[client com] Instructions to Sidley

Wed Jun 3 21:10:55 UTC 2015

Hi All,

With respect to A. below, we can provide language for consideration.  You may recall that in our Legal Structure Memorandum we had included language on this concept, as well as a specific list of the CCWG dependencies.  We could use this language as a starting point with further emphasis on the conditionality of the CWG proposal on these items (i.e., that if these items are not adopted, the proposal is no longer valid as it stands and would need to be modified).  This would then address both A. and B. of Jonathan’s note below since this list will cover the fundamental bylaws.

As for C, we are reviewing the proposal today and will circulate our mark-up in advance of the Thursday CWG call.

From the Legal Structure Memorandum (updates would be need to be made, including on the Separation Process which is now known)

CWG’s proposed legal structure and overall proposal is highly dependent and expressly conditioned upon the implementation by the CCWG of appropriate accountability mechanisms to support the model.  Specifically, the proposed legal structure and CWG’s overall proposal requires ICANN accountability in the following respects:

1.                  ICANN Budget.   Ability for the community to approve or veto the ICANN budget.  In addition, the following would be requirements relating to the budget:

(a)                           IANA Function’s comprehensive costs should be transparent; and

(b)                           Operating plans and budgets to include itemization of all IANA operations costs to the project level and below as needed. Prefer beginning in FY `16, required beginning in FY '17.  An itemization of IANA cost includes “Direct Costs for the IANA department”, “Direct Costs for Shared resources” and “Support functions allocation”.  Furthermore the aim is to have these cost itemized into more specific costs related to each specific function.

2.                  Community Empowerment Mechanisms.  The  multistakeholder community would be empowered to have certain rights with respect to ICANN Board and the IANA functions, which are more specifically addressed below.

(a)                           Ability to appoint and remove members of the ICANN Board, either as statutory members or designators, and to recall the entire Board;

(b)                           Ability to exercise oversight with respect to key ICANN Board decisions.  In a statutory membership structure, this would be the ability to approve or veto certain key ICANN Board decisions.  In a designator structure, this may be the ability to request a reconsideration by the ICANN Board, with the ultimate enforcement mechanism being an IRP process and/or the potential for a Board recall.  For the purposes of the CWG recommendation, the stakeholder community or member group must, at a minimum, have the ability to review and approve:

                                                                          i.                  ICANN Board decisions to reject recommendations coming out of a periodic or special review of the IANA function by the IFR or a Separation Review; and

                                                                        ii.                  ICANN budget (see #1 above); and

(c)                            Ability to approve amendments to fundamental bylaws (whether as statutory members or designators of ICANN), with the ICANN Board specifically blocked from amending such fundamental bylaws.

3.                  IANA Function Review (IFR).  An IFR should be created and empowered to conduct periodic and special reviews of the IANA functions.  The IFR should be contemplated by the ICANN bylaws.

4.                  Customer Standing Committee (CSC).   A CSC should be created and empowered to monitor the performance of the IANA functions and escalate non-remediated issues to the ccNSO and GNSO.  The CSC should be contemplated by the ICANN bylaws.  If not currently within the mandate, the ccNSO and/or GNSO should be empowered to address matters escalated by the CSC.  This should be contemplated by the ICANN bylaws.

5.                  [Separation Review.]

6.                  Appeal mechanism.   An appeal mechanism, for example in the form of an Independent Review Panel, will be required for issues relating to the IANA functions.  For example, direct customers with non-remediated issues or matters referred by ccNSO or GNSO after escalation by the CSC would have access to an Independent Review Panel.

7.                  Fundamental bylaws.  All of the foregoing mechanisms are to be provided for in the ICANN bylaws as “fundamental bylaws” with a higher than majority vote by the community (whether as statutory members or designators of ICANN) to amend, and a prohibition on ICANN Board amendment of these bylaws.

SHARON FLANAGAN
Partner

Sidley Austin LLP
+1.415.772.1271
sflanagan at sidley.com<mailto:sflanagan at sidley.com>

From: cwg-client-bounces at icann.org [mailto:cwg-client-bounces at icann.org] On Behalf Of Greg Shatan
Sent: Wednesday, June 03, 2015 1:58 PM
To: Lise Fuhr
Cc: Client
Subject: Re: [client com] Instructions to Sidley

Jonathan,

That makes sense to me as well.  I'm not sure that (A) (language of conditionality) is truly "legal" but I think they are well placed to provide it.  I think we will also need Sidley to provide the voice of reason and reasoned/expert legal interpretation to help keep us from driving into the weeds or in reverse as some folks just won't let go of dearly-held beliefs and concerns despite the lack of a legal or factual basis.  This will be necessary on tomorrow's call (but hopefully, not too necessary).

As for #2, Grace has now circulated all of the ICG/CWG/CCWG meetings in one handy email.  From our POV, I expect that we would like Holly and/or Sharon (but preferably "and") at all the CWG meetings and at the Sunday info session, and I expect the Public Forum will deal with "us" as well.  We need to figure out if they should prepare anything more than just being prepared to field questions as they come.  Will they be presenting anything at any of our sessions?

Greg

On Wed, Jun 3, 2015 at 4:29 PM, Lise Fuhr <lise.fuhr at difo.dk<mailto:lise.fuhr at difo.dk>> wrote:
Hi All,
I can confirm the understanding.
Best,
Lise

Fra: cwg-client-bounces at icann.org<mailto:cwg-client-bounces at icann.org> [mailto:cwg-client-bounces at icann.org<mailto:cwg-client-bounces at icann.org>] På vegne af Jonathan Robinson
Sendt: 3. juni 2015 17:22
Til: Client
Emne: [client com] Instructions to Sidley
Prioritet: Høj

All,

Following discussions within the CWG last week, and again yesterday, it seems essential that we communicate effectively with Sidley in three areas:

1.       The CWG’s requirements in order to finish the proposal

2.       The CWG’s requirements to support the proposal in B.A.

3.       The CWG’s potential requirements post B.A. and/or with implementation

Arguably, the current scope of work deals with 1 & 2 above and we have not yet properly scoped or discussed 3.
Of 1 & 2 above, 1 is clearly most urgent so I’ll concentrate on that here.

N.B. Our current plan is to have the final reading of the proposal in tomorrow’s CWG meeting

It is my understanding that we need to secure the following from Sidley in advance of concluding the final proposal for send-off next week.

A.      A form of language which effectively captures the conditional nature of the proposal i.e. that the proposal is valid if and only if adequate accountability mechanisms
(as currently contemplated by the CWG in conjunction with the CCWG) are in place at the time of the transition (or failing that or irrevocably committed to being in place within a defined and agreed timeframe).

B.      A confirmation around the use (or not) of the ICANN bylaws (golden?) as described in the CWG proposal in order to capture the necessary components of the CWG proposal that need to be enshrined in the ICANN bylaws

C.      A confirmation that the final proposal is consistent with Sidley’s advice given to date and, to the extent that it is not, what changes are required.

Please can you confirm this understanding as soon as possible in order that this position and associated instructions can be communicated to Sidley as soon as possible.

Given that I believe tomorrow’s scheduled Client Committee meeting is leaving it too late, I have taken the opportunity to directly communicate this draft scope of final instructions (A-C above) to Holly & Sharon so that they are on notice that we are working it up.

Thank-you for your prompt attention to this.

Jonathan

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