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

Izumi Okutani izumi at nic.ad.jp
Tue Jan 26 14:42:57 UTC 2016


Thank you Seun. Those are indeed the key issues the ASO intended to address, which have been raised so far in the CCWG discussions.

Izumi

On 2016/01/26 23:24, Seun Ojedeji wrote:
> This is well written version, addresses all the concern of MoU, date, word
> "ratifies" vs Implements.... et all. While still capturing the current role
> of ICANN.
> 
> Thanks for providing this re-wording Izumi. Hopefully this can meet
> everyone's/most people's requirement.
> 
> Regards
> 
> On Tue, Jan 26, 2016 at 2:39 PM, Izumi Okutani <izumi at nic.ad.jp> wrote:
> 
>> Dear Rosemary and all,
>>
>>
>> Thank you for your follow up suggestion on the text of ICANN's mission
>> with respect to the numbers function.
>> We had further discussions within the ASO, and would like to suggest the
>> text below.
>>
>> I would be happy to explain key points at the coming call.
>>
>> ---
>> Coordinates the allocation and assignment of the top-most level of
>> Internet Protocol (“IP”) and Autonomous System (“AS”) numbers. In this
>> role, ICANN’s Mission is:
>>
>> 1) to provide registration services and open access for these global
>> number registries as requested by the Internet Engineering Task Force and
>> the Regional Internet Registries, and
>> 2) to facilitate the development of related global number registry
>> policies by the affected community as agreed with the RIRs.
>> ---
>>
>>
>> Izumi
>> on behalf of the ASO
>>
>> On 2016/01/21 12:05, Rosemary E. Fei 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<mailto:
>> thomas at rickert.net>; León Felipe Sánchez Ambía;
>> accountability-cross-community at icann.org<mailto:
>> accountability-cross-community at icann.org>; acct-staff at icann.org<mailto:
>> acct-staff at icann.org>
>>> Cc: Sidley ICANN CCWG; Greeley, Amy E.; Grapsas, Rebecca;
>> ICANN at adlercolvin.com<mailto: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 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<mailto:holly.gregory at sidley.com<mailto:
>> holly.gregory at sidley.com%3cmailto:holly.gregory at sidley.com>>
>>>>
>>>>
>>>>
>>>>
>>>>
>>>>
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