[CCWG-ACCT] Lawyer's High Level Review re Proposal to Refer to 2004 ASO MOU in Mission Statement (Annex 5, Third Proposal)

[Avri Doria]

Hi,

I have a question. 

The current bylaws contain provisions for GNSO Operating Procedures

> X.3.4. The GNSO Council is responsible for managing the policy
> development process of the GNSO. It shall adopt such procedures (the
> "GNSO Operating Procedures") as it sees fit to carry out that
> responsibility, provided that such procedures are approved by a
> majority vote of each House. The GNSO Operating Procedures shall be
> effective upon the expiration of a twenty-one (21) day public comment
> period, and shall be subject to Board oversight and review

Understanding that this is somewhat a different case than the ASO MOU,
is it possible to do something that points to the current MOU and
includes the condition under which the referenced MOU changes?

avri


On 18-Jan-16 15:27, Gregory, Holly wrote:
>
> Dear CCWG ACCT Co-Chairs, Members, Participants and ICANN Staff,  
>
>  
>
> We are writing to raise with you a high-level concern regarding the
> proposal to reference the 2004 Address Supporting Organization MOU
> (the “MOU”) in ICANN’s Mission Statement (Bylaws Article I, Section
> 1), which was discussed on CCWG-ACCT Call #77 (January 14).
>
> In defining ICANN’s role in coordinating allocation and assignment at
> the top-most level of IP and AS numbers, Annex 05 from the Third
> Proposal provided as follows: “ICANN’s Mission is described in the ASO
> MoU between ICANN and RIRs.”
>
> /We //recommend against trying to further define ICANN’s Mission
> through cross-reference to the MOU in the Bylaws and suggest that any
> specific language that you deem of critical import to defining ICANN’s
> Mission be actually incorporated.  (We could not find a clear
> statement of the ICANN Mission in the MOU.)/
>
> As a general matter, referencing all or part of an external agreement
> in bylaws presents a number of problems.  For example:
>
>  
>
> ·         The bylaws may require a different process, parties, and
> threshold for amendment than the referenced agreement, and it is
> unclear legally which rules apply.  This problem is certainly present
> here.  Although the Mission will be a fundamental bylaw, the parties
> to the MOU could amend it on their own, circumventing the fundamental
> bylaw amendment process entirely.  Alternatively, perhaps the MOU’s
> amendment provisions would be superceded by the fundamental bylaw
> amendment process.  At a minimum, if the reference remains despite our
> advice, this issue should be addressed explicitly.
>
>  
>
> ·         Referencing an outside agreement in bylaws may have the
> legal effect of incorporating it into the bylaws, putting all its
> terms on an equal footing with the bylaws, which can create problems
> if its provisions conflict with the bylaws in any way.  This issue has
> a greater chance of arising  where an entire agreement is incorporated
> by reference, and is clearly a problem here.  For example, ICANN’s
> Bylaws are ultimately governed by California law, but the MOU provides
> that it will be governed by International Chamber of Commerce rules in
> Bermuda.  Again, if the reference remains despite our advice, the CCWG
> should decide which document governs in case of conflict (either
> generally or on a topic-by-topic basis).
>
> ·         Although we generally recommend against it, clients have
> insisted on incorporating an entire existing agreement in their
> governing documents, essentially freezing the agreement as
> incorporated.  It was suggested on the CCWG call that the Bylaws could
> reference the version of the MOU as of a specific date, excluding from
> the Bylaws future amendments to the MOU unless the community amended
> the Bylaws to update the reference in the Mission.  While this
> strategy partially solves one problem, it leads to others.  Assuming
> that the MOU incorporated in the Bylaws continues to evolve over time
> outside of the Bylaws, there will be two versions of the MOU -- the
> one in the Bylaws, and the one that documents the current
> understandings between the ASO and ICANN.  At a minimum, this would be
> confusing; in a worst-case scenario, it could undermine the
> enforceability of the post-reference MOU.
>
>  
>
> ·         Any outside agreement to be referenced in bylaws must be
> carefully reviewed to assess and address the sorts of consequences
> noted above.  We have briefly reviewed a version of the MOU, and note
> that the MOU itself incorporates other documents by reference,
> including the earlier 2003 version of the ICANN Bylaws, creating a
> circularity in terms of providing legal advice on this provision in
> the future.
>
>  
>
> While we originally thought it might be possible to work around these
> problems by inserting text from the MOU into the Bylaws describing
> this aspect of ICANN’s Mission, after our brief review of the MOU, it
> is not clear to us where or how it describes ICANN’s mission in any
> narrative text.  As we read it the MOU sets out processes and
> mechanisms for developing policies but does not itself describe
> substantive limits on ICANN or purport to define ICANN’s Mission. 
>
>  
>
> Bylaws may of course include a process for developing a scope of
> corporate activities within the bounds of a larger mission, and the
> mission can be updated as appropriate to reflect developments that
> come out of this process, but the process itself cannot logically
> become part of the mission.
>
>  
>
> We hope further CCWG discussion in light of our concern, regarding the
> goal that the ASO and the community seek by referencing the MOU in the
> Mission Statement, may provide a way forward without referencing the
> MOU itself in the Bylaws.
>
>  
>
> Holly and Rosemary
>
>  
>
>  
>
> *HOLLY J. GREGORY*
> 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>
>
>  
>
>  
>
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