[bylaws-coord] FW: Rationale Requirement in Annex D, Section 2.2(c)(i)(A)

[Gregory, Holly]

Again apologies for not writing directly but see below from Rebecca drafted on my behalf. I am in an airport with limited computer capacity.  Please share the note below with the CCWG.  Kind regards, Holly



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________________________________
From: Grapsas, Rebecca
Sent: Tuesday, May 03, 2016 05:24:00 PM
To: Gregory, Holly
Subject: Rationale Requirement in Annex D, Section 2.2(c)(i)(A)

Dear Co-Chairs,
On today’s CCWG call, a concern was raised regarding the requirement to provide “specific rationales” in Annex D, Section 2.2(c)(i)(A) (pasted below).   As discussed below, this provision is consistent with the CCWG Proposal.
As I noted in the chat during today’s call, the general requirement for the Petitioning Decisional Participant to provide a rationale for the rejection petition (i.e., the first part of (A), highlighted in yellow) was included to reflect Annex 2, Paragraph 32 (first bullet, first sub-bullet)), which provides that “Within 24 hours of a petition being approved, the petitioning Decisional Participant will: Circulate a detailed rationale for proposing to use the Community Power to all Decisional Participants. Any SO or AC may contribute preliminary thoughts or questions in writing via a specific publicly archived email list set up for this specific issue….”

The language in (A) highlighted in green was included to reflect Annex 4, Paragraphs 12 and 14:

·        Paragraph 12: “The CCWG-Accountability has determined that a separate petition would be required for each budget or strategic/operating plan being challenged. A budget or strategic/operating plan could only be challenged if there are significant issue(s) brought up in the engagement process that were not addressed prior to approval.”

·        Paragraph 14: “A community decision to reject a budget or a plan after it has been approved by the ICANN Board will be based on perceived inconsistency with the purpose, Mission and role set out in ICANN’s Articles and Bylaws; the global public interest; the needs of ICANN stakeholders; financial stability, or other matters of concern to the community. The veto could only concern issues that had been raised in the public consultations conducted before the Board approved the budget or plan.”
Given that a budget or plan can only be rejected based on “perceived inconsistency with the purpose, Mission and role set out in ICANN’s Articles and Bylaws; the global public interest; the needs of ICANN stakeholders; financial stability, or other matters of concern to the community”, the Bylaw was drafted to limit the ability to escalate rejection of a budget or plan to situations where the rationale includes one or more of those specified items.

Annex D, Section 2.2(c)(i)(A):

(c) A Decisional Participant that has received a Rejection Action Petition shall either accept or reject such Rejection Action Petition; provided that a Decisional Participant may only accept such Rejection Action Petition if it was received by such Decisional Participant during the Rejection Action Petition Period.
(i) If, in accordance with the requirements of Section 2.2(c) of this Annex D, a Decisional Participant accepts a Rejection Action Petition during the Rejection Action Petition Period, the Decisional Participant shall promptly provide to the EC Administration, the other Decisional Participants and the Secretary written notice (“Rejection Action Petition Notice”) of such acceptance (such Decisional Participant, the “Rejection Action Petitioning Decisional Participant”), and ICANN shall promptly post such Rejection Action Petition Notice on the Website. The Rejection Action Petition Notice shall also include:
(A) the rationale upon which rejection of the Rejection Action is sought. Where the Rejection Action Petition Notice relates to an ICANN Budget, an IANA Budget, an Operating Plan or a Strategic Plan, the Rejection Action Petition Notice shall not be valid and shall not be accepted by the EC Administration unless the rationale set forth in the Rejection Action Petition Notice is based on one or more significant issues that were specifically raised in the applicable public comment period(s) relating to perceived inconsistencies with the Mission, purpose and role set forth in ICANN’s Articles of Incorporation and Bylaws, the global public interest, the needs of ICANN’s stakeholders, financial stability, or other matter of concern to the community;
Annex D, Section 2.2(c)(i)(A) as included in the April 20 draft of the Bylaws is consistent with the CCWG Proposal.
Best regards,
Holly

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/>




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