[bylaws-coord] Following up on Lawyers Comments on Draft ICANN Bylaws

Tue May 24 10:57:22 UTC 2016

This change was in our final report and is essential for the transition.

Articles of Incorporation section 3 is where we establish ICANN’s form and place of incorporation, as "organized under California Nonprofit Public Benefit Corporation Law”.    That law is critical to give legally enforceable powers to the empowered community as sole designator.

We need the 75% approval threshold in the articles before transition.

From: "Rosemary E. Fei" <rfei at adlercolvin.com<mailto:rfei at adlercolvin.com>>
Date: Tuesday, May 24, 2016 at 6:46 AM
To: Steve DelBianco <sdelbianco at netchoice.org<mailto:sdelbianco at netchoice.org>>
Cc: "Samantha.Eisner at icann.org<mailto:Samantha.Eisner at icann.org>" <Samantha.Eisner at icann.org<mailto:Samantha.Eisner at icann.org>>, "bylaws-coord at icann.org<mailto:bylaws-coord at icann.org>" <bylaws-coord at icann.org<mailto:bylaws-coord at icann.org>>, ICANN-Adler <ICANN at adlercolvin.com<mailto:ICANN at adlercolvin.com>>, Sidley ICANN CCWG <sidleyicannccwg at sidley.com<mailto:sidleyicannccwg at sidley.com>>
Subject: Re: [bylaws-coord] Following up on Lawyers Comments on Draft ICANN Bylaws

That's in the draft we gave ICANN Legal to review a while back. Our understanding from ICANN Legal is that the Articles are on a more relaxed time line than the Bylaws. I think that's why we haven't received comments back from them yet.

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><mailto:rfei at adlercolvin.com>
www.adlercolvin.com<http://www.adlercolvin.com/>
_____________________________
The information in this e-mail message and any attachments may be privileged, confidential, and protected from disclosure.  If you are not the intended recipient, any use, dissemination, distribution, or copying of this transmission is strictly prohibited.  If you think that you have received this e-mail message in error, please e-mail the sender at rfei at adlercolvin.com<mailto:rfei at adlercolvin.com><mailto:rfei at adlercolvin.com>, and delete all copies of this message and its attachments, if any.  Thank you.

On May 24, 2016, at 3:27 AM, Steve DelBianco <sdelbianco at netchoice.org<mailto:sdelbianco at netchoice.org><mailto:sdelbianco at netchoice.org>> wrote:

Please don’t forget to amend the Articles of Incorporation, such that changes require 75% approval of the Designators.

From: <bylaws-coord-bounces at icann.org<mailto:bylaws-coord-bounces at icann.org><mailto:bylaws-coord-bounces at icann.org>> on behalf of "Rosemary E. Fei" <rfei at adlercolvin.com<mailto:rfei at adlercolvin.com><mailto:rfei at adlercolvin.com>>
Date: Tuesday, May 24, 2016 at 5:58 AM
To: "Samantha.Eisner at icann.org<mailto:Samantha.Eisner at icann.org><mailto:Samantha.Eisner at icann.org>" <Samantha.Eisner at icann.org<mailto:Samantha.Eisner at icann.org><mailto:Samantha.Eisner at icann.org>>, "bylaws-coord at icann.org<mailto:bylaws-coord at icann.org><mailto:bylaws-coord at icann.org>" <bylaws-coord at icann.org<mailto:bylaws-coord at icann.org><mailto:bylaws-coord at icann.org>>, "ccwg-accountability5 at icann.org<mailto:ccwg-accountability5 at icann.org><mailto:ccwg-accountability5 at icann.org>" <ccwg-accountability5 at icann.org<mailto:ccwg-accountability5 at icann.org><mailto:ccwg-accountability5 at icann.org>>
Cc: ICANN-Adler <ICANN at adlercolvin.com<mailto:ICANN at adlercolvin.com><mailto:ICANN at adlercolvin.com>>, Sidley ICANN CCWG <sidleyicannccwg at sidley.com<mailto:sidleyicannccwg at sidley.com><mailto:sidleyicannccwg at sidley.com>>, "'bylaws-coord at icann.org<mailto:'bylaws-coord at icann.org><mailto:'bylaws-coord at icann.org>'" <bylaws-coord at icann.org<mailto:bylaws-coord at icann.org><mailto:bylaws-coord at icann.org>>
Subject: [bylaws-coord] Following up on Lawyers Comments on Draft ICANN Bylaws

Dear All:

Following up on the four items listed in Holly’s email from Friday (forwarded below), we proposed the following language to address each of them:

o   Recommendation #3 -- Section 1.1(d)(ii)(A): “Review the language to ensure it is consistent with the CCWG Proposal and captures the scope of the grandfathering contemplated in the CCWG Proposal as further developed in CCWG discussions after the CCWG Proposal was issued.”

We propose to edit the referenced section to read as follows:

(A) (1) all registry agreements and registrar accreditation agreements between ICANN and registry operators or registrars in force on [1 October 2016], including, in each case, any terms or conditions therein that are not contained in the underlying form of registry agreement and registrar accreditation agreement; (2) any registry agreement or registrar accreditation agreement not encompassed by (1) above to the extent its terms do not vary materially from the form of registry agreement or registrar accreditation agreement that existed on [1 October 2016]; and

o   Recommendation #5 – Section 4.3(s): “The CCWG Proposal was silent as to the means for ensuring that an independent IRP Panel would complete the IRP within six months and this should be addressed in the Rules of Procedure. Consideration should also be given to whether the sentence that begins “For the avoidance of doubt” is necessary to assure that an IRP Panel failure to meet the six-month deadline is not grounds for a new IRP against ICANN.”

