[bylaws-coord] Article 6/Section 21.5

Fri Apr 15 21:14:59 UTC 2016

Dear teams:

As we review the ICANN comments, a few of them relate to the notice provisions and our efforts to make EC and the EC Chairs Council totally transparent.  So I wanted to close the loop on the thread below.  I have not coordinated on this with Holly, so she may have different views, but we at Adler need some clarification to complete our comments.

Sam and ICANN Legal, I think one thing you are saying might be that where the Bylaws permit the EC Chairs Council to make a communication that's not a notice (and we're pulling together some examples from the Bylaws of these), we should leave transparency methods to implementation?  I don't know if the CCWG feels the same way, so if that's your concern, we can either make communications transparent now, or ask the CCWG if it's OK to leave to implementation.  And if we leave it to implementation, I don't see how the EC makes a decision like that - we've made it clear that the EC can only do what's listed in the Bylaws, and making such decisions isn't there that I can recall.  I don't really want to add a process at this late date for the EC to make other decisions, and I thought ICANN was happy not to have one anyway.  So we're leaning toward expressly providing in the Bylaws now for full transparency of all EC/EC Chairs Council communications, to or from.  Setting aside the exact method (next question) does that work for you?

I think you are also saying it's not appropriate to have the ICANN Secretary (or his/her staff) posting EC stuff, except for notices.  We were thinking the CCWG wanted everything transparent, with the only exception being where transparency would disadvantage the EC in a dispute, such as a waiver of attorney-client privilege.  As the EC has no staff and only the Chairs of the DP SO/ACs acting as the EC Admin as its volunteers, it seemed appropriate to have ICANN taking care of it, as part of the totality of EC admin that ICANN does.  Is there a better option than the ICANN Secretary?  Is there a staff position within ICANN, or an internal ICANN department/group that would be appropriate for this task?  I don't care if it's the Secretary versus some other position; I just would like to assign the ministerial duty to someone.  Other thoughts?  You mentioned an EC website, but again, I'm hesitant to introduce a new concept at this late date.

I will write in a few hours about the Articles of Association question.

Rosemary

From: Holly Gregory
Sent: Thursday, April 14, 2016 12:12 PM
To: Samantha Eisner; John Jeffrey; Amy Stathos; Daniel Halloran
Cc: ICANN-Adler; Sidley ICANN CCWG; bylaws-coord at icann.org
Subject: RE: Reminder re 21.5 Notices

We were trying to come with one easy method for everything.  And the Secretary can of course have staff post.

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________________________________
From: Samantha Eisner
Sent: Thursday, April 14, 2016 01:48:13 PM
To: Gregory, Holly; John Jeffrey; Amy Stathos; Daniel Halloran
Cc: 'ICANN at adlercolvin.com'; Sidley ICANN CCWG; bylaws-coord at icann.org<mailto:bylaws-coord at icann.org>
Subject: Re: Reminder re 21.5 Notices
Most postings to the website do not go through the Secretary.

We were OK with a posting requirement for the Notices and EC-related communications as required under the Bylaws, but for general communications that might happen to go to/from the EC or EC Chairs Council, it would seem preferable to have the EC determine how those should be made public, which could be done (for example) through having an EC page on the ICANN website, or something like that.

From: "Gregory, Holly" <holly.gregory at sidley.com<mailto:holly.gregory at sidley.com>>
Date: Thursday, April 14, 2016 at 11:05 AM
To: Samantha Eisner <samantha.eisner at icann.org<mailto:samantha.eisner at icann.org>>, John Jeffrey <john.jeffrey at icann.org<mailto:john.jeffrey at icann.org>>, Amy Stathos <amy.stathos at icann.org<mailto:amy.stathos at icann.org>>, Daniel Halloran <daniel.halloran at icann.org<mailto:daniel.halloran at icann.org>>
Cc: "'ICANN at adlercolvin.com<mailto:'ICANN at adlercolvin.com>'" <ICANN at adlercolvin.com<mailto:ICANN at adlercolvin.com>>, Sidley ICANN CCWG <sidleyicannccwg at sidley.com<mailto:sidleyicannccwg at sidley.com>>, "bylaws-coord at icann.org<mailto:bylaws-coord at icann.org>" <bylaws-coord at icann.org<mailto:bylaws-coord at icann.org>>
Subject: RE: Reminder re 21.5 Notices

Who else can post to the website? Other than Secretary?

