[WP1] Section 3B.4, on whether ICANN principal office location (Article 1XVIII) should be a Fundamental Bylaw

[Steve DelBianco]

On Wednesday's WP1 call, I was assigned to revise our proposed text on whether Existing ICANN Bylaws Article 18 should be a Fundamental Bylaw.  Article 18 is the existing ICANN bylaws requirement regarding location of headquarters.

Attached and below is my re-draft of this section, for inclusion in this weekend’s FREEZE document.  Note that the  text highlighted in yellow includes an important statement for our lawyers to confirm.   If changes to ICANN Articles of Incorporation require affirmative approval of the Sole Member, then it would require affirmative community approval for ICANN to change its present status as a California Nonprofit Public Benefit Corporation.

Re-draft of Section 3B.5:


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The first CCWG draft proposal included an explanation and question about whether existing ICANN bylaws requirement regarding location of headquarters should be a Fundamental Bylaw.


To summarize the explanation, we described Affirmation of Commitments paragraph 8(b), where “ICANN affirms its commitments to: (b) remain a not for profit corporation, headquartered in the United States of America with offices around the world to meet the needs of a global community …”


The nonprofit commitment in 8b is already reflected in ICANN’s ARTICLES OF INCORPORATION:

a.     “3. This Corporation is a nonprofit public benefit corporation and is not organized for the private gain of any person. It is organized under the California Nonprofit Public Benefit Corporation Law for charitable and public purposes. "



A change to the Articles of Incorporation would require 2/3 vote of the Board and 2/3 vote of the Community Mechanism as Sole Member.   [LEGAL TO CONFIRM]



The ‘headquartered” commitment in 8b is already in current ICANN Bylaws, at Article XVIII Section 1:

b.    “OFFICES.   The principal office for the transaction of the business of ICANN shall be in the County of Los Angeles, State of California, United States of America. ICANN may also have an additional office or offices within or outside the United States of America as it may from time to time establish.”



While the Board could propose a change to this Bylaws provision, the Community Mechanism as Sole Member could block the proposed change with a 75% voting threshold.



In its 3-May-2015 draft, the CCWG-Accountability asked commenters whether Bylaws Article XVIII Section 1 should keep its current status as a regular Bylaw, or be designated as a “Fundamental Bylaw”. In the latter case, any Bylaws change would require approval by 75% vote of the Community Mechanism as Sole Member.


Three considerations suggest that CCWG not propose Article XVIII be designated as a Fundamental Bylaw:


First, public comment on the first draft was evenly split on the question of whether to designate Article XVIII a Fundamental Bylaw.  Governments were among those expressing strong opposition.


Second, the Community Mechanism as Sole Member must approve with 2/3 vote any change to ICANN’s Articles of Incorporation, which now state that ICANN is a California Nonprofit Public Benefit Corporation.


Third, the Community Mechanism as Sole Member could block any proposed change to ICANN Bylaws Article XVIII, which states “The principal office for the transaction of the business of ICANN shall be in the County of Los Angeles, State of California”



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