[bylaws-coord] Regarding dependencies in the new bylaws

Fri Apr 15 07:46:39 UTC 2016

Thanks Chris,

I have no doubt whatsoever about the Board’s commitment, and appreciate your 
clarification.

I assume your email implies that we should not expect any follow up to Bruce’s 
previous request for lawyers consideration of the issue ?

Best

Mathieu

De : bylaws-coord-bounces at icann.org [mailto:bylaws-coord-bounces at icann.org] 
De la part de Chris Disspain via bylaws-coord
Envoyé : vendredi 15 avril 2016 01:30
À : bylaws-coord at icann.org
Objet : Re: [bylaws-coord] Regarding dependencies in the new bylaws

Bruce, Mathieu, All,

The Bylaws to implement the ICG and the CCWG proposal are being drafted and 
considered together.  The commitment from ICANN has been that the Bylaws 
will be adopted to allow for NTIA’s consideration, but the Bylaws will not 
become EFFECTIVE until the IANA Functions Contract lapses and the 
stewardship transition occurs.  Given that ICANN cannot require the 
transition to occur, the Board, in Marrakech, made clear its commitment that 
ICANN would still move forward with the appropriate accountability 
improvements if, for some reason, the transition does not occur.

It might be helpful to refer to the Board’s resolution and rationale from 
Marrakech. In its 10 March 2016 resolution, the Board said:

"Resolved (2016.03.10.18), the President and CEO, or his designee, is 
directed to plan for the implementation of the Report so that ICANN is 
operationally ready to implement in the event NTIA approves of the IANA 
Stewardship Transition Proposal and the IANA Functions Contract expires. The 
Board is committed to working with the community to identify the portions of 
the CCWG-Accountability recommendations that can be implemented in the event 
that it is determined that ICANN¹s obligations to perform the IANA Functions 
will remain under contract with NTIA."

In its rationale, the Board said:

"Accepting the Report and transmitting it to NTIA does not specifically 
impose any resource requirements on ICANN. However, the planning for 
implementation that is necessary to be in place for ICANN to be ready to 
implement these changes when appropriate requires significant resources, 
including amending ICANN’s Bylaws, supporting the revisions to the 
Independent Review Process, confirming that processes are in place for the 
community escalation processes, and other planning as required. The 
implementation planning for the entirety of the IANA Stewardship Transition 
Process is a coordinated effort, with the interrelated operational and 
accountability requirements within the ICG¹s Proposal and the 
CCWG-Accountability¹s Report considered together.  Given that there is the 
possibility that NTIA may not be able to approve ICG’s Proposal, if that 
determination is made, the Board is committed to work with the community to 
implement those parts of the CCWG-Accountability Report that do not 
interfere with the obligations ICANN would maintain under an IANA Functions 
Contract with NTIA."

The CCWG report, while separate, has dependencies on the ICG proposal. The 
bylaws terms are linked - and ICANN has committed to work with the community 
to unlink those terms if it is ever needed.

On a practical matter, there is a need to do implementation work to allow 
for the mechanisms in the new Bylaws to work, so the anticipation that the 
Bylaws will not be in effect until 1 October puts a far more realistic 
deadline into place to allow for those implementation efforts to conclude. 
For example, the procedural rules around the IRP and the identification of a 
provider (which is needed before a standing panel is in place) cannot be 
completed by a May 27 Bylaws approval date.

Hope this helps.

Cheers,

Chris

On 14 Apr 2016, at 19:56 , Bruce Tonkin via bylaws-coord 
<bylaws-coord at icann.org> wrote:

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

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