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________________________________
From: Samantha Eisner
Sent: Thursday, April 14, 2016 01:04:13 PM
To: Gregory, Holly; John Jeffrey; Amy Stathos; Daniel Halloran
Cc: 'ICANN at adlercolvin.com<mailto:'ICANN at adlercolvin.com>'; Sidley ICANN CCWG; bylaws-coord at icann.org<mailto:bylaws-coord at icann.org>
Subject: Re: Reminder re 21.5 Notices
My concern is with the language:

"copies of communications . . .  to or from the EC or the EC Chairs Council shall be provided to the Secretary and the Decisional Participants, and the Secretary shall post them on the Website."

This says that all communications to or from the EC or the EC Chairs Council are provided to the Secretary for posting to the website.  That doesn't have anything to do with Notice, and could be any type of communication.  This reads as if the Secretary is responsible for the transparency of the EC and for posting all communications.  That in and of itself is problematic.  Further, this is a Notice section and the discussion of posting of communications doesn't seem to fit.

Thanks,

Sam

From: "Gregory, Holly" <holly.gregory at sidley.com<mailto:holly.gregory at sidley.com>>
Date: Thursday, April 14, 2016 at 10:53 AM
To: Samantha Eisner <samantha.eisner at icann.org<mailto:samantha.eisner at icann.org>>, John Jeffrey <john.jeffrey at icann.org<mailto:john.jeffrey at icann.org>>, Amy Stathos <amy.stathos at icann.org<mailto:amy.stathos at icann.org>>, Daniel Halloran <daniel.halloran at icann.org<mailto:daniel.halloran at icann.org>>
Cc: "'bylaws-coord at icann.org<mailto:'bylaws-coord at icann.org>'" <bylaws-coord at icann.org<mailto:bylaws-coord at icann.org>>, "'ICANN at adlercolvin.com<mailto:'ICANN at adlercolvin.com>'" <ICANN at adlercolvin.com<mailto:ICANN at adlercolvin.com>>, Sidley ICANN CCWG <sidleyicannccwg at sidley.com<mailto:sidleyicannccwg at sidley.com>>
Subject: RE: Reminder re 21.5 Notices

I have taken a closer look at this and believe that the language at 21.5(b) is good. I don't follow your concern.

Sent with Good (www.good.com<http://www.good.com>)

________________________________
From: Gregory, Holly
Sent: Thursday, April 14, 2016 12:03:53 PM
To: Samantha Eisner; John Jeffrey; Amy Stathos; Daniel Halloran
Cc: 'bylaws-coord at icann.org<mailto:'bylaws-coord at icann.org>'; 'ICANN at adlercolvin.com<mailto:'ICANN at adlercolvin.com>'; Sidley ICANN CCWG
Subject: RE: Reminder re 21.5 Notices
Please provide your suggested revision.  I'm not fully following your concerns.

Sent with Good (www.good.com<http://www.good.com>)

________________________________
From: Samantha Eisner
Sent: Thursday, April 14, 2016 12:01:58 PM
To: Gregory, Holly; John Jeffrey; Amy Stathos; Daniel Halloran
Cc: 'bylaws-coord at icann.org<mailto:'bylaws-coord at icann.org>'; 'ICANN at adlercolvin.com<mailto:'ICANN at adlercolvin.com>'; Sidley ICANN CCWG
Subject: Re: Reminder re 21.5 Notices
Hi -

We have a concern with the language as provided at 21.5(b), and with the note accompanying that language.

This seems to confuse the issue of communications among the EC and its decisional participants with notices, and I think we'd benefit from keeping 21.5 just about notices.  To that end, I'd remove the inclusion of communications, as well as the specific reference to the EC Chairs Council in the new (b).  There shouldn't be any notices that the Secretary receives from the EC, Chairs Council, or Decisional Participants that there would be any concern in posting.  Further, the communications reference, as previously seen at 6.3, was easily understood as communications called for within the Bylaws, and not just a general "communications" reference as it now reads.

I think that the communications reference remains is better housed in Article 6 - there needs to be some assurance of transparency of those processes and discussions of how they interact with each other within their governing document.

As we've discussed previously, there still is nothing in the Bylaws that gives assurance of transparency of the EC processes, as there have been statements that their processes will be so transparent anyway that we don't need to address it.  The more I look at the recent edits, the more I'm concerned that we're trying to house the EC's transparency requirements with ICANN's Secretary, which seems quite awkward.

The EC will have to develop clear rules on how it will communicate to maintain privilege (if appropriate) , for example, in the maintenance of an IRP or a legal action, but I don't think that's something we address by reference in the notice section.

Given that we're not clear on what the drive was for this change, is it possible for you to try to revise this again to meet the objectives?  We can also try if you'd like.

