[bylaws-coord] Request for clarification by the CCWG

Thu Apr 14 20:00:19 UTC 2016

Greg:

Thank you for your question; it gives us the opportunity to elaborate.  “Automatic” was short-hand for an extremely abbreviated process without EC Chairs Council discretion.

The question of mediation arises when the Board refuses or fails to comply with a decision by the EC.  We propose that if any one of the DPs that had supported the exercise of the relevant EC right determined, using its internal DP procedures, that the Board had so refused or failed and that DP wanted to proceed to mediation, the EC would do that.

Please take this as a clarification of our request for clarification.

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

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From: Greg Shatan [mailto:gregshatanipc at gmail.com]
Sent: Thursday, April 14, 2016 11:15 AM
To: Rosemary E. Fei
Cc: bylaws-coord at icann.org; ICANN-Adler; Daniel Halloran (daniel.halloran at icann.org); Sidley ICANN CCWG (sidleyicannccwg at sidley.com); Amy Stathos (amy.stathos at icann.org)
Subject: Re: [bylaws-coord] Request for clarification by the CCWG

Holly and Rosemary,

Thank you for your cogent email.  I would support the Streamlined Option.  One thing to clarify is the "automatic" nature of the Streamlined Option.  Will the EC have the discretion to decide not to initiate mediation, or is mediation itself initiated automatically?  It appears to be the former (which I support), but ask for clarification.

Thanks!

Greg

On Thu, Apr 14, 2016 at 1:25 PM, Rosemary E. Fei via bylaws-coord <bylaws-coord at icann.org<mailto:bylaws-coord at icann.org>> wrote:
Dear Bylaws Coordination Group:

On the call this past Tuesday morning (Pacific time), Becky and I were unable to recall the issue for CCWG consideration that was raised on one of the slides.  We have now retrieved a more complete description of the issue, regarding Section 4.1, on the process for initiating mediation as the first step toward a Community IRP, and again request CCWG clarification.

During the LA meeting, counsel identified that the process to initiate mediation, if the Board fails to comply with an EC decision, was not described in the Proposal.  Section 4.1 was introduced during the Bylaw drafting stage at the request of the Bylaws Coordination Group to address this, and describes a new escalation process, following all typical steps (petition, community forum, etc.) in order for the EC to proceed to mediation.  (This is the Current Draft Option.)

An alternative that would be entirely consistent with the Proposal’s silence, would be to mandate the EC Chairs Council to give notice to initiate mediation automatically, in order to streamline the process, eliminating any escalation to commence mediation, and then authorize the EC Chairs Council to participate in the mediation in consultation with the Decisional Participants following their internal processes.  (A full escalation process would still be required after mediation, to initiate an IRP.)  (This is the Streamlined Option.)

CCWG counsel prefer the Streamlined Option, if it is acceptable to the CCWG.  ICANN Legal has also agreed to it.

We note that another issue on which the Proposal is silent and on which counsel would like clarification, concerns the breadth of the special SO/PDP rule (requiring the SO that was the source of a PDP to support escalation to challenge that PDP).  CCWG has already confirmed that the special rule should apply to Fundamental Bylaws changes, in addition to Standard Bylaws changes as provided by the Proposal.  We would also like to know if the special SO/PDP rule should be applied to initiating mediation, or only to initiation of Community IRPs.  However, if the CCWG concludes on the preceding issue that mediation will not require any escalation process at all, this issue would be resolved as well.

With kind regards,

Holly and Rosemary

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