[CCWG-ACCT] Lawyer's High Level Review re Mission (Recommendation 5) Slides

Gregory, Holly holly.gregory at sidley.com
Mon Jan 18 20:03:27 UTC 2016

Dear CCWG ACCT Co-Chairs, Members, Participants and ICANN Staff,

We are writing to provide our very high level reactions to the slides on Mission (Recommendation 5) that were forwarded to us today by ICANN staff.  (For ease of reference we have attached a copy of the slides that we have reviewed today.)

We have 2 primary concerns or caveats that we raise now primarily to help make sure that expectations about what can be resolved in the drafting stage are realistic.

1)  A common challenge in drafting Bylaws is determining what matters to try and nail down with exactitude and when to rely on general principles for interpretation in light of specific context by a reviewing body and the opportunity to revise the Bylaws further in the future if additional clarification is needed.    We understand that the CCWG expects that the Bylaws drafters will be able to devise language that precisely, comprehensively, and unambiguously defines ICANN’s mission in a manner that reconciles the CCWG’s disparate views on content regulation versus contract enforceability, involuntary versus voluntary PICs, consumer trust  and other matters of debate, leaving little if any room for misunderstanding.  We think this expectation is not realistic.  Based on our observation of the CCWG’s discussions, even if the CCWG is eventually able to agree on the line between what is in and outside ICANN’s mission conceptually, we do not believe drafting to that level of precision is possible.  Anything we draft will, inevitably, leave room for conflicting interpretations due to the nature of language; the more we provide detailed rules and examples to reduce the areas requiring interpretation, the longer, more cumbersome, and less user-friendly the text will become.  Ironically, efforts to address issues in greater detail may even create more opportunities for misinterpretation and loopholes.

For clients facing similar dilemmas, a common approach is to draft general principles into governing documents and provide a mechanism for interpreting them in specific situations.  We recommend that the CCWG agree upon and articulate mission principles at a general  level appropriate for inclusion in the Bylaws, understanding that refinement and interpretation will be needed thereafter.  If a party is materially affected by an ICANN determination that a PIC is outside (or within) the scope of ICANN’s mission, that party may challenge, via an IRP, the decision on the basis that ICANN has acted inconsistently with its Bylaws. The IRP panel’s decision will inform how the Bylaws are interpreted from that point onward. If the community disagrees with the IRP panel’s decision, it can further amend the mission through the Fundamental Bylaws amendment procedure; the community could also develop a mechanism other than the IRP specifically to review mission compliance of proposed PICs, if desired.

2)  We note that, while the CCWG has accepted the concept of grandfathering some PICs, it has not yet clearly defined what it means by “grandfathering” PICs.  We will need answers to the following questions in order to draft appropriate Bylaws:

a)  What is the effective cut-off date for the grandfathering?  This could be a specified date in the future, or could be an event, such as the date of adoption of the relevant Fundamental Bylaw.

b)  Should RAs that are in the process of being put in place but have not yet been finalized and signed as of the effective date, be included or excluded?  If that should depend on how far along in the process they are, what should be the standard for deciding that point?

c)  Should renewals of existing RAs, unchanged, that contain PICs covered by the grandfathering clause, be included?  If so, should there be a limit on the number of renewals that will be covered?  Should grandfathering cover PICs that are not modified, even though other provisions of the agreement are changed?

d)  What if an existing RA/RAA includes a grandfathered PIC, and the agreement is modified, by mutual agreement or otherwise -- is it still grandfathered?

e)  Should all grandfathering have a sunset date, i.e., a point far enough in the future on which all grandfathering protection will expire?

We look forward to addressing these high-level issues with you and the CCWG in whatever manner is deemed most appropriate.

We also have a question regarding the following language  on Slide 2 of the deck:  “ GAC/ALAC – seeks legal opinion on (i) constraints on Board’s
ability to act on GAC advice and (ii) continuing ability to impose and enforce PICs and other “negotiated” registry provisions”    We believe that we have already provided our response to (i).  We do not recall that (ii) has been certified to us.  We ask that the Co-Chairs and Staff please confirm.

