[bylaws-coord] [CCWG-ACCT] Lawyers' Comments on CCWG Comments on Draft New ICANN Bylaws

Sun May 8 14:17:28 UTC 2016

Holly Gregory asked that I forward the email below.  Please post to the CCWG and BCG lists on her behalf.

Jordan, that is correct.  Except with respect to budgets and plans, the draft Bylaws do not allow the rationale provided to give rise to a restriction or limitation on the use of a community power.

The rationale requirements relating to items other than budgets and plans are in the nature of information-sharing (i.e., letting the other Decisional Participants know why a petition has been accepted).  Specifically, Annex D, Section 2.2(c) requires that a rationale be included in the Rejection Action Petition Notice – this is the notice that a Decisional Participant that has accepted a petition provides to all the Decisional Participants and the Secretary.  The other Decisional Participants then decide whether or not to support the petition, so as to require a Community Forum.  The Decisional Participants decide whether or not to support a petition in accordance with their own procedures; the ICANN Bylaws do not dictate what those procedures must be.  Presumably they would consider the rationale that has been included in the petition notice but that is not a requirement under the ICANN Bylaws.

If a sufficient number of Decisional Participants support the petition, Annex D, Section 2.2(d) requires that the Rejection Action Petitioning Decisional Participant post a Rejection Action Supported Petition that includes, among other things, “a supporting rationale in reasonable detail.”  Again, the ICANN Bylaws do not specify how the “supporting rationale” is to be arrived at or drafted; this would be for the Decisional Participants to figure out.  The Rejection Action Supported Petition would then be discussed during the Community Forum pursuant to Annex D, Section 2.3(a).  This last requirement was included to reflect Annex 2, Paragraph 32, first bullet, which provides that the “purpose of the Community Forum is information-sharing (the rationale for the petition, etc.) and airing views on the petition by the community…”

Kind regards,
Holly and Rosemary

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<tel:%2B1%20212%20839%205853>
holly.gregory at sidley.com<mailto:holly.gregory at sidley.com>
www.sidley.com<http://www.sidley.com/>

From: Jordan Carter [mailto:jordan at internetnz.net.nz]
Sent: Sunday, May 08, 2016 12:04 AM
To: Grapsas, Rebecca
Cc: Accountability Cross Community; Sidley ICANN CCWG; ICANN at adlercolvin.com
Subject: Re: [CCWG-ACCT] Lawyers' Comments on CCWG Comments on Draft New ICANN Bylaws

Thanks Holly, Rosemary, for this.

In respect of your substantive comments I agree with you regarding comment 9 (which I think arose from the complexity of the document, as not all "parts" of the carve out are referenced in all places - rightly from a drafting point of view, but a little hard to follow for us non-lawyers), and comment 10 too.

On comment 10 however, I'd like to be clear that the reason a rationale is presented is as a matter of explanation. The decisional process which follows is not reliant on that explanation or rationale being judged against non-existent objective criteria. The presentation of rationale is simply so that DPs have to go on the record saying why they are acting as they are.

Can you please assure me and us that the draft bylaws do not create a situation where anything published as a rationale can be used to block or interfere with the rights of decisional participants to exercise their powers?  (The exception is where the budget related powers are being used, as it is clearly discernable whether or not an issue was raised in the public engagement process or not.)

Many thanks
Jordan

On 8 May 2016 at 05:27, Grapsas, Rebecca <rebecca.grapsas at sidley.com<mailto:rebecca.grapsas at sidley.com>> wrote:
Holly Gregory asked that I forward the email below.  Please post to the CCWG and BCG lists on her behalf.

Dear CCWG-ACCT Co-Chairs, Members, Participants, and ICANN Staff,

Attached please find comments from Sidley and Adler on the CCWG’s Comments on Draft New ICANN Bylaws (tracked changes in Word and PDF).

Please note that we have serious concerns around comments 9 and 10 and believe that, as currently stated, they are based on misreadings of the draft Bylaws in the relation to the CCWG Proposal.

Kind regards,

Holly and Rosemary

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<tel:%2B1%20212%20839%205853>
holly.gregory at sidley.com<mailto:holly.gregory at sidley.com>
www.sidley.com<http://www.sidley.com/>

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Jordan Carter

Chief Executive
InternetNZ

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