[CWG-Stewardship] [client com] The Reverse Hybrid Model

Tue Apr 14 08:12:49 UTC 2015

I again agree with Maarten...

*Cheryl Langdon-O**rr ...  *(CLO)

about.me/cheryl.LangdonOrr
[image: Cheryl Langdon-Orr on about.me]
  <http://about.me/cheryl.LangdonOrr>

On 14 April 2015 at 17:47, Maarten Simon <maarten.simon at sidn.nl> wrote:

>  Hi Matthew,
>
>  I do not think it to be useful to open this discussion as it in my
> opinion is the return of Contract co and it is also clear that the idea
> behind it (oversight in a separate entity) will not be acceptable for a
> serious number of us and we have enough other difficulties already on our
> plate.
>
>  Best,
>
>  Maarten
>
>   From: Matthew Shears <mshears at cdt.org>
> Date: Tuesday 14 April 2015 09:32
> To: "cwg-client at icann.org" <cwg-client at icann.org>, "
> cwg-stewardship at icann.org" <cwg-stewardship at icann.org>
> Subject: Re: [CWG-Stewardship] [client com] The Reverse Hybrid Model
>
>  Thanks Greg for putting together this variant.
>
> I don't see this as the return of the Contract Co model which was a
> completely separate structure - this variation of the legally separated
> affiliate model offers far greater predictability and certainty.
>
> I support further consideration of this variation by our legal advisers
> and also wanted to highlight two key points at the end of Greg's e-mail:
>
>
>
> *While structural separation of the IANA Functions operations does make a
> certain kind of future total separation easier (spinning off the current
> IANA Functions Operator within ICANN), this is really the less likely form
> of total separation.  The more likely form of total separation would be the
> selection of a new IANA Functions Operator, and that right would be
> structurally separated from ICANN.  More importantly from an operational
> perspective, the oversight and stewardship over the operations of the IANA
> Functions would be structurally separated from ICANN.  It would be firmly
> in the CSC, the PRT and the multistakeholder board.  This would be the
> primary job of the Affiliate, putting service accountability front and
> center.  Yet, it does not slight separability.*
>
> Matthew
>
> On 4/14/2015 8:59 AM, Client Committee List for CWG wrote:
>
> Hi Greg (and Paul),
>
>  Isn’t this this simply the return of contract co ? And didn’t we in
> Istanbul decide to leave this further aside a it was quit clear that there
> was not much of support for it?
>
>  Maarten
>
>   From: Client Committee List for CWG <cwg-client at icann.org>
> Reply-To: "cwg-client at icann.org" <cwg-client at icann.org>
> Date: Tuesday 14 April 2015 07:41
> To: "cwg-stewardship at icann.org" <cwg-stewardship at icann.org>, Client <
> cwg-client at icann.org>
> Subject: [client com] The Reverse Hybrid Model
>
>   All,
>
>  Paul Kane among others has suggested a variation on the current
> "internal" models.  Rather than quashing it, I thought it was proper to
> give it appropriate consideration.  As Paul is traveling, I thought I would
> put this together so that it could be given such consideration.
>
> For the sake of convenience, I'm calling it the "Reverse Hybrid Model."
>
> In this model, ICANN would still be the source of the right to perform the
> IANA Functions, as in the current internal model.  However, ICANN  would
> enter into an irrevocable agreement with the Affiliate for the IANA
> Functions.  Rather than having the right to perform the IANA Functions
> itself, the Affiliate would be given the right to contract for an entity to
> act as IANA Functions Operator.  (Thus, the Affiliate would be set up as a
> supervisor, not as an operator.)  Initially (but not perpetually), that
> subcontracted entity would be ICANN, the current IANA Functions Operator.
> However, the Affiliate would have the option, under the circumstances
> designated by the CWG, to separate the performance of the IANA Functions
> from ICANN (e.g., by issuing an RFP and enter into an agreement with a
> third party).
>
> As with the current internal models, ICANN Corporate would be the only
> member of the Affiliate. The multi-stakeholder community would (s)elect the
> independent Board of the Affiliate, which would have a limited (and
> defined) scope.
>
> It may appear that ICANN is granting a right to itself, through the
> Affiliate.  However, the key is that the Affiliate would have the oversight
> and stewardship responsibility over the IANA Functions, by exercising the
> rights and powers it has under the agreement with the IANA Functions
> Operator.  In other words, the Affiliate would be the contractor with
> oversight of ICANN-as-IANA Functions Operator, and would also have the
> right to exercise escalation rights, up to and including issuing an RFP and
> potentially a contract to a third party if the designated triggers
> warranted it.  The CSC and the PRT would be activities of the Affiliate,
> created by bylaws of the Affiliate, with a multistakeholder board providing
> oversight over the CSC and the PRT and ultimately over the IANA Functions
> Operator (initially, ICANN-as-IANA).
>
> Under the irrevocable agreement, ICANN would retain "ownership" of the
> IANA Function Operator rights but the Affiliate would (irrevocably) hold
> the right to subcontract for the performance of those services.  Although
> ICANN would be the only member, we would need to insure that its rights as
> the member to override the Board were as limited as possible.
>
> While this does not structurally separate the IANA Function operations
> from the rest of ICANN, it does separate the stewardship and the
> decision-making rights regarding the performance of the operations from
> ICANN.  As with the second option under the current hybrid proposal, there
> would be functional separation of the IANA Function operations from the
> rest of ICANN.
>
> While structural separation of the IANA Functions operations does make a
> certain kind of future total separation easier (spinning off the current
> IANA Functions Operator within ICANN), this is really the less likely form
> of total separation.  The more likely form of total separation would be the
> selection of a new IANA Functions Operator, and that right would be
> structurally separated from ICANN.
>
> More importantly from an operational perspective, the oversight and
> stewardship over the operations of the IANA Functions would be structurally
> separated from ICANN.  It would be firmly in the CSC, the PRT and the
> multistakeholder board.  This would be the primary job of the Affiliate,
> putting service accountability front and center.  Yet, it does not slight
> separability.
>
>  I believe this proposal has sufficient merit to warrant due
> consideration.   One of the reasons we have engaged Sidley is so that we
> can understand the viability and desirability of various models and
> mechanisms (and so I and other don't have to "play lawyer").  In that
> spirit, I am forwarding this model to both the CCWG and the Client
> Committee so that this "Reverse Hybrid" model can be appropriately
> considered.
>
>  Speak to you all in a few hours, as dawn rises over New York City.
>
>  Greg
>
>
>
>
>
> Kind regards to both
>
> Best
>
> Paul
>
>
>
>
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>
> --
> Matthew Shears
> Global Internet Policy and Human Rights
> Center for Democracy & Technology (CDT)+ 44 (0)771 247 2987
>
>
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>
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