One other minor point:  We note that on Slide 9 of the deck, the word “mission” has been replaced with “scope” in proposed Bylaw language.  We think that “purpose” is a better word to use in this context.

Once the content of the Mission Slides is incorporated into the relevant Recommendation and Annex we will review again for more detailed  suggestions.

Holly and Rosemary

Partner and Co-Chair
Global Corporate Governance & Executive Compensation Practice

Sidley Austin LLP
+1 212 839 5853
holly.gregory at sidley.com<mailto:holly.gregory at sidley.com>

From: Mathieu Weill [mailto:mathieu.weill at afnic.fr]
Sent: Monday, January 18, 2016 2:02 PM
To: Gregory, Holly; acct-staff at icann.org
Cc: thomas at rickert.net; León Felipe Sánchez Ambía; Sidley ICANN CCWG; ICANN at adlercolvin.com; Grapsas, Rebecca
Subject: RE: AGENDA - Call #78

Dear Holly,

Despite the two previous discussions, we are I’m afraid not yet at the point of having a draft on this one. Your high level comments on the 3rd report might be useful however. Maybe that could help us make progress on this complex issue.

De : Gregory, Holly [mailto:holly.gregory at sidley.com]
Envoyé : lundi 18 janvier 2016 17:12
À : acct-staff at icann.org<mailto:acct-staff at icann.org>
Cc : mathieu.weill at afnic.fr<mailto:mathieu.weill at afnic.fr>; thomas at rickert.net<mailto:thomas at rickert.net>; León Felipe Sánchez Ambía; Sidley ICANN CCWG; ICANN at adlercolvin.com<mailto:ICANN at adlercolvin.com>; Grapsas, Rebecca
Objet : AGENDA - Call #78

For the third reading of Recommendation 5, Annex 5,- Mission Statement -  we are having difficulty  finding the draft we are to review.  Any assistance in providing us with the correct draft for review is greatly appreciated.  Holly

Partner and Co-Chair
Global Corporate Governance & Executive Compensation Practice

Sidley Austin LLP
+1 212 839 5853
holly.gregory at sidley.com<mailto:holly.gregory at sidley.com>

From: accountability-cross-community-bounces at icann.orgOn<mailto:accountability-cross-community-bounces at icann.orgOn> Behalf OfAlice Jansen
Sent: Friday, January 15, 2016 9:36:37 AM (UTC-08:00) Pacific Time (US & Canada)
To: accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>
Subject: [CCWG-ACCT] AGENDA - Call #78
Dear all,

In anticipation of your call #78 – Tuesday, 19 January 2016 - 12:00-15:00 UTC - (time converter<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.timeanddate.com_worldclock_fixedtime.html-3Fmsg-3DCCWG-2BACCT-2BMeeting-26iso-3D20160119T12-26p1-3D1440-26ah-3D3&d=CwMF-g&c=Od00qP2XTg0tXf_H69-T2w&r=AKn_gzAS4ANpCEqx2GjPwjUkqYPHaN7m0NQNyfQXAgk&m=SYkaiEp9fgl1luJDvf7UGYFG5_mtc4Ei7vj8Ti5VjzM&s=42yVxrrxgfn-2JeYz1eNqaNKibvb95sXJ8qk5FlqQ68&e=>), please find below a proposed agenda:

