[client com] ICANN-PTI Naming Functions Agreement & Services Agreement Headers

Maarten Simon maarten.simon at sidn.nl
Fri Jul 29 07:34:57 UTC 2016

Hi Chris,

I understood yesterday that the idea is to have the naming contract out for public comment on August 7. Ideally that version should contain the correct text. If not, we should use the public comment period to bring it up but that is of course less preferable.



From: Chris Disspain [mailto:chris at disspain.id.au]
Sent: vrijdag 29 juli 2016 9:10
To: Maarten Simon; Becky Burr
Cc: Client Committee; Katrina Sataki; Byron Holland; Greeley, Amy E.; demi at registro.br
Subject: Re: [client com] ICANN-PTI Naming Functions Agreement & Services Agreement Headers
Importance: High

Hi Maarten,

Becky and I were both closely involved, as was Bernie Turcotte, Bart Boswinkel and a number of ccTLD folks.

Can you give me some idea of the timing constraints we have on this?

Maybe Becky and I can start the ball rolling and get something out to the ccNSO. Becky, are you available over the next couple of days?



On 29 Jul 2016, at 17:02 , Maarten Simon <maarten.simon at sidn.nl<mailto:maarten.simon at sidn.nl>> wrote:

Thanks Chris,

I was just about to sort this one out as I also noticed and discussed with Paul Kane that the references to the GAC Principles where if necessary at least not specific enough. Would be nice if we could have someone who was closely involved in the drafting of the final text of the FOI go through the (last version) of the document and come up with suggestions to bring both documents in line. I could give it a try too but I wasn't involved in the drafting of the FOI at all.



From: <cwg-client-bounces at icann.org<mailto:cwg-client-bounces at icann.org>> on behalf of Chris Disspain <chris at disspain.id.au<mailto:chris at disspain.id.au>>
Date: Friday 29 July 2016 at 08:45
To: "cwg-client at icann.org<mailto:cwg-client at icann.org>" <cwg-client at icann.org<mailto:cwg-client at icann.org>>
Cc: Becky Burr <becky.burr at neustar.biz<mailto:becky.burr at neustar.biz>>, Katrina Sataki <katrina at nic.lv<mailto:katrina at nic.lv>>, Byron Holland <byron.holland at cira.ca<mailto:byron.holland at cira.ca>>, "Greeley, Amy E." <AGreeley at sidley.com<mailto:AGreeley at sidley.com>>, "demi at registro.br<mailto:demi at registro.br>" <demi at registro.br<mailto:demi at registro.br>>
Subject: Re: [client com] ICANN-PTI Naming Functions Agreement & Services Agreement Headers


A number of the clauses in this current draft are likely to be of significant concern to ccTLDs. I have highlighted some paragraphs in the attached which will need to be re-drafted IMO.

The references to RFC 1591 and GAC Principles seem to have been inserted by Sidley so may appear simply because of a lack of background information on the history of these matters.

If there is to be any reference at all to the GAC Principles (and I am unclear that there needs to be one) it needs to be specifically to the 2005 Principles and not merely an undated reference.

It is IMPORTANT to note that the GAC Principles 2005, by their own terms, apply ONLY if the relevant government and ccTLD manager AGREE that they apply.

"1.3. These principles are intended as a guide to the relationships between Governments, their ccTLD and ICANN. They are not intended to be binding and need both Governments and Registries voluntarily to agree to apply them within their legal framework. If either the Government or the Registry decide not to adopt the principles, this cannot be held against the Registry, and the Registry still has a valid existence."

This is a critical nuance, so any reference to the GAC Principles (2005) must say that only where the relevant government and ccTLD manager agree they apply.

Further, the documents definition of 'Interested and Affected Parties' won't work in respect to ccTLD matters. The Framework of Interpretation uses very specific words about who needs to be consulted regarding ccTLD matters.

I have refrained from offering any redrafted wording as I don't think it would be appropriate for me to do so. However I strongly recommend that the leadership of the ccTLD community is immediately consulted so that acceptable words can be found (I have copied the ccNSO Chair and Vice Chairs into this email). Further, I believe that Sam Eisner will also be able to provide some guidance as to the pitfalls that the wording needs to avoid.

I am happy to assist in any way.



On 28 Jul 2016, at 14:10 , Hofheimer, Joshua T. <jhofheimer at sidley.com<mailto:jhofheimer at sidley.com>> wrote:

Client Committee - Attached is a further revised draft of the Naming Functions Agreement.  For convenience, we have included a clean version and two redlines - an incremental draft marked against the Sidley draft circulated per the email below, and a cumulative redline against the original ICANN-legal draft proposal.

Regarding Annex C, on our review many of the concepts do appear to have been incorporated either into the Naming Functions Agreement or into the governance documents.  We have added only a few suggested, additional clauses related to Annex C in the attached draft, along with mapping to the particular provision in the Annex.

Thank you and speak to you tomorrow.

Best regards,

Joshua Hofheimer
Sidley Austin LLP
jhofheimer at sidley.com<mailto:jhofheimer at sidley.com>
(213) 896-6061 (LA direct)
(650) 565-7561 (Palo Alto direct)
(323) 708-2405 (cell)

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