[CWG-Stewardship] DT-X Separation Mechanism - first draft - correct link

Tue Apr 21 04:48:39 UTC 2015

Olivier,

I don't think IANA (or PTI) would be issuing an RFP.  PTI is not the one
issuing the (Post-Transition) IANA Functions Contract.  Rather, ICANN is
the one issuing the IANA Contract, so ICANN would be the party issuing a
new RFP.  Looked at another way, ICANN "owns'" the right to perform the
IANA Functions and is granting PTI the right to do so under contract.

Also, since PTI is a separate entity from ICANN a bankruptcy filing by
ICANN should have no legal effect on PTI.  (Note that, at least in the US,
a non-profit cannot be the subject of an "involuntary" bankruptcy (one
started by a third party)).

A more interesting issue in bankruptcy would be what happens to the IANA
Functions Contract.  Can IANA terminate the agreement? (Almost certainly
not.) Can ICANN reject the agreement (Probably.)

Or whether the IANA Contract could provide that PTI gets separated from
ICANN (i.e., ICANN would no longer be a member) but PTI would receive the
right to perform the IANA Functions without a contract (i.e., PTI would
"own" the IANA Function right rather than have the right by contract).
 (This is an advanced set of questions, but bankruptcy generally wants
debtors to retain their assets, not lose them without compensation. So my
gut reaction is "not likely.")

Greg

On Sun, Apr 19, 2015 at 11:39 AM, Olivier MJ Crepin-Leblond <ocl at gih.com>
wrote:

>  Dear Greg,
>
> thanks for this info. Glad to see the component parts would still exist.
> I'd venture to say that whether Chapter 7 or Chapter 11 bankruptcy is
> invoked, it's probably better that IANA issues an RFP as it would signify
> that ICANN is in real trouble.
> Kindest regards,
>
> Olivier
>
>
> On 18/04/2015 01:12, Greg Shatan wrote:
>
>  Olivier,
>
>  Here is my understanding:
>
>  Bankruptcy (by which I mean filing for bankruptcy in Bankruptcy Court)
> itself would not affect the existence of the SO/ACs and CCWG, which
> currently don't legally exist as separate entities anyway.  One of the
> potential end results of a bankruptcy is a dissolution of an entity, with a
> winding down of the business, sale of assets and payments to creditors (by
> order of priority, and often at "pennies on the dollar").  That is the
> worst case scenario of bankruptcy.  A dissolution could result in the end
> of ICANN as we know it.
>
>  The better case in bankruptcy is a restructuring or reorganization of
> the bankrupt entity, allowing it to resolve its debts, restructure or
> eliminate obligations, and then emerge from bankruptcy as a "slimmed-down"
> healthier entity.  It's up to board and management of a failing or
> "flailing" company to declare bankruptcy when the company is still healthy
> enough to file for a restructuring, rather than a dissolution.
>
>  If the SO/ACs became unincorporated associations, the bankruptcy of
> ICANN would have no effect on the existence of the SO/ACs (which would then
> be legal persons).
>
>  This is my understanding of the general rules as they relate to business
> entities.  The rules of bankruptcy could be significantly different for
> non-profits, but probably would not change the direct answer to your
> question.
>
>
>  Greg Shatan
>
>  Caveat: I am not a bankruptcy lawyer and this is not legal advice.
>
> On Fri, Apr 17, 2015 at 6:27 PM, Olivier MJ Crepin-Leblond <ocl at gih.com>
> wrote:
>
>>  Dear Avri,
>>
>> the document does not include the case of ICANN bankruptcy which I
>> mentioned on the conference call.
>> Should it be included? Furthermore, in the unlikely event of ICANN
>> bankruptcy would ACs, SOs and a CCWG actually still legally "exist"?
>> Kindest regards,
>>
>> Olivier
>>
>>
>> On 17/04/2015 12:38, Avri Doria wrote:
>>
>> hi,
>>
>> the correct drive link.
>>
>>
>> https://docs.google.com/document/d/1WvBqtgXJ7rNrbN-5Tjf5-gi80aZ2oRYDtF_JLrETRqg/edit?usp=sharing
>>
>> avri
>>
>> On 16-Apr-15 22:39, Avri Doria wrote:
>>
>> Hi,
>>
>> A first draft of a possible separation mechanism is available
>>
>> <https://docs.google.com/document/d/1pjRsvePXLHrK0zzFmMcavzvSXehds5FTCEUPPcc7K6w/edit?usp=sharing>
>> <https://docs.google.com/document/d/1pjRsvePXLHrK0zzFmMcavzvSXehds5FTCEUPPcc7K6w/edit?usp=sharing>
>>
>> The drive document remains open for suggested edits and comments.
>>
>> For convenience, have attached a word and pdf version
>>
>>
>> avri
>>
>>
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>
> --
> Olivier MJ Crépin-Leblond, PhDhttp://www.gih.com/ocl.html
>
>
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