[bylaws-coord] Notes from Bylaws Coordination Group Meeting 26 May at 19:00 UTC

[Grace Abuhamad]

Dear all, 

 

Please find the notes and transcript of the Bylaws Coordination Group meeting. The recording is available at: https://icann.adobeconnect.com/p1fgfqc8kgw/ 

 

--Grace

 

Bylaws Coordination Group Meeting

26 May @ 19:00 UTC

 

This meeting is being recorded.

Press *6 to mute and unmute your phone line.

 

Notes

 

A few items to call to BCG's attention: 

 

1. Grandfathering 

?         Suggestion from Becky Burr to not have a separate clause for renewal coverage.

?         Support from Rosemary Fei for Becky's suggestion. 

 

 

2. Gender diversity

?         Inclusion of gender diversity was not included in the Bylaws because it was not included in the CCWG-Accountability Proposal. 

?         Approach supported by Becky Burr, Mathieu Weill, Thomas Rickert, Greg Shatan, Jordan Carter. 

 

 

3. GAC changes from NTIA

?         Changes suggested to the GAC-related Bylaws would make the provision clearer and proposal is to move forward with the suggested  changes. 

?         Support from Kavouss Arasteh, Steve Delbianco, Greg Shatan, Thomas Rickert, and Sidley Austin. 

 

 

4. RySG recommendations on ATRT3

?         Is there a need to call out Ombudsman and Reconsideration Process per the RySG comments?

?         Decision to fix the opening line to say: " without limitation" and not make the inclusion of Reconsideration/Ombudsman in the text

 

 

Action: Make change to opening line ("without limitation") for section on ATRT reviews. 

 

5. WHOIS/RDS timing

?         Inserted the date of 31 Oct 2016 as the latest date for ICANN to start the review without causing a Bylaws violation. 

?         Mathieu and Cheryl have flagged a potential typo in that section raised in an email from Chuck Gomes (email has been forwarded to BCG list). 

 

 

Other issues: 

 

Have all the CCWG-Accountability comments been addressed?

?         Yes, and there are responses to each in the table. Some resulted in changes, and some did not. 

?         Sidley and Adler have confirmed that all the CCWG-Accountability comments have been addressed in the table. 

 

 

Articles of Incorporation 

?         Steve Delbianco suggests a memo to clarify the status of ICANN's incorporation 

?         General acceptance of the drafting of Bylaws and Articles (no modifications to Articles).

 

 

Action: ICANN to work with external firms to provide a clarifying memo on the status of ICANN's incorporation 

 

Board approval of Bylaws and action for Articles

?         John suggests that the Board could approve the Bylaws and request that the Articles be posted for public comment (to ensure that a public comment takes place). 

 

 

Is the BCG in agreement that the Bylaws are consistent with the Proposals as delivered in Marrakesh? 

?         Bruce requests a response so that he can communicate the feedback to the Board for their call later today. 

?         Mathieu applauds staff effort on the Bylaws revisions and believes the Bylaws are consistent with the CCWG-Accountability proposal. 

?         Support for Mathieu's statements from Cheryl, Kavouss, Thomas

?         John thanks Sidley and Adler firms for their work and coorperation on the Bylaws effort. 

 

 

Call closes at 20:00 UTC. 

 

 

Chat Transcript 

 

>  Brenda Brewer:Hi all and welcome to the Bylaws Coordination Meeting on 26 May @ 19:00 UTC!

>  Greg Shatan:Hello, all.  I'm inflight, so I am in listening/chat mode only.

>  cherine chalaby:Hi Everyone

>  Mathieu Weill, ACCT co-chair:Hello everyone

>  Chris Disspain:greetings

>  Grace Abuhamad:Hi all -- all the documents circulated yesterday are uploaded, but I have just put this one on screen so that you have something to look through (better than a blank screen). If you would prefer anoter document, please let me know

>  Steve Crocker:Heloo, everyone

>  Thomas Rickert, CCWG Co-Chair:Hi everyone!

>  Greg Shatan:yes

>  Chris Disspain:yes JJ

>  Thomas Rickert, CCWG Co-Chair:can those not speaking please mute their lines?

>  Rosemary Fei (Adler Colvin):Hello, everyone!

>  Thomas Rickert, CCWG Co-Chair:thanks, Sam!