1. Welcome, roll call, SoI (2 min)
2. Rec 7 – Scope of IRP- Second reading (20 min) - Note: Becky will be sending the first reading conclusions document
3. Rec 6 – Human Rights – Second reading (30 min) - see http://mm.icann.org/pipermail/accountability-cross-community/2016-January/009642.html<https://urldefense.proofpoint.com/v2/url?u=http-3A__mm.icann.org_pipermail_accountability-2Dcross-2Dcommunity_2016-2DJanuary_009642.html&d=CwMF-g&c=Od00qP2XTg0tXf_H69-T2w&r=AKn_gzAS4ANpCEqx2GjPwjUkqYPHaN7m0NQNyfQXAgk&m=SYkaiEp9fgl1luJDvf7UGYFG5_mtc4Ei7vj8Ti5VjzM&s=amzby7qrNCDWUcOc6jyhNP8OPIEGlVjN9nuTJZuv6kM&e=>
4. Rec 4 – Board removal liability mitigation – Third reading (10 min) - see http://mm.icann.org/pipermail/accountability-cross-community/2016-January/009645.html<https://urldefense.proofpoint.com/v2/url?u=http-3A__mm.icann.org_pipermail_accountability-2Dcross-2Dcommunity_2016-2DJanuary_009645.html&d=CwMF-g&c=Od00qP2XTg0tXf_H69-T2w&r=AKn_gzAS4ANpCEqx2GjPwjUkqYPHaN7m0NQNyfQXAgk&m=SYkaiEp9fgl1luJDvf7UGYFG5_mtc4Ei7vj8Ti5VjzM&s=pVyTYwu_EDz_AUScQBhxSHj9s_nM1LQi3ffyZYpRKeM&e=>
5. Rec 9 – AOC reviews (30 min) - First reading – see http://mm.icann.org/pipermail/accountability-cross-community/2016-January/009644.html<https://urldefense.proofpoint.com/v2/url?u=http-3A__mm.icann.org_pipermail_accountability-2Dcross-2Dcommunity_2016-2DJanuary_009644.html&d=CwMF-g&c=Od00qP2XTg0tXf_H69-T2w&r=AKn_gzAS4ANpCEqx2GjPwjUkqYPHaN7m0NQNyfQXAgk&m=SYkaiEp9fgl1luJDvf7UGYFG5_mtc4Ei7vj8Ti5VjzM&s=ecUcX5lTFQVz_syvKvUBZDISrPK3kU0x2Fc6qDEZ6E8&e=>
Break (10 min)
6. Rec 5 – Mission Statement (45 min) - Third reading - Note: Becky will be sending an update
7. Rec 11 – GAC Advice – First reading (45 min) - see http://mm.icann.org/pipermail/accountability-cross-community/2016-January/009646.html<https://urldefense.proofpoint.com/v2/url?u=http-3A__mm.icann.org_pipermail_accountability-2Dcross-2Dcommunity_2016-2DJanuary_009646.html&d=CwMF-g&c=Od00qP2XTg0tXf_H69-T2w&r=AKn_gzAS4ANpCEqx2GjPwjUkqYPHaN7m0NQNyfQXAgk&m=SYkaiEp9fgl1luJDvf7UGYFG5_mtc4Ei7vj8Ti5VjzM&s=gXIsgS9NSc0xdAMiRADIRG3p1f-YOHy2yX_o3tckWrE&e=>
8. A.O.B (3 min)

As a reminder, all documents can be found on the wiki at: https://community.icann.org/display/acctcrosscomm/Final+Report<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_display_acctcrosscomm_Final-2BReport&d=CwMF-g&c=Od00qP2XTg0tXf_H69-T2w&r=AKn_gzAS4ANpCEqx2GjPwjUkqYPHaN7m0NQNyfQXAgk&m=SYkaiEp9fgl1luJDvf7UGYFG5_mtc4Ei7vj8Ti5VjzM&s=jhKDO7lNcH6MjsD6ZzKosb08bZIQwYrXXnOJczXamRc&e=>

Link to Adobe Connect: https://icann.adobeconnect.com/accountability<https://urldefense.proofpoint.com/v2/url?u=https-3A__icann.adobeconnect.com_accountability&d=CwMF-g&c=Od00qP2XTg0tXf_H69-T2w&r=AKn_gzAS4ANpCEqx2GjPwjUkqYPHaN7m0NQNyfQXAgk&m=SYkaiEp9fgl1luJDvf7UGYFG5_mtc4Ei7vj8Ti5VjzM&s=9eGg8Xk_ec4pWa0qwlq5fWa5wgH0ORzTxrl1MMNmyg0&e=>/


Best regards


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