[bylaws-coord] Bylaws comments

Thu Apr 7 21:42:16 UTC 2016

Agree, Ed, I think that’s what we’ve been saying all along.

Rosemary

From: Edward McNicholas
Sent: Thursday, April 07, 2016 2:41 PM
To: Holly Gregory; bylaws-coord at icann.org; ICANN-Adler; Sidley ICANN CCWG
Subject: RE: Bylaws comments

This comment strikes me as expressing an incorrect view of the potential for a court challenge:

•         Article 4.3(x)(ii)(B) says “If the Board rejects an IRP decision, the EC Chairs Council may convene as soon as possible following such rejection and consider whether to authorize commencement of action in a court with jurisdiction over ICANN to enforce the IRP decision.” I had thought that anyone could commence a court action to enforce an IRP decision if the Board rejects it. However, I did not see this stated explicitly elsewhere. I believe this should be made clear in the appropriate place.

Only parties to an IRP would have standing to enforce that IRP.
Ed
EDWARD R. MCNICHOLAS
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From: Gregory, Holly
Sent: Thursday, April 07, 2016 4:15 PM
To: bylaws-coord at icann.org<mailto:bylaws-coord at icann.org>; ICANN-Adler ; Sidley ICANN CCWG
Subject: FW: Bylaws comments

Please see comments from Brett Schaefer below.

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________________________________
From: Schaefer, Brett
Sent: Thursday, April 07, 2016 11:01:02 AM
To: Gregory, Holly
Subject: Bylaws comments
Hey Holly,

Great job overall, but a few things caught my attention. Below are 11 clarifications/corrections/comments/questions I had on the bylaws draft:

•         Article 3.6 (d) relates to question 25 in the CCWG chat. The Board should not have the sole discretion to determine if GAC Consensus Advice was a material factor in the Board’s decision. In this morning’s chat, I suggested adding text based on Article 25.3 to clarify: “The Board shall not combine a decision based on or consistent with consensus GAC advice with any other decision.  The Board shall indicate in the applicable Board Notice whether such a decision is based on or is consistent with consensus GAC advice.”

•         Article 4 and Appendix D Article 4 do not specify if, after a Requestor or the EC requests review or reconsideration, the decision is suspended pending resolution. This would seem to be necessary to prevent irreversible harm.

•         Article 4.3(x)(ii)(B) says “If the Board rejects an IRP decision, the EC Chairs Council may convene as soon as possible following such rejection and consider whether to authorize commencement of action in a court with jurisdiction over ICANN to enforce the IRP decision.” I had thought that anyone could commence a court action to enforce an IRP decision if the Board rejects it. However, I did not see this stated explicitly elsewhere. I believe this should be made clear in the appropriate place.

•         Article 8, as discussed in the chat, I do not believe that the GAC should have an EC vote on the decision to recall a NOMCOM Director because they do not vote for them in the first place. This would mirror the authority of the appointing SO/ACs to dismiss their appointed Directors.

•         Section 25.2, it seems odd that the existence and composition of the ASO, ccNSO, gNSO, and ACs (Articles 9-12) should not be fundamental bylaws. I don’t recall this being specifically discussed, but should the dissolution or rearrangement of the SO/ACs be a regular bylaw change?

•         Section 25.2(e) and (f) on page 126 of the tracked document appears to be an inadvertent paste and in need of editing. The section deals with fundamental bylaws, but the text refers to standard bylaws.

•         Annex D, Section 1.1 (b) refers to Section [ ] and Section 25.3(b). There are no such sections.

•         Annex D, Section 1.4(b)(ii) refers to the incorrect interpretation of the GAC carve-out that I sent to you on Tuesday. The threshold should not be lowered from 3 to 2 on an approval action for a Board decision based on consensus GAC advice because this would merely institutionalize the GAC’s presumed supporting vote. The threshold should remain at 3 in these cases. I appreciate that this has been corrected.

•         Annex D also relates to question 25 in the CCWG chat discussed in the first bullet above.

•         Annex D, Article 3, Section 3.1(g) the GAC should not have an EC vote in removing NOMCOM directors as discussed in the chat and above in bullet 4.

•         Annex D, Article 4, the GAC-carve out should apply throughout the IRP and reconsideration request process if it involves a Board decision based on consensus GAC advice.

Thanks, hope this helps.

Best,

Brett
________________________________
Brett Schaefer
Jay Kingham Senior Research Fellow in International Regulatory Affairs
Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy
The Heritage Foundation
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Washington, DC 20002
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