To reduce the likelihood of unsuccessful IRP claims being brought based on delayed IRP decisions, we propose to edit the referenced section to read as follows:

An IRP Panel should complete an IRP proceeding expeditiously, issuing an early scheduling order and its written decision no later than six months after the filing of the Claim, except as otherwise permitted under the Rules of Procedure.  The preceding sentence does not provide the basis for a Covered Action.

o   Recommendation #7 – Section 4.6(c)(v): “The [SSR] review is already late per the Affirmation of Commitments, and would also be late according to the new Bylaws. However, an appropriate correction to avoid this default situation could be implemented.”

To avoid the default situation, we propose to edit the referenced section to read as follows:

(v)  The SSR Review shall be conducted no less frequently than every five years, measured from the date the previous SSR Review Team was convened, except that the first SSR Review to be conducted after [1 October 2016] shall be deemed be timely if its SSR Review Team is convened on or before [date].

o   Recommendation #8 – Section 4.6(e)(v): “[T]he [Directory Service] review is already late per the Affirmation of Commitments, and would also be late according to the new Bylaws. However, an appropriate correction to avoid this default situation could be implemented.”

To avoid the default situation, we propose to edit the referenced section to read as follows:

(v)  The Directory Service Review shall be conducted no less frequently than every five years, measured from the date the previous Directory Service Review Team was convened, except that the first Directory Service Review to be conducted after [1 October 2016] shall be deemed be timely if its Directory Service Review Team is convened on or before [date].

Finally, with respect to the inconsistency in the CCWG Proposal regarding the effective date of Standard Bylaw amendments:  we recommend using 30 days, rather than 28, in Section 25.1(e)(i)(A).

Rosemary and Holly

From: Holly Gregory
Sent: Friday, May 20, 2016 12:56 PM
To: Samantha.Eisner at icann.org<mailto:Samantha.Eisner at icann.org><mailto:Samantha.Eisner at icann.org>
Cc: mathieu.weill at afnic.fr<mailto:mathieu.weill at afnic.fr><mailto:mathieu.weill at afnic.fr>; thomas at rickert.net<mailto:thomas at rickert.net><mailto:thomas at rickert.net>; León Felipe Sánchez Ambía; 'bylaws-coord at icann.org<mailto:'bylaws-coord at icann.org><mailto:'bylaws-coord at icann.org>'; turcotte.bernard at gmail.com<mailto:turcotte.bernard at gmail.com><mailto:turcotte.bernard at gmail.com>; Rosemary E. Fei; ICANN-Adler; Sidley ICANN CCWG
Subject: Status: Lawyers Comments on Draft ICANN Bylaws

Dear Sam,

Attached please find a chart with proposed revisions to the ICANN Bylaws addressing certain of the CCWG comments provided on May 13, as well as corrections of typographical errors and conforming changes from our proofreading.  After the comment period closes we will propose language to address the following additional items from the CCWG comment:

o   Recommendation #3 -- Section 1.1(d)(ii)(A): “Review the language to ensure it is consistent with the CCWG Proposal and captures the scope of the grandfathering contemplated in the CCWG Proposal as further developed in CCWG discussions after the CCWG Proposal was issued.”

o   Recommendation #5 – Section 4.3(s): “The CCWG Proposal was silent as to the means for ensuring that an independent IRP Panel would complete the IRP within six months and this should be addressed in the Rules of Procedure. Consideration should also be given to whether the sentence that begins “For the avoidance of doubt” is necessary to assure that an IRP Panel failure to meet the six-month deadline is not grounds for a new IRP against ICANN.”

o   Recommendation #7 – Section 4.6(c)(v): “The [SSR] review is already late per the Affirmation of Commitments, and would also be late according to the new Bylaws. However, an appropriate correction to avoid this default situation could be implemented.”

o   Recommendation #8 – Section 4.6(e)(v): “[T]he [Directory Service] review is already late per the Affirmation of Commitments, and would also be late according to the new Bylaws. However, an appropriate correction to avoid this default situation could be implemented.”

In addition, there is one item on which we need guidance from the Bylaws Coordinating Group or the CCWG relating to Section 25.1(e):  The CCWG Proposal is internally inconsistent on when Standard Bylaw Amendments take effect.  Annex 2, Paragraph 30 provides for a 28 day period, and Annex 4, Paragraph 32 provides for a 30 day period in both instances following the Rejection Action Board Notification Date.  We need direction on which time period should be used – 28 days or 30 days.

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
holly.gregory at sidley.com<mailto: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

****************************************************************************************************
This e-mail is sent by a law firm and may contain information that is privileged or confidential.
If you are not the intended recipient, please delete the e-mail and any attachments and notify us
immediately.

****************************************************************************************************

<image001.jpg>

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/bylaws-coord/attachments/20160524/c5dcdcbf/attachment-0001.html>