Thanks,

Sam

From: "Gregory, Holly" <holly.gregory at sidley.com<mailto:holly.gregory at sidley.com>>
Date: Tuesday, April 12, 2016 at 7:38 AM
To: Samantha Eisner <samantha.eisner at icann.org<mailto:samantha.eisner at icann.org>>, John Jeffrey <john.jeffrey at icann.org<mailto:john.jeffrey at icann.org>>, Amy Stathos <amy.stathos at icann.org<mailto:amy.stathos at icann.org>>, Daniel Halloran <daniel.halloran at icann.org<mailto:daniel.halloran at icann.org>>, "turcotte.bernard at gmail.com<mailto:turcotte.bernard at gmail.com>" <turcotte.bernard at gmail.com<mailto:turcotte.bernard at gmail.com>>
Cc: "'bylaws-coord at icann.org<mailto:'bylaws-coord at icann.org>'" <bylaws-coord at icann.org<mailto:bylaws-coord at icann.org>>, "'ICANN at adlercolvin.com<mailto:'ICANN at adlercolvin.com>'" <ICANN at adlercolvin.com<mailto:ICANN at adlercolvin.com>>, Sidley ICANN CCWG <sidleyicannccwg at sidley.com<mailto:sidleyicannccwg at sidley.com>>
Subject: Reminder re 21.5 Notices

Just a reminder that the language we sent yesterday for 21.5 (copied below) with changes that we have since incorporated into the revised Article 6 just sent remains relevant and needs to be incorporated into the next draft:

[21.5]  NOTICES

(a)  All notices to be given to the EC Chairs Council, the Decisional Participants, or the Secretary pursuant to any provision of these Bylaws shall be given either (a) in writing at the address of the appropriate party as set forth below or (b) via electronic mail as provided below, unless that party has given a notice of change of postal or email address, as provided in this Section 21.5.  Any change in the contact information for notice below will be given by the party within 30 days of such change.  Any notice required by these Bylaws will be deemed to have been properly given (i) if in paper form, when delivered in person or via courier service with confirmation of receipt or (ii) if via electronic mail, upon confirmation of receipt by the recipient's email server, provided that such notice via electronic mail shall be followed by a copy sent by regular postal mail service within three days.  In the event other means of notice become practically achievable, such as notice via a secure website, the EC Chairs Council, the Decisional Participants, and ICANN will work together to implement such notice means.

If to ICANN, addressed to:

Internet Corporation for Assigned Names and Numbers

12025 Waterfront Drive, Suite 300

Los Angeles, CA 90094-2536

USA

Email: [___]

Attention:  Secretary

If to the EC Chairs Council, addressed to:

[________________]

[________________]

[________________]

If to a Decisional Participant, addressed to the contact information available at [insert Website reference].

(b)  Unless otherwise required by a particular Bylaws provision, in addition to notices required by these Bylaws to specified recipients, copies of communications or notices to or from the EC or the EC Chairs Council shall be provided to the Secretary and the Decisional Participants, and the Secretary shall post them on the Website.

HOLLY J. GREGORY
Partner and Co-Chair
Corporate Governance & Executive Compensation Practice Group
Sidley Austin LLP
787 Seventh Avenue
New York, NY 10019
+1 212 839 5853
holly.gregory at sidley.com<mailto:holly.gregory at sidley.com>
www.sidley.com<http://www.sidley.com/>
[http://www.sidley.com/files/upload/signatures/SA-autosig.png]<http://www.sidley.com/> SIDLEY AUSTIN LLP

From: Gregory, Holly
Sent: Tuesday, April 12, 2016 10:20 AM
To: Samantha.Eisner at icann.org<mailto:Samantha.Eisner at icann.org>; (john.jeffrey at icann.org<mailto:john.jeffrey at icann.org>); amy.stathos at icann.org<mailto:amy.stathos at icann.org>; daniel.halloran at icann.org<mailto:daniel.halloran at icann.org>
Cc: bylaws-coord at icann.org<mailto:bylaws-coord at icann.org>; ICANN at adlercolvin.com<mailto:ICANN at adlercolvin.com>; Sidley ICANN CCWG
Subject: Revised Article 6

Dear John, Sam and team,  Attached please find a revised Article 6, that has been edited to more fully describe in one place the powers of the EC and address other related issues.  This Article 6 should replace and supersede all prior drafts.  Please confirm your receipt. For inclusion in the next draft of the ICANN Bylaws.  Please let us know if you have any questions or concerns.  Holly and Rosemary
HOLLY GREGORY
Partner

Sidley Austin LLP
+1 212 839 5853
holly.gregory at sidley.com<mailto:holly.gregory at sidley.com>

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