[CWG-Stewardship] Initial Discussion Draft on Transition Models

Thu Apr 9 12:41:15 UTC 2015

Greg

Some brief comments on the SIDLEY paper.

In regards of roles of CSC  and MRT/”members group”

I think it is crucial to have a very clear understanding and description of  what we define as escalation, and that this is not only used as a term relating to the role of the CSC. In our CWG discussions Escalation has been referring to the Multistakeholder component of the oversight function, - what used to be called the MRT. In the current structure the MRT function has been merged with the work of the CCWG - referred to as «members group” with legal personhood. It might look like necessary detailing, but I think we should keep the wording clear and underline that the escalation happens when it is sent over to MRT/”members group”/Multi-Stakeholder community Organisation.

H. Fundamental bylaws

What will these be?- While this is primarily an issue for CCWG, considerations should be given by CWG to whether there are any bylaws matters upon the model is conditioned.

YES, - any model based on sort of “golden bylaw” arrangements as the last sort of action towards IANA function operator (PRI) must be based on the CWG giving clear conditions on bylaws and how they should work in regards of decisions in the ICANN community and inside the ICANN company. We can`t push this bylaws arrangements to be solved by the CCWG  - even if the link between the CWG and the CCWG is strong, and the communications between the chairs are very good, we are working in parallel and aim to finish at the same time, - so CCWG haven’t got the time or detailed knowledge to design specific bylaws that will fit a new company structure for the IANA function and the oversight/stewardship of IANA.

Regarding the question from Andrew Sullivan

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 ?

Do you mean PTI ? It’s fundamental from a governmental perspective (and also for the ccTLDs I think..) that we don’t create a model with requirements for establishing a contractual relationship between the IANA functions operator (PTI) and the ccTLDs. This is an absolute no go.

Fra: cwg-stewardship-bounces at icann.org [mailto:cwg-stewardship-bounces at icann.org] På vegne av Greg Shatan
Sendt: 9. april 2015 01:50
Til: Andrew Sullivan
Kopi: Client; cwg-stewardship at icann.org
Emne: Re: [CWG-Stewardship] Initial Discussion Draft on Transition Models

Andrew,

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

Greg Shatan

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