[CCWG-ACCT] TR: Rationale Requirement in Annex D, Section 2.2(c)(i)(A)

[Mathieu Weill]

Dear Colleagues,



As a follow up from the call yesterday, please find below a note from our 
lawyers regarding one of the points we discussed. This is related to the 
requirement to provide rationale when initiating a community power 
escalation process.



Best,

Mathieu



  _____

From: Grapsas, Rebecca
Sent: Tuesday, May 03, 2016 05:24:00 PM
To: Gregory, Holly
Subject: Rationale Requirement in Annex D, Section 2.2(c)(i)(A)

Dear Co-Chairs,

On today’s CCWG call, a concern was raised regarding the requirement to 
provide “specific rationales” in Annex D, Section 2.2(c)(i)(A) (pasted 
below).   As discussed below, this provision is consistent with the CCWG 
Proposal.

As I noted in the chat during today’s call, the general requirement for the 
Petitioning Decisional Participant to provide a rationale for the rejection 
petition (i.e., the first part of (A), highlighted in yellow) was included 
to reflect Annex 2, Paragraph 32 (first bullet, first sub-bullet)), which 
provides that “Within 24 hours of a petition being approved, the petitioning 
Decisional Participant will: Circulate a detailed rationale for proposing to 
use the Community Power to all Decisional Participants. Any SO or AC may 
contribute preliminary thoughts or questions in writing via a specific 
publicly archived email list set up for this specific issue….”



The language in (A) highlighted in green was included to reflect Annex 4, 
Paragraphs 12 and 14:

·        Paragraph 12: “The CCWG-Accountability has determined that a 
separate petition would be required for each budget or strategic/operating 
plan being challenged. A budget or strategic/operating plan could only be 
challenged if there are significant issue(s) brought up in the engagement 
process that were not addressed prior to approval.”

·        Paragraph 14: “A community decision to reject a budget or a plan 
after it has been approved by the ICANN Board will be based on perceived 
inconsistency with the purpose, Mission and role set out in ICANN’s Articles 
and Bylaws; the global public interest; the needs of ICANN stakeholders; 
financial stability, or other matters of concern to the community. The veto 
could only concern issues that had been raised in the public consultations 
conducted before the Board approved the budget or plan.”

Given that a budget or plan can only be rejected based on “perceived 
inconsistency with the purpose, Mission and role set out in ICANN’s Articles 
and Bylaws; the global public interest; the needs of ICANN stakeholders; 
financial stability, or other matters of concern to the community”, the 
Bylaw was drafted to limit the ability to escalate rejection of a budget or 
plan to situations where the rationale includes one or more of those 
specified items.



Annex D, Section 2.2(c)(i)(A):



(c) A Decisional Participant that has received a Rejection Action Petition 
shall either accept or reject such Rejection Action Petition; provided that 
a Decisional Participant may only accept such Rejection Action Petition if 
it was received by such Decisional Participant during the Rejection Action 
Petition Period.

(i) If, in accordance with the requirements of Section 2.2(c) of this Annex 
D, a Decisional Participant accepts a Rejection Action Petition during the 
Rejection Action Petition Period, the Decisional Participant shall promptly 
provide to the EC Administration, the other Decisional Participants and the 
Secretary written notice (“Rejection Action Petition Notice”) of such 
acceptance (such Decisional Participant, the “Rejection Action Petitioning 
Decisional Participant”), and ICANN shall promptly post such Rejection 
Action Petition Notice on the Website. The Rejection Action Petition Notice 
shall also include:

(A) the rationale upon which rejection of the Rejection Action is sought. 
Where the Rejection Action Petition Notice relates to an ICANN Budget, an 
IANA Budget, an Operating Plan or a Strategic Plan, the Rejection Action 
Petition Notice shall not be valid and shall not be accepted by the EC 
Administration unless the rationale set forth in the Rejection Action 
Petition Notice is based on one or more significant issues that were 
specifically raised in the applicable public comment period(s) relating to 
perceived inconsistencies with the Mission, purpose and role set forth in 
ICANN’s Articles of Incorporation and Bylaws, the global public interest, 
the needs of ICANN’s stakeholders, financial stability, or other matter of 
concern to the community;

Annex D, Section 2.2(c)(i)(A) as included in the April 20 draft of the 
Bylaws is consistent with the CCWG Proposal.

Best regards,

Holly



HOLLY J. GREGORY
Partner and Co-Chair
Corporate Governance & Executive Compensation Practice Group

Sidley Austin LLP
787 Seventh Avenue
New York, NY 10019
+1 212 839 5853
holly.gregory at sidley.com
 <http://www.sidley.com/> www.sidley.com





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