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

Tue May 24 19:35:48 UTC 2016

It would also bolster certain of Steve DelBianco's statements before the
Senate today.

Greg

On Tue, May 24, 2016 at 1:37 PM, Thomas Rickert <thomas at rickert.net> wrote:

> Agree. It would invalidate Phil Corwin’s argument in his recent circleid
> blog post.
>
> Thomas
>
>
> Thomas Rickert
> Rechtsanwalt
> tel: +49.228.74 898.0
> fax: +49.228.74 898.66
> email: thomas at rickert.net
> web: rickert.net
>
> [image: image]
> RICKERT Rechtsanwaltsgesellschaft m.b.H. (i.e. law firm)
> Kaiserplatz 7 - 9, 53113 Bonn, Germany
> HRB 9262, AG Bonn - GF/CEO: Thomas Rickert
>
> Am 24.05.2016 um 17:51 schrieb Greg Shatan <gregshatanipc at gmail.com>:
>
> Agree with Steve.  The Articles need to be sewn up pretty quickly.  They
> may not be due to the NTIA along with the Bylaws, but they should follow
> quickly thereafter.  They are an essential part of the package.
>
> Greg
>
> On Tue, May 24, 2016 at 7:00 AM, Rosemary E. Fei <rfei at adlercolvin.com>
> wrote:
>
>> I believe ICANN Legal's idea was to address the Articles while NTIA is
>> reviewing the Bylaws, but I certainly agree the Articles need to get done
>> in time for the transition.
>>
>>
>>
>>
>> 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
>> 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>, and delete all copies
>> of this message and its attachments, if any.  Thank you.
>>
>> On May 24, 2016, at 3:57 AM, Steve DelBianco <sdelbianco at netchoice.org
>> <mailto:sdelbianco at netchoice.org>> wrote:
>>
>> 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><
>> http://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/<
>> http://www.sidley.com/>>
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>> http://www.sidley.com/><
>> http://www.sidley.com/files/upload/signatures/SA-autosig.png]<
>> http://www.sidley.com/>> SIDLEY AUSTIN LLP
>>
>>
>>
>>
>>
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