<p dir="ltr">On 21 Jan 2016 7:04 p.m., "Greg Shatan" <<a href="mailto:gregshatanipc@gmail.com">gregshatanipc@gmail.com</a>> wrote:<br>
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> Without the date, the document would not be considered adequately identified.<br>
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>> 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.<br>
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> 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).<br>
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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)</p>
<p dir="ltr">Thanks for this important clarification</p>
<p dir="ltr">Regards</p>
<p dir="ltr">>><br>
>> 6. As I have already indicated to Izumi privately, I would have preferred a text reading as follows:<br>
>> "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"<br>
>><br>
>> 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.<br>
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>> Regards<br>
>><br>
>> On 21 Jan 2016 04:05, "Rosemary E. Fei" <<a href="mailto:rfei@adlercolvin.com">rfei@adlercolvin.com</a>> wrote:<br>
>>><br>
>>> Dear CCWG ACCT Co-Chairs, Members, Participants and ICANN Staff:<br>
>>><br>
>>> <br>
>>><br>
>>> 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.<br>
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>>> The ASO has proposed the following alternative language for the description of ICANN’s mission with respect to the numbers function:<br>
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>>> 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.<br>
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>>> We think this approach is helpful, and adequately solves the problem of referring to the MOU to define ICANN’s mission. <br>
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>>> <br>
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>>> 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. <br>
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>>> 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.<br>
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>>> <br>
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>>> We think the reference to the MOU needs to be more specific.<br>
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>>> Reflecting these comments, our high-level concern will be fully addressed if the ASO proposal is modified as follows and adopted by the CCWG:<br>
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>>> <br>
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>>> 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.<br>
>>><br>
>>> <br>
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>>> Rosemary and Holly<br>
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>>> <br>
>>><br>
>>> Rosemary E. Fei<br>
>>> Adler & Colvin<br>
>>> 235 Montgomery Street, Suite 1220<br>
>>> San Francisco, CA 94104<br>
>>> 415/421-7555 (phone)<br>
>>> 415/421-0712 (fax)<br>
>>> <a href="mailto:rfei@adlercolvin.com">rfei@adlercolvin.com</a> <br>
>>> <a href="http://www.adlercolvin.com">www.adlercolvin.com</a><br>
>>><br>
>>> <br>
>>><br>
>>> _____________________________<br>
>>><br>
>>> 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.<br>
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>>> <br>
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>>> <br>
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>>> ________________________________<br>
>>><br>
>>> From: Izumi Okutani<br>
>>> Sent: Tuesday, January 19, 2016 12:59:10 AM<br>
>>> To: Gregory, Holly; 'Mathieu Weill'; <a href="mailto:thomas@rickert.net">thomas@rickert.net</a>; León Felipe Sánchez Ambía; <a href="mailto:accountability-cross-community@icann.org">accountability-cross-community@icann.org</a>; <a href="mailto:acct-staff@icann.org">acct-staff@icann.org</a><br>
>>> Cc: Sidley ICANN CCWG; Greeley, Amy E.; Grapsas, Rebecca; <a href="mailto:ICANN@adlercolvin.com">ICANN@adlercolvin.com</a><br>
>>> Subject: Re: [CCWG-ACCT] Lawyer's High Level Review re Proposal to Refer to 2004 ASO MOU in Mission Statement (Annex 5, Third Proposal)<br>
>>><br>
>>> Dear Holly and all,<br>
>>><br>
>>> Thank you for this analysis. <br>
>>><br>
>>> 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.<br>
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>>> We had further discussions in the ASO and to address this concern, we would like to suggest the alternative text below:<br>
>>><br>
>>> "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."<br>
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>>> - 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*.<br>
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>>> - What it basically says is that ICANN's Mission on the number resources is to ratify global policies according to the ASO MoU. <br>
>>> 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.<br>
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>>> - 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. <br>
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>>> - 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.<br>
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>>> Izumi<br>
>>><br>
>>> On 2016/01/19 5:27, Gregory, Holly wrote:<br>
>>><br>
>>> > Dear CCWG ACCT Co-Chairs, Members, Participants and ICANN Staff,<br>
>>> > <br>
>>> > 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).<br>
>>> > <br>
>>> > 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.”<br>
>>> > <br>
>>> > 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.)<br>
>>> > As a general matter, referencing all or part of an external agreement in bylaws presents a number of problems. For example:<br>
>>> > <br>
>>> > <br>
>>> > · 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</p>