>  Thomas Rickert, CCWG Co-Chair:Sam, are you or your colleagues aware of any items in these plants that might be outside the new mission?

>  Rosemary Fei (Adler Colvin):Agree with Becky, the separate clause for renewal coverage makes no sense now that it only applies to one clause.

>  Thomas Rickert, CCWG Co-Chair:Thanks, I just want to get on record with this as we might get the question.

>  Thomas Rickert, CCWG Co-Chair:Understood, Sam. I am personally ok with this!

>  Brenda Brewer:  Please identify your name if your number listed above ends with 0240, 2001 or 2530.  Thank you!

>  Kavouss Arasteh:Thomas, What do you mean by" PLANTS" 

>  Kavouss Arasteh:Do you mean " Plans"?

>  Thomas Rickert, CCWG Co-Chair:sorry, Kavouss. Typo. I meant "plans" and did not want us to enter the botanic world

>  Mathieu Weill, ACCT co-chair 2:I agree with the approach Sam, and support this way forward

>  Thomas Rickert, CCWG Co-Chair:+1, Mathieu

>  Greg Shatan:lost sound, is that just me?

>  Becky Burr:isn't the language in the core values now a carry over from the existing bylaws?

>  Grace Abuhamad:There is still sound @Greg. There was a moment when we thought we couldn't hear Kavouss. 

>  Mathieu Weill, ACCT co-chair 2:Yes , in the document Sam

>  Becky Burr:what about linguistic diversity, etc?  I am concerned about picking and choosing

>  Thomas Rickert, CCWG Co-Chair:Agree, Becky. Also, it is not for us to make that determination.

>  Greg Shatan:i support the approach in the doc on screen.

>  Steve DelBianco [GNSO - CSG] 2:Agree with Jordan

>  Greg Shatan:Agree with Jordan -- No New Asks.

>  andrew sullivan:Sorry I was late

>  Greg Shatan:Wi-if problems?

>  andrew sullivan:meeting overrun problems

>  Steve DelBianco [GNSO - CSG] 2:I support the INTA changes.   

>  Greg Shatan:Agree with Steve.  This is clearer.

>  Thomas Rickert, CCWG Co-Chair:I am also ok with these modifications

>  Holly J. Gregory (Sidley):we at Sidley think it is fine as well

>  Mathieu Weill, ACCT co-chair 2:Thanks Holly !

>  Steve DelBianco [GNSO - CSG] 2:list "may include the following" was in our CCWG report, too

>  Rosemary Fei (Adler Colvin):Yes, Steve, that was the basis on which counsel suggested the change to the Bylaws.

>  Kavouss Arasteh:I do not see any need to change

>  Becky Burr:i  think "may assess include the following" is a little confusing

>  Rosemary Fei (Adler Colvin):The change is not required to allow the topics to be addressed in the reviews.

>  andrew sullivan:I don't care myself; I think they're both consistent with the proposal

>  Rosemary Fei (Adler Colvin):The word "include" implies that it's not an exhaustive list, that there is more.

>  Steve DelBianco [GNSO - CSG] 2:here is what our report and AoC have:  Issues that may merit attention in this review include:

>  Cheryl Langdon-Orr  (CLO):May include without limitation  was I beleive the intention... We must be unambiguous

>  andrew sullivan:Strictly, it only implies that there _could_ be more.  </pedant>

>  Becky Burr:but i don;t think that actually works steve

>  Rosemary Fei (Adler Colvin):Agree that inserting "without limitation" after "include" would also work.

>  Rosemary Fei (Adler Colvin):Sorry, that should be after "the following"

>  Becky Burr:if people are uncomfortable adding "without limitation" then i would include the Ry suggestion

>  Rosemary Fei (Adler Colvin):It's easier to justify adding "without limitation" based on the Proposal, rather than adding items not in the Proposal.

>  Greg Shatan:If the intent is for th list to be non-eclusive, we need the "without limitation" change.

>  Chris Disspain:Rosemary + 1

>  Greg Shatan:And the "include" change.

>  Becky Burr:comfortable with that Jordan

>  Steve DelBianco [GNSO - CSG] 2:"without limitation" gets at what we wanted.  I think we need to fix that opening line

>  Steve DelBianco [GNSO - CSG] 2:if we only add the Reonsideration stuff, we will NOT have fixed the limiting problem

>  Steve DelBianco [GNSO - CSG] 2:"may include but is not limited to"

>  Cheryl Langdon-Orr  (CLO):That is ok By ME 

>  Becky Burr:any of those work

>  Greg Shatan:Makes no difference to me.

