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

Izumi Okutani izumi at nic.ad.jp
Tue Jan 26 14:37:12 UTC 2016


That is exactly what our intention is - trying to suggest a satisfactory solution within this week for consensus.
We still observe some concerns about reference to the ASO MoU and a number of other issues.

It was challenging not to come up with something which may appear as new, to address all substantial issues being raised.

Izumi

On 2016/01/26 23:25, Kavouss Arasteh wrote:
> Dear Oscar,
> Yes it was their proposal but I did the same proposal three weeks before
> them since in a high level text we can not refer to MoU please kindly refer
> to my intervention in the last call by which I describe all legal aspect of
> the issue.
> However, dhould we arrive at a satisfactory solution within this week with
> full consensus.I have no problem.My concerns is opening a new rounds of
> e-mail exchange
> Regards
> Kavouss
> 
> 2016-01-26 15:16 GMT+01:00 Oscar A. Robles-Garay <oscar at lacnic.net>:
> 
>> Kavouss,
>> Actually, it was a request from lawyers, to remove some external
>> references to the ASO MoU (on the numbers community part).
>> So, there is no way to remove text and keep the same meaning without
>> clarifying the remaining text.
>> Hopefully this wording is succinct enough to cover the lawyers need.
>>
>> Best,
>> Oscar Robles
>>
>>
>> On 1/26/16 10:45, Kavouss Arasteh wrote:
>>
>> Dear All,
>> I think we should avoid to further modify  the text proposed by Lawyers
>> even if it  aimed to perfectionalized the language.
>> If we attempt to modify ,we never end this business.
>> Kavouss
>>
>> 2016-01-26 14:39 GMT+01:00 Izumi Okutani <izumi at nic.ad.jp>:
>>
>>> Dear Rosemary and all,
>>>
>>>
>>> Thank you for your follow up suggestion on the text of ICANN's mission
>>> with respect to the numbers function.
>>> We had further discussions within the ASO, and would like to suggest the
>>> text below.
>>>
>>> I would be happy to explain key points at the coming call.
>>>
>>> ---
>>> Coordinates the allocation and assignment of the top-most level of
>>> Internet Protocol (“IP”) and Autonomous System (“AS”) numbers. In this
>>> role, ICANN’s Mission is:
>>>
>>> 1) to provide registration services and open access for these global
>>> number registries as requested by the Internet Engineering Task Force and
>>> the Regional Internet Registries, and
>>> 2) to facilitate the development of related global number registry
>>> policies by the affected community as agreed with the RIRs.
>>> ---
>>>
>>>
>>> Izumi
>>> on behalf of the ASO
>>>
>>> On 2016/01/21 12:05, Rosemary E. Fei wrote:
>>>> Dear CCWG ACCT Co-Chairs, Members, Participants and ICANN Staff:
>>>>
>>>> In response to our high-level concern presented in an email from Holly
>>> Gregory and me on January 19, 2016 (included below), we received an email
>>> from Izumi Okutani on behalf of the ASO proposing an alternative intended
>>> to address our concern (also included below).  We thank the ASO and Izumi
>>> for the thoughtful response.  This email responds to the ASO's proposal;
>>> please treat this as an addendum to our high-level concern.
>>>>
>>>> The ASO has proposed the following alternative language for the
>>> description of ICANN's mission with respect to the numbers function:
>>>>
>>>> Coordinates the allocation and assignment at the top-most level of
>>> Internet Protocol ("IP") and Autonomous System ("AS") numbers.  Further, it
>>> ratifies, at the global level, policies related to these IP and AS numbers
>>> and developed according to the ASO