[council] FOR YOUR REFERENCE: Applicable Bylaws concerning the Empowered Community rejection action use case scenario

[Mary Wong]

Dear Councilors,

Please find below the relevant text from the ICANN Bylaws that I hope is helpful as a reference source for some of the questions that were raised during your Wednesday session concerning a possible Rejection Action Petition scenario for the Empowered Community.

On the specific requirement that a Rejection Action Petition must (if it relates to an ICANN Budget) include rationale linking back to a public comment on the draft Budget, see Annex D, Section 2.2(c)(i)(A) (emphasis added):
“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 … “
(Note: A different but equally specific requirement applies to Rejection Action Petitions concerning a Standard Bylaw Amendment - see Annex D, Section 2.2(c)(i)(B).)

On indemnification, see Section 20.1 (https://www.icann.org/resources/pages/governance/bylaws-en/#article20) (emphasis added):
“ICANN shall, to the maximum extent permitted by the (California Corporations Code), indemnify each of its agents against expenses, judgments, fines, settlements, and other amounts actually and reasonably incurred in connection with any proceeding arising by reason of the fact that any such person is or was an agent of ICANN, provided that the indemnified person's acts were done in good faith and in a manner that the indemnified person reasonably believed to be in ICANN's best interests and not criminal. For purposes of this Article 20, an "agent" of ICANN includes any person who is or was a Director, Officer, employee, or any other agent of ICANN (including a member of the EC, the EC Administration, any Supporting Organization, any Advisory Committee, the Nominating Committee, any other ICANN committee, or the Technical Liaison Group) acting within the scope of his or her responsibility … The Board may adopt a resolution authorizing the purchase and maintenance of insurance on behalf of any agent of ICANN against any liability asserted against or incurred by the agent in such capacity … “

Link to all the timelines and procedural steps applicable to Empowered Community processes, including the filing and disposition of Rejection Action Petitions: https://www.icann.org/resources/pages/governance/bylaws-en/#annexD.

Link to the Bylaws describing the Empowered Community and its powers: https://www.icann.org/resources/pages/governance/bylaws-en/#article6.

Link to the GNSO-specific procedures and templates developed by the GNSO Bylaws Drafting Team headed by Heather: https://community.icann.org/display/GBIDT/Templates+and+Guidelines+Depository.

Thanks and cheers
Mary

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