>  Cheryl Langdon-Orr  (CLO):JUST MAKE IT UNAMBIGUOUS!

>  andrew sullivan:No difference to me

>  Greg Shatan:I have no mouth.

>  Cheryl Langdon-Orr  (CLO):I trust that is not truely the case

>  Becky Burr:just a temporary disability

>  Greg Shatan::-X

>  Cheryl Langdon-Orr  (CLO)::-)

>  Rosemary Fei (Adler Colvin)::-O

>  Kavouss Arasteh:I SEE NO PROBLEM TO ADD SUCH CLARITY  

>  andrew sullivan:I confess that I'm trying to imagine the effects of being mouthless on a lawyer.  It's not a comfy idea!

>  Greg Shatan:Makes it hard to be a mouthpiece...

>  Rosemary Fei (Adler Colvin):Lawyers like organizations to be in compliance with their bylaws, and prefer not to have our work put our clients out of compliance, but of course we defer to what our clients want, once they understand the issue.

>  Chris Disspain:Rosemary + 1

>  Cheryl Langdon-Orr  (CLO):I think the modifier is required

>  Chris Disspain:ias a Board member I would be uncomfortable approving b laws that I know we are in breach of or soon will be

>  Steve DelBianco [GNSO - CSG] 2:Have we audited the rest of these new bylaws to ensure there are no OTHER immediate violations?

>  Cheryl Langdon-Orr  (CLO):also is there a possible typo  in the text 

>  John Jeffrey:I agree with Rosemary.

>  John Jeffrey:@SteveDelB- Although there has been no such audit, where we are aware of such non-compliance we feel it is useful to point it out.

>  Cheryl Langdon-Orr  (CLO):AGree  SAM  and ALAC  will also agree

>  Steve DelBianco [GNSO - CSG] 2:@John -- are you aware of other areas of non-compliance?

>  Rosemary Fei (Adler Colvin):In the draft, the reference to SSR should be to Directory Service -- cut and paste error, I assume.

>  Bruce Tonkin:Agree given we know there will be some non-compliance that we should make it consistent with our plans.

>  John Jeffrey:@SteveDelB - no, and if I become aware of such non-compliance will/would flag

>  Cheryl Langdon-Orr  (CLO):The revised Bylaw on the RDS Review reads:

>The revised Bylaw on the RDS Review reaqds:

> 

>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 to be timely if the applicable SSR Review Team is convened on or before 31 October 2016.

> 

>Is this a type where they inserted SSR instead of RDS??

> 

> 

>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 to be timely if the applicable SSR Review Team is convened on or before 31 October 2016.

> 

>Is this a type where they inserted SSR instead of RDS??

> 

>If not, I do not see the cnnection and we have entered a world where the Mad Hatter rules (alth

>  Steve DelBianco [GNSO - CSG] 2:May we discuss articles of Incorporation?

>  Steve DelBianco [GNSO - CSG] 2:I have to dial-in again ...

>  Greg Shatan:There were a number of other changes suggested in the CCWG comment,as well s other comments.  How are we handling these?

>  Mathieu Weill, ACCT co-chair 2:Could we have confirmation on the calll that all CCWG comments have been addressed ? 

>  Mathieu Weill, ACCT co-chair 2:(it's my impression)

>  Chris Disspain:I believe MW is correct...

>  Cheryl Langdon-Orr  (CLO):Iam staying mute on this cll sorry  but I am in two ICANN Meetings at once and the other audio was being oicked up by my mike before

>  Mathieu Weill, ACCT co-chair 2:Thanks Sam

>  Greg Shatan:Chart is 196 pages....

>  Holly J. Gregory (Sidley):We agree with Sam that the CCWG comments have been addressed

>  Bruce Tonkin:Yes @Greg - it is long but at least thorough

>  Rosemary Fei (Adler Colvin):My hand is up

>  Mathieu Weill, ACCT co-chair 2:Thanks Holly. This is very helpful for us before we report to the group. 

>  Steve DelBianco [GNSO - CSG] 2:I am back.  In queue

>  Becky Burr:yes, it was helpful

>  Steve DelBianco [GNSO - CSG] 2:I am back on phone.  In queue for a question

>  Mathieu Weill, ACCT co-chair 2:Wonderful !

