[client com] Request for legal feedback

[Lise Fuhr]

Dear Sharon,

Below are some questions in relation to ICANN Bylaws and secured funding from the DTO which the Client Committee would like you to review and give feedback on. Jonathan has provided some additional context  which is also included. Because DTO have the next call at 20:00 UTC on Thursday so it would be very helpful if we could get some feedback before then.

Context:


1.       ICANN Maintains a reserve fund. The target size of the fund is to cover in the region of 1 year of ICANN's operating expenses (including IANA / PTI).

2.       The DT-O / CWG has been concerned that PTI funding is ensured and protected in the event of financial difficulties or significant related issues at ICANN (to include but not limited to ICANN bankruptcy)

3.       The implementation of a PTI has been discussed and consideration has been given to ring fenced funds (in escrow?) which would provide for up to three years future funding of PTI IANA. Such funds to be assessed on an annual basis and the quantum adjusted for the then projected future expenditure.

Therefore the new bylaws need to cover for the above and it may be that they simply provide for future funding and then our work on implementation deals with the quantum (3 years) OR the bylaws hard code the quantum and the mechanism. What is and isn't necessarily contained in the bylaws seems to be the crux of the legal advice (in addition to the actual wording of the bylaws).

DTO questions:


1.       Understanding that we are not qualified to draft the language but also realizing that time is of the essence, here is how we changed the wording:  "To maintain ongoing operational excellence and financial stability of the IANA functions (so long as they are performed by ICANN or pursuant to contract with ICANN), ICANN shall be required to plan for and fund sufficiently the future expenses and contingencies to ensure uninterrupted performance of those IANA functions."

Some in DT-O preferred the word 'allocate' instead of 'fund' or 'allocate funds'.  Also some suggested that it might be good to include the concept of multi-year funding.  We will leave it to Sidley to decide how best to draft the language.
Note that the concept of 'uninterrupted' was quite important in our discussion.


2.       In conjunction with the request below, a response to this question would be appreciated:  "Does the proposed text cover the case where there is need for ongoing funding beyond a single year's budget?


Please let us now if there is a need for further explanations in relation to the questions above and if the deadline can be met.
I have copied Chuck in order to have him in the loop and by this ensure a quick response if there is a need for clarification.

On behalf of the Client Committee,
Lise
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