - Until today, the ratification of global number resources policies
has been based on agreement between ICANN and RIRs per what is described in
the ASO MoU, which does not affect the wider ICANN communities outside the
ASO.
>>>
>>> Izumi
>>>
>>> On 2016/01/19 5:27, Gregory, Holly wrote:
>>>
>>> > 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 a
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