>  Cheryl Langdon-Orr  (CLO):Good to tidy the laguage if needs be Steve 

>  Cheryl Langdon-Orr  (CLO):Memo would be useful

>  Rosemary Fei (Adler Colvin):Organized is a broader term, that covers entities that are not corporations; incorporated would be fine, if that is helpful, to substitute in the Articles.

>  Steve DelBianco [GNSO - CSG] 2:the words are ALREADY in current byaws and Articles.

>  Steve DelBianco [GNSO - CSG] 2:A memo explaining that might be sufficient

>  Holly J. Gregory (Sidley):Incorporation is one form of organization so to say organized under California :  organized or incorporated set out same relation to California law

>  Rosemary Fei (Adler Colvin):The "organized under" formulation is extremely common.

>  Greg Shatan:I believe the Supreme Ciurt in Hertz v Friend (2010) resolved the HQ and principal place of biz question.

>  Mathieu Weill, ACCT co-chair 2:Let's settle with a memo to avoid any last minute sensitive change

>  Thomas Rickert, CCWG Co-Chair:A memo would be helpful. I do not think we should change the language. 

>  Cheryl Langdon-Orr  (CLO):As long as the legal expertise  cn be 'brought to bear'

>  Greg Shatan:Agree that a memo would be good, as a Guide to the Perplexed.

>  Greg Shatan:Those words were selected due to legal custom.

>  Bruce Tonkin:I would support a memo as well that is aimed at the particular audience that Steve is raising.

>  andrew sullivan:Do we think that we could write a Guide to the Perplexed on this that would not be infinitely long? ;-)

>  Cheryl Langdon-Orr  (CLO):Agree Chris  

>  Greg Shatan:i amy be kicked off shortly as my plane is over Philly and starting is descent.

>  Cheryl Langdon-Orr  (CLO):looks like we are sorted then :-)

>  Holly J. Gregory (Sidley):would you like Sidley/Adler to do the memo?

>  Greg Shatan:its

>  Greg Shatan:Andrew, tihis can be dealt wth fairly succincltly IMHO

>  Steve DelBianco [GNSO - CSG] 2:Why are we removing "disqualified persons" clause in Articles?

>  Cheryl Langdon-Orr  (CLO):OK

>  Kavouss Arasteh:i AGREE WITH THAT USEFUL SUGGESTION

>  cherine chalaby:Agree with JJ

>  Rosemary Fei (Adler Colvin):Steve, that's addressed in one of the emails that was circulated with the draft articles.

>  Kavouss Arasteh:Public Comment Approach is a correct one

>  andrew sullivan:@Greg: I was referring to the population of the perplexed.

>  Rosemary Fei (Adler Colvin):In short, the reference is to a section of the Internal Revenue Code that does not apply to ICANN.

>  Greg Shatan:ahhhhhhhhhhh

>  Rosemary Fei (Adler Colvin):In addition, the definition of disqualified person that applies to ICANN (there is one) would mean that ICANN could not be controlled by its own board -- so the prohibition makes no sense.

>  Bruce Tonkin:Just re-iterating - I want to get a sense of whether the bylws coordiantion group is comfortable that the revisions to the draft byalws out of the public comment process are consistent with the reports received  by the Board.

>  Cheryl Langdon-Orr  (CLO):AGREE +++

>  Kavouss Arasteh:I fully endorse that point

>  Bruce Tonkin:It is helpful that the legal team has been working together and that the changes suggested by Sidley and Adler have been taken into account based on the CCWG public comments.

>  Cheryl Langdon-Orr  (CLO):Indeed

>  Kavouss Arasteh:Pls include my full support for the comments made by Mathieu

>  Thomas:I agree with this assessment! 

>  Thomas:BTW - Thomas Rickert that is. 

>  Thomas:I have duplicated myself in the AC room, sorry for that

>  cherine chalaby:Thank you Mathieu 

>  Becky Burr:yes, great job

>  andrew sullivan:@Thomas: if only you'd been able to duplicate yourself sooner!

>  Cheryl Langdon-Orr  (CLO):great progress 

>  Cheryl Langdon-Orr  (CLO):Bye 

>  Thomas:Just to fully support Mathieu's praise for all the hard work!

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