[CCWG-ACCT] TR: [bylaws-coord] Clarification of today's directions and Questions for Tomorrow

Tue Apr 12 06:48:58 UTC 2016

Dear Colleagues,

Forwarding a couple of follow up clarifications requested by our lawyers. To 
be discussed during our call in a few hours.

De : bylaws-coord-bounces at icann.org [mailto:bylaws-coord-bounces at icann.org] 
De la part de Gregory, Holly via bylaws-coord
Envoyé : mardi 12 avril 2016 01:02
À : Bernard Turcotte; bylaws-coord at icann.org
Cc : Sidley ICANN CCWG; ICANN at adlercolvin.com
Objet : [bylaws-coord] Clarification of today's directions and Questions for 
Tomorrow

We eagerly await the certified instructions from today’s call.  Please be 
sure to clarify treatment of the question regarding HR FOI Section 27.3.  We 
understand that the Human Rights provision is to be moved from the 
transitional bylaws into the Core Values section, but we are unclear as to 
the outcome of the issues raised by Ed and David regarding enforcement.

For Discussion

A.  On the call today the CCWG agreed to include in the bylaw language the 
phrase “the root zone of” in Article 1, Section 1.1.a.i

The remaining open issue on this question is whether “root zone” needs to be 
defined, as highlighted in yellow below from the original question:

1.  The latest draft text for Article 1, Section 1.1.a.i describes ICANN’s 
naming mission as follows: “Coordinates the allocation and assignment of 
names in the Domain Name System …” This text differs from the conceptual 
language proposed in Annex 05 – Recommendation #5, which read as follows: 
“Coordinates the allocation and assignment of names in the root zone of the 
Domain Name System ….”  The words “the root zone of” do not appear in the 
current ICANN Bylaws, which states that ICANN “Coordinates the allocation 
and assignment of […] Domain names” (without any qualifier or limitation to 
“the root zone of”).  It is not true that ICANN coordinates assignment ONLY 
in the root zone, as such term is currently understood.  ICANN’s gTLD 
registry and registrar agreements and policies deal substantially and 
primarily with issues relating to assignment of names at the second (and in 
some cases lower) levels of the DNS. If in the root zone is currently 
intended to include the second level, that should be clarified in the use of 
the term. For example, the UDRP, the Inter-Registrar Transfer Policy, and 
the Expired Registration Recovery Policy are all ICANN policies relating to 
second-level gTLD registrations 
<https://www.icann.org/resources/pages/registrars/consensus-policies-en>. Do 
we need to define the term “root zone” to include the second level or remove 
the words? [On April 5, CCWG directed us to remove the words; on April 11 
this position was reversed, so now we need to know whether root zone should 
be defined.]

B.  You have asked us for clarification of Question 7 regarding the Interim 
Board.

Our original question was as follows:

7. The CCWG proposal was silent on how the Interim Board is to consult with 
the community to make major decisions. We have included a suggestion that 
the Interim Board shall “(a) consult with the chairs of the Supporting 
Organizations and Advisory Committees before making major decisions (as if 
such action were a Rejection Action [as defined in Annex D]) and (b) consult 
through a community forum (in a manner consistent with the process for a 
Rejection Action Community Forum pursuant to Section [_] of Annex D)” prior 
to taking the action. Are these the right processes?

CCWG Response:

Agreed with Option a)

REQUESTED FURTHER CLARIFICATION:

The Proposal, in Annex 4, Paragraph 98, provides as follows:

The ICANN Bylaws will state that, except in circumstances of where urgent 
decisions are needed to protect the security, stability and resilience of 
the DNS, the Interim Board will consult with the community through the SO 
and AC leaderships before making major decisions.  Where relevant, the 
Interim Board will also consult through the ICANN Community Forum before 
taking any action that would mean a material change in ICANN’s strategy, 
policies or management, including replacement of the serving President and 
CEO.

Our original request for clarification was not intended to present a choice 
between two options (as was apparently misunderstood), but rather to seek 
the CCWG’s confirmation that the Interim Board’s consultation with SO and AC 
leadership would follow the same procedures as a Rejection Action, and that, 
similarly, the Community Forum consultation would follow the same procedures 
as a Rejection Action Community Forum.

Based on the CCWG response to our original Question 7, it appears that the 
CCWG wishes to modify the Proposal by eliminating the Interim Board 
community forum consultation requirement.  Please confirm that you are 
giving direction for us to modify the Proposal or revise the answer above to 
read:  “We confirm the Interim Board shall “(a) consult with the chairs of 
the Supporting Organizations and Advisory Committees before making major 
decisions (as if such action were a Rejection Action [as defined in Annex 
D]) and (b) consult through a community forum (in a manner consistent with 
the process for a Rejection Action Community Forum pursuant to Section [_] 
of Annex D)” prior to taking the action.”

HOLLY J. GREGORY
Partner and Co-Chair, Global Corporate Governance & Executive Compensation 
Practice

SIDLEY AUSTIN LLP
787 Seventh Avenue
New York, NY 10019
+1 212 839 5853
holly.gregory at sidley.com
 <http://www.sidley.com> www.sidley.com

Description : Image supprimée par l'expéditeur. SIDLEY

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