[CWG-Stewardship] Additional Bylaws Issues
Greg Shatan
gregshatanipc at gmail.com
Wed Apr 13 19:37:42 UTC 2016
See below.
On Wed, Apr 13, 2016 at 9:54 AM, Gomes, Chuck <cgomes at verisign.com> wrote:
> A few responses below Seun.
>
>
>
> Chuck
>
>
>
> *From:* Seun Ojedeji [mailto:seun.ojedeji at gmail.com]
> *Sent:* Wednesday, April 13, 2016 1:41 AM
> *To:* Gomes, Chuck
> *Cc:* Lisa Fuhr (fuhr at etno.eu); cwg-stewardship at icann.org; 'Jonathan
> Robinson' (jonathan.robinson at ipracon.com)
> *Subject:* Re: [CWG-Stewardship] Additional Bylaws Issues
>
>
>
> Sent from my LG G4
> Kindly excuse brevity and typos
> On 13 Apr 2016 12:00 a.m., "Gomes, Chuck" <cgomes at verisign.com> wrote:
>
> >
> > ICANN Bylaws input from Chuck Gomes 12 April 2016
> >
> >
> >
> > In my personal review of the Bylaws I noted the following issues that I
> don’t think were covered in the CWG Bylaws Review meeting today:
> >
> > · There are several acronyms or terms that are used before they
> are defined:
> >
> SO: Observed that as well, but considering that their explanations are
> quite long and detail I wonder to what extent they could reorganise things.
>
> *[Chuck Gomes] I also would not suggest reorganizing text but I do believe
> that the first use of the acronym or term should either be briefly
> explained or a reference to the definition should be given that points to
> the full definition. In the case of acronyms the acronym should at least
> be spelled out in its first occurrence.*
>
> GS: In organizing legal documents, the term "defined" often just means
> "creating a defined term," and does not imply that an explanation is part
> of the equation. Here's an example: I
> mprovement of Technical Management of Internet Names and Addresses;
>
> Proposed Rule
> ("Green Paper"). In this example the document has been "defined" as
> the Green Paper.
>
> > · Unless I missed it somewhere, as far as I can tell the
> ‘Decisional Participants’ are not named anywhere in the Bylaws even though
> they are referenced dozens of times.
> >
> SO: That seem to be attributed(defined) in Section 6.1a
>
> *[Chuck Gomes] Thanks Seun. I read that but didn’t make the connection.*
>
> > · Section 8.2 on page 54 of the redlined version (page 56
> overall) says that one member of the NomCom will be selected by the NCUC.
> >
> SO: While I think this is particularly within the scope of the CCWG, I
> don't think nomcom composition was even discussed in that group and I am
> quite surprised that there has been edits that exceeds just renumbering on
> that section.
>
> > o I have no problem with that but I do wonder if it should say NCSG
> instead of NCUC.
> >
> > o I am pretty sure that the original version of this language was
> before there was a NCSG and before the NPOC existed.
> >
> SO: While my concern above still stand, the version I am looking at that
> compares the current bylaw with proposed version seem to indicate that it's
> been NCUC all along.
>
> *[Chuck Gomes] It has been the NCUC all along, but the GNSO structure has
> changed. This is probably a decision for the NCSG.*
>
GS: Without commenting on the merits, I think this is outside our remit.
> > · Section 16.2(a) on page 86 of the redline version (page 89
> overall) says: “ICANN, in its capacity as the sole Member of PTI, shall
> elect the directors of PTI in accordance with the articles of incorporation
> and bylaws of PTI and . . .”
> >
> > o It is my understanding that ICANN shall elect three of the five
> directors, not all five.
> >
> > o Shouldn’t this be corrected?
> >
> SO: Oops that's a good catch and somehow I thought I saw where the
> composition was indicated early now I can't seem to find it. Thanks for
> noting that
>
GS: Since ICANN is the sole Member, it has the role of electing all the
directors. (This is one of the joys of the "Member Model"!) However, ICANN
only nominates 3, and it is supposed to elect the 2 nominated by the
community, in addition to the 3 it nominates..
> > · Section 18.7(c) on page 97 of the redline version (page 100
> overall) says that the IFRT will contain two (2) representatives from the
> RySG.
> >
> > o Note that it also says that there will be three ccTLD members (two
> from the ccNSO and one not from the ccNSO).
> >
> > o Note also that Section 19.5(iii) says that the SCWG will have three
> (3) RySG representatives, the same number as for ccTLDs, two from the ccNSO
> and one not from the ccNSO.
> >
> > o Was this just an inadvertent oversight?
> >
> > o It seems to me that the IFRT should have three (3) representatives
> from the RySG.
> >
> SO: For IFRT, one could say that the Rysg having 2 is because Registrar
> stakeholder group has one which makes 3 in total and perhaps that of the
> SCWG needs to be updated to 2 RySG.
>
> *[Chuck Gomes] The RrSG is not part of the RySG.*
>
GS: LOL
> On a sightly related note, the more I look at the compositions on the
> review teams the more I wonder how this skipped us during the proposal
> development. There are 8/9 votes (counting the NCSG and CSG) already from
> the SO related groups and just 4 from the AC. It's a huge imbalance that
> makes me still wonder what went wrong during the discussion that made us
> not to pay attention to that. This is the more reason why I will always be
> against anything with majority in it as a way of making decisions within
> the groups!
>
> Regards
>
> > · Section 22.4(b), IANA Budget, says: “At least 45 days prior to
> the commencement of each fiscal year, ICANN shall prepare and submit to the
> Board a proposed annual budget of ICANN for direct costs for ICANN’s IANA
> department, all costs for PTI, direct costs for shared resources between
> ICANN and PTI and support functions provided by ICANN to PTI and ICANN’s
> IANA department for the next fiscal year (the “IANA Budget”), which shall
> be posted on the Website.”
> >
> > o The recommendation of DT-O regarding the IANA Budget was that it be
> approved prior to approval of the ICANN Budget.
> >
> > o DT-O’s recommendation was made prior to any knowledge that a change
> to the Bylaws would be proposed to require submission of an ICANN Budget to
> the Board 45 days prior to the start of the applicable fiscal year.
> >
> > o I support the requirement for submission of an ICANN Budget to the
> Board 45 days prior to the start of the applicable fiscal year but believe
> that there are advantages to the IANA Budget being approved earlier than
> the ICANN Budget; having the IANA Budget approved prior to consideration of
> the final ICANN Budget will:
> >
> > § Remove any dependency of IANA services funding from approval or veto
> of the ICANN Budget
> >
> > § Allow more time for resolution of a veto of the IANA Budget
> >
> > § Provide increased confidence that IANA services will continue without
> interruption.
> >
> > o My personal recommendation would be that the IANA budget be
> submitted for Board approval with sufficient time to be approved prior to
> submission of the ICANN Budget for Board approval.
> >
> > o Note that DT-O plans to discuss this issue in its meeting on 13
> April 2016.
> >
> > · Paragraph (e) in Section 3.2 (SO/AC Director removal process)
> on page 187 of the redline version (overall page 190) requires “a
> three-quarters majority of an applicable Decisional Participant as
> determined pursuant to the internal procedures of the Applicable Decisional
> Participant for the SO/AC Director Removal Petition.
> >
> > o If the GNSO is the applicable Decisional Participant, the GNSO does
> not presently define what a ‘three-quarters majority’ is.
> >
> > o Presumably, following current threshold definitions for the GNSO
> Council, a three-quarters majority would be defined as a three-quarters
> majority of each house.
> >
> > o Is the addition of this definition considered to be an
> implementation action item for the GNSO?
> >
> > · Paragraph 1.f in Annex E, The ICANN Caretaker Budget, on page
> 208 of the redline version (overall page 211) says: “Notwithstanding any
> other principle listed above, prevents ICANN from initiating activities
> that are subject to community consideration (or for which that community
> consideration has not concluded), including without limitation, preventing
> implementation of the expenditures or undertaking the actions that were the
> subject of the ICANN Budget that was rejected by the EC and that triggered
> the need for the Caretaker ICANN Budget.”
> >
> > o This clause seems appropriate in a case where the EC rejects the
> budget because it does not support funding certain actions or thinks that
> too many funds are allocated to those actions.
> >
> > o But what about a situation in which the EC rejects the budget
> because it believes that insufficient funds are budgeted for certain
> actions? In a case like that, it might not be necessary to prevent funding
> of the actions while the dispute is resolved; in other words, it might be
> fine if the actions proceeded at the reduced funding level until a decision
> is made on increased funding, especially if taking the actions at the
> reduced funding level would not negatively impact the actions if increased
> funding was provided later.
> >
> > o I wonder whether this clause should be reworded to accommodate such
> situations; if so, then a change may also need to be made in section 2.b.v,
> Examples of expenditures that would be excluded from a Caretaker Budget:
> “the proposed expenditure that was the basis for the rejection by the EC
> that triggered the need for the Caretaker ICANN Budget.”
> >
> > · Paragraph 1.f in Annex F, IANA Caretaker Budget Principles, on
> page 211 of the redline version (overall page 214) says: “Notwithstanding
> any other principle listed above, prevents ICANN, in its responsibility to
> fund the operations of the IANA functions, from initiating activities that
> are subject to community consideration (or for which that community
> consultation has not concluded), including without limitation, preventing
> implementation of the expenditures or undertaking the actions that were the
> subject of the IANA Budget that was rejected by the EC and triggered the
> need for the Caretaker IANA Budget.”
> >
> > o This clause seems appropriate in a case where the EC rejects the
> budget because it does not support funding certain actions or thinks that
> too many funds are allocated to those actions.
> >
> > o But what about a situation in which the EC rejects the budget
> because it believes that insufficient funds are budgeted for certain
> actions? In a case like that, it might not be necessary to prevent funding
> of the actions while the dispute is resolved; in other words, it might be
> fine if the actions proceeded at the reduced funding level until a decision
> is made on increased funding, especially if taking the actions at the
> reduced funding level would not negatively impact the actions if increased
> funding was provided later.
> >
> > o I wonder whether this clause should be reworded to accommodate such
> situations; if so, then a change may also need to be made in section 2.b.v,
> Examples of expenditures that would be excluded from a Caretaker Budget:
> “the proposed expenditure that was the basis for the rejection by the EC
> that triggered the need for the Caretaker ICANN Budget.” (Note that a
> minor edit is needed: it should say Caretaker IANA Budget, not Caretaker
> ICANN Budget.)
> >
> > o Note that DT-O plans to discuss this issue in its meeting on 13
> April 2016.
> >
> > · Note that a glossary of acronyms and key terms would be a very
> useful aid for community members.
> >
> >
> >
> >
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> >
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