[bylaws-coord] Regarding dependencies in the new bylaws

[Bruce Tonkin]

Hello All,

>>  Finally, a statement in Akram’s blog struck me as a shift from our previous discussions. The blog states “The Bylaws will only become effective upon the successful completion of the transition.” I was under the impression in Marrakech that only the subset of Bylaws that are related to the IANA contract expiring would see its effectiveness delayed until the transition. I would appreciate clarification here whether this intent has changes, and what is the rationale. 


I have discussed this further with Akram Atallah in his role as Acting CEO of ICANN.

As the Board stated in Marrakech - at a principle level the Board intends to proceed with the improvements to the accountability that have been submitted to the NTIA for review.   With respect to the improvements in the management of the IANA function - there is a dependency that some of these changes can’t take effect until the NTIA formally agrees to let the existing NTIA contract with ICANN lapse.

With respect to agreements with external parties - those agreements can have "conditions precedent" clauses that describe the events that must occur before terms in the new agreement take effect.

When ICANN did its last major rewrite of the Bylaws a "Transition Article" (Article XX of the current bylaws) was established to map out the steps to transition to the new bylaws.

In an ideal world we would have a section of bylaws that can take effect immediately after Board approval in June/July, and a section of bylaws that may take effect after the NTIA agreement with ICANN lapses.    

The reality is that we are creating a single draft of the bylaws that combine all the changes resulting from the work in the ICG and CCWG on Accountability, assuming that the NTIA will agree to the transition and let the existing agreement lapse in September 2016.    There is no clean separation of clauses that are directly dependent on the IANA transition.

I request that the combined legal team (John, Holly, Rosemary and their colleagues) provide us with some advice on how the bylaws that the Board is asked to approve in June/July can account for:

- possible different timing when some parts of the new bylaws come into effect

- a scenario where the NTIA chooses not to let the current NTIA agreement lapse, and chooses to either extend the existing agreement or alter the existing agreement in some way.

Regards,
Bruce Tonkin