[bylaws-coord] Regarding dependencies in the new bylaws

Fri Apr 15 07:51:26 UTC 2016

Thanks Mathieu.

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

Don’t know. Perhaps the legal could respond? JJ/Sam?

Cheers,

Chris

> On 15 Apr 2016, at 17:46 , Mathieu Weill via bylaws-coord <bylaws-coord at icann.org> wrote:
> 
> 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> [mailto: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 <mailto: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 <mailto: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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>  
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