[CWG-Stewardship] FW: [client com] Chuck Gomes Comments

Fri Apr 15 15:09:43 UTC 2016

+1 and I actually think such glossary could be helpful if provided before
the PC.

Cheers!

Sent from my LG G4
Kindly excuse brevity and typos
On 15 Apr 2016 3:21 p.m., "Gomes, Chuck" <cgomes at verisign.com> wrote:

> Regarding the last Sidley comment on the possibility of a glossary and in
> particular staff’s concern that there is not enough time:
>
> ·         The glossary would not have to be part of the Bylaws but could
> simply be a supplemental resource.
>
> ·         Public input is good to have but that can happen after a draft
> glossary is posted.
>
>
>
> Chuck
>
>
>
> *From:* cwg-stewardship-bounces at icann.org [mailto:
> cwg-stewardship-bounces at icann.org] *On Behalf Of *Jonathan Robinson
> *Sent:* Friday, April 15, 2016 2:08 AM
> *To:* cwg-stewardship at icann.org
> *Subject:* [CWG-Stewardship] FW: [client com] Chuck Gomes Comments
>
>
>
> All,
>
>
>
> FYI.
>
>
>
> Jonathan
>
>
>
> *From:* Flanagan, Sharon [mailto:sflanagan at sidley.com
> <sflanagan at sidley.com>]
> *Sent:* 14 April 2016 16:05
> *To:* Client Committee <cwg-client at icann.org>
> *Subject:* [client com] Chuck Gomes Comments
>
>
>
> Dear All,
>
>
>
> Chuck’s comments were forwarded to us and our notes and responses are
> below.
>
>
>
> Best regards,
>
> Sharon
>
>
>
> > 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.
>
> [Sidley comment: We are adding “as defined in Section ___” where defined
> terms are used before they have been defined.]
>
> >
> > ·         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
>
> [Sidley comment: “Decisional Participants” is defined in Article 6,
> Section 6.1(a).]
>
> > ·         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.
>
> [Sidley comment: Edits have not been made to the provision requiring one
> delegate of the NomCom to be “from consumer and civil society groups,
> selected by the Non-Commercial Users Constituency” other than to renumber
> that subsection (Section 8.2(g)(vi)); NomCom composition was not discussed
> in the CCWG Proposal.]
>
> > ·         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
>
> [Sidley comment: ICANN will elect *all* directors of PTI in its capacity
> as the sole member of PTI; ICANN will be instructed in the PTI governing
> documents on *how* to vote with respect to PTI director elections (i.e.,
> the allocation of directors on the PTI Board between independent directors
> and employees of ICANN or employees of PTI); any amendment of the
> provisions in the PTI governing documents relating to PTI Board composition
> could be rejected by the EC pursuant to Section 16.2(c)(vii)).]
>
> > ·         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. [Sidley comment: Section 18.7(c) requiring each IFRT to include two
> representatives appointed by the Registries Stakeholder Group is consistent
> with the CWG Proposal, Paragraph 283.]
> >
> > 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. [Sidley comment: Section 19.5(a)(iii)
> requiring each SCWG to include three representatives appointed by the
> Registries Stakeholder Group is consistent with the CWG Proposal, Paragraph
> 393.]
> >
> > 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.
>
> 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: [Sidley comment: This proposed change to be
> discussed with ICANN once CWG signs off on the relevant provisions.]
> >
> > §  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?
> >
>
> [Sidley comment: Our understanding is that this will form part of
> implementation for the GSNO, along with other procedures to be adopted by
> the Decisional Participants.]
>
>
> > ·         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.” [Sidley comment: We defer to
> CWG on this since the caretaker budgets are not specified in detail in the
> proposals.]
> >
> > 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.” [Sidley comment: We defer to CWG on
> this since the caretaker budgets are not specified in detail in the
> proposals.]
> >
> > 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. [Sidley comment: This has been
> recommended to ICANN but there are concerns that there is insufficient time
> to develop such a list and gather feedback.]
> >
>
>
>
>
>
> *SHARON R. FLANAGAN*
>
>
> *SIDLEY AUSTIN LLP*
> 555 California Street
> Suite 2000
> San Francisco, CA 94104
> +1 415 772 1271
> sflanagan at sidley.com
> www.sidley.com
>
> *[image: SIDLEY]*
>
>
>
>
>
>
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