[client com] [CWG-Stewardship] Initial Discussion Draft on Transition Models

Greg Shatan gregshatanipc at gmail.com
Wed Apr 8 23:49:37 UTC 2015


Andrew,

I'm copying your email to the Client Committee email list for consideration
by Sidley and the Client Committee.

Greg Shatan

*Gregory S. Shatan **ï* *Abelman Frayne & Schwab*

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On Tue, Apr 7, 2015 at 3:29 PM, Andrew Sullivan <ajs at anvilwalrusden.com>
wrote:

> Hi,
>
> On Mon, Apr 06, 2015 at 11:04:14AM +0200, Lise Fuhr wrote:
> > Please see the attached initial discussion draft of the two models from
> our legal counsel.
>
> Thanks for this.  I've read it.  I have some questions.  Questions for
> Sidley are listed, and then some observations for our own discussion
> (which needn't take up Sidley's time) follow when appropriate in
> square brackets.
>
> In I.A, particularly in numbers 4 and 6, I can't tell whether the
> assumption is that there are new agreements between PTI and the RIRs,
> and PTI and IETF.  I think the fact that PTI is a new legal entity
> means that new agreements would be required.  Is that correct?  [The
> reason I ask this is because there is a possible risk of things coming
> apart if the other operational communities need to be engaged in a new
> negotiation.  If PTI just takes the existing agreements and does a
> global search and replace for ICANN with PTI, that's nice, but it
> doesn't solve everything.  For instance, the IETF would have to
> publish a new version of RFC 2860.  It's worth remembering that every
> grievance everyone has with an existing document comes into play once
> the document is opened for editing.]
>

​GSS: As I've noted elsewhere, the RIRs and IETF have 3 options: They can
remain under contract with ICANN and ICANN can arrange with PTI to provide
the services.  Depending on the existing agreements, an amendment to those
agreements may or may not be required. Alternatively, ICANN can assign any
or all of the agreements to PTI, so that PTI stands in ICANN's shoes in the
agreement.  Again depending on the existing agreements, the consent of the
RIRs​


>
> By way of comparison, in II.B, does using Functional Separation permit
> ICANN to continue working under its existing MoUs?  I'd assume yes,
> because AFAIK none of the existing agreements specify the internal
> arrangements of how ICANN delivers the service.  [Notwithstanding
> Milton's point about getting it "right", given the timeline there is a
> significant advantage to not having to negotiate, I think, no?]
>
> III.C talks about CSC.  In the case of a full legal separation with
> independent governance, would the CSC be needed at all?  Presumably
> the arrangements between PRI and their customers would be a
> contractual one, and as such the management of such contractual
> disputes ought to be via those contracts, and not through an extra
> body.  Or is the point that the way such a contractual arrangement
> would solve such disputes ought to be along the lines of the CSC?
>
> In III.D.2 there is a question about "ultimate accountability over
> ICANN's stewardhip".  I'm not entirely sure which cases this applies
> to.  If there is a legal separation, how is this question relevant for
> CWG?  Under the legal separation described, PTI becomes the new IANA
> functions operator.  If there's full independent governance of PTI,
> for instance, isn't ICANN's stewardship completely gone -- it has only
> responsibility for policy, and not for IANA operation at all, right?
> Is that part of the point of this question?
>
> On III.I, I'm not sure what the difference is between CSC and IRP.
> Why are both things needed?
>
> Best regards,
>
> A
>
> --
> Andrew Sullivan
> ajs at anvilwalrusden.com
> _______________________________________________
> CWG-Stewardship mailing list
> CWG-Stewardship at icann.org
> https://mm.icann.org/mailman/listinfo/cwg-stewardship
>
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