[CWG-Stewardship] Notes, Recordings, Transcript CWG RFP3 26 January 21:00 UTC

Brenda Brewer brenda.brewer at icann.org
Mon Jan 26 23:09:59 UTC 2015

Dear all, 


The notes, recordings and transcripts for the CWG RFP3 Call on 26 January are available here:




RFP 3 Meeting - 26 January 2015



1. Welcome


2. Roll Call

Attendance will be taken from AC room

On audio only: Siva


3. Review Structural Analysis - Contract Co.

See https://docs.google.com/document/d/1KXYKuFKfPADgF3U0WmruLPrwhm8y3yHv160Lphz3-X8/edit?usp=sharing


Entity Status of Contract Co.

.  Survey did not reveal many areas of convergence

.  Objective to flesh out details of contract co. regardless of whether the principle of contract
co. is supported at the end of the day

.  Does non-profit corporation status require specific resources or could it be a 1$ company i.e.
how well does it need to be funded? No particular minimum funding requirements (no statutory
requirements), at least in the US. Not-profit does not make it cannot make money - in a US context
it mainly refers to the fact that it does not have shareholders and does not return profit to third
parties. Not-profit typically has a public interest purpose, which could also be in the form of a
membership organization (for the benefit of its members). 

.  A non-profit first needs to be established as a corporation - what is the timeframe to move from
a corporation to a not-for-profit corporation (501C status)? As it incorporates it is immediately
characterized as a not-for-profit. Needs specific approval and apply for tax exempt status. 

.  How does this compare to a limited liability corporation? All corporation provide limited
liability. A limited liability corporation is always for profit - lighter weight structure for a
typical corporation (for example, units compared to shares)


.  Diversity of jurisdiction would be satisfied by having it in another jurisdiction than
California. Suggested jurisdiction is Delaware which is set up to provide a home for many

.  Delaware law is set up to be easily adopted by third parties - allow for standard aspects of
setting up a corporation.

.  All registry agreements are signed under California law - could be a reason to maintain Contract
Co. in the US. 


.  Contract Co. would have no members

Relationship to ICANN

.  Independent of ICANN

.  Indemnification - contemplated in the contract, IANA Operator would indemnify Contract. Co. Would
that mean that ICANN would be funding its opponents case without any limitations? Normally parties
will bear their own costs - only in exceptional cases this may be different. Indemnification does
not mean you can act with impunity. 

Relationship to MRT

.  If MRT is a committee of Contract Co, this could be problematic. - was one of the suggestion, not
necessarily a recommendation

.  Bylaws of Contract Co would specify it would take its direction from MRT

.  Should MRT be Board of Contract Co? Entities should be separate to avoid empire building.
However, would it be possible to keep MRT within the same bounds as Contract Co.? How would MRT
institute itself? MRT could be the board and bylaws could restrict actions of MRT - could be as
effective as any other set of restrictions to avoid overreaching of board. Could address some
issues, but might create others? Consider pros and cons of structuring it this way.

.  RFP would be most labor intensive task for MRT but would only occur periodically.

Organizational Documentation

.  Contract Co would have Articles of Incorporation and Bylaws to make its limited purpose clear -
not able to act outside its limited remit. 

.  Any decisions that would need to be made would be specified in the Bylaws

.  Running of RFP would fall to the MRT


.  Contract Co would function in a fully transparent manner


.  Accountable to MRT; board members subject to recall; performance subject to review as well as

Composition of Board

.  Board will be as small as allowed by relevant corporate law.

.  May want to consider staying away from paying board members - but further advice may be needed.

.  Only motivation is to carry out limited tasks of Contract Co and take direction from MRT.

.  Staff would be as small as possible


.  Conducted primarily by phone and web

Term lengths / limits

.  Staggered, term limited

How will decisions be made

.  Decisions will be made by the MRT and adopted by the Board of Contract Co. 

Support needs

.  Little or no staff - delegate daily functions to CSC, MRT or MRT secretariat

.  May require a web-site as well as email and email lists

When would the Board meet

.  As rarely as possible consistent with legal requirements


.  Same as MRT


.  Safeguards must be in place to avoid capture

.  Capture shouldn't be defined by economic interests as registries are expected to have a specific
interest in the IANA function

Further legal advice will be needed to assess viability of Contract Co. option. - any suggestions
for legal counsel are welcome.


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