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

Tue Apr 21 05:41:58 UTC 2015

Hi,

Simply put ICANN as an entity becomes the NTIA while PTI become the IANA
operator/manager.

Although I hope by ICANN you meant PRF giving the OKAY to issue a contract
to PTI and if ICANN board doesn't bulge to PRF, I guess CCWG accountability
mechanism comes into action.

Regards
sent from Google nexus 4
kindly excuse brevity and typos.
On 21 Apr 2015 05:55, "Greg Shatan" <gregshatanipc at gmail.com> wrote:

> 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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