[bylaws-coord] Article 6/Section 21.5

Sat Apr 16 06:52:42 UTC 2016

Dear Rosemary
Please kindly advise of the latest development on the definition or
description of
" Global Multistake Community"
"Global Internet Community"
" ICANN Community"
"Community"
These are the terms referred to many time in the draft and we need to have
a clear idea whether all have the same meaning
Regards
Kavouss

2016-04-16 4:24 GMT+02:00 Rosemary E. Fei <rfei at adlercolvin.com>:

> Thanks, Sam.
>
> We put my comments about the Articles of Association in a footnote in the
> draft of 6.1 you received from Nancy a couple of hours ago, so contrary to
> my email below, I won't send anything more on it.
>
>
>
>
> Sent from mobile
>
> Rosemary E. Fei
> Adler & Colvin
> 415/421-7555<tel:415/421-7555> (phone)
> rfei at adlercolvin.com<mailto:rfei at adlercolvin.com>
> www.adlercolvin.com<http://www.adlercolvin.com/>
> _____________________________
> The information in this e-mail message and any attachments may be
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> rfei at adlercolvin.com<mailto:rfei at adlercolvin.com>, and delete all copies
> of this message and its attachments, if any.  Thank you.
>
> On Apr 15, 2016, at 5:19 PM, Samantha Eisner <Samantha.Eisner at icann.org
> <mailto:Samantha.Eisner at icann.org>> wrote:
>
> To follow up, if it is the easiest to leave the reference to the
> Secretary, we can figure that out.  Let us know.
>
> Sam
>
> From: Samantha Eisner <samantha.eisner at icann.org<mailto:
> samantha.eisner at icann.org>>
> Date: Friday, April 15, 2016 at 4:51 PM
> To: "Rosemary E. Fei" <rfei at adlercolvin.com<mailto:rfei at adlercolvin.com>>,
> Holly Gregory <holly.gregory at sidley.com<mailto:holly.gregory at sidley.com>>,
> 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-Adler <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: Article 6/Section 21.5
>
> Rosemary,
>
> If the only communications that are intended to be covered by this are the
> communications called for in the Bylaws, I do not have an issue.  That was
> in 6.3 before.
>
> For the broader issue of what happens if the EC or the EC Administration
> receives communications, or makes communications outside of what is
> required in the Bylaws, maybe the issue as simple as requiring the EC to
> use a publicly archived mailing list, then no one has to post anything?
>
> In terms of revisions to Article 6 and Section 21.5, are there any
> revisions you can provide back to us?
>
> Sam
>
> From: "Rosemary E. Fei" <rfei at adlercolvin.com<mailto:rfei at adlercolvin.com
> >>
> Date: Friday, April 15, 2016 at 2:14 PM
> To: Holly Gregory <holly.gregory at sidley.com<mailto:
> holly.gregory at sidley.com>>, 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-Adler <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: Article 6/Section 21.5
>
> 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<mailto:
> 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.
>
>
>
> Sent with Good (www.good.com<http://www.good.com>)
>
> ________________________________
> 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<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
> 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?
>
>
>
> Sent with Good (www.good.com<http://www.good.com>)
>
> ________________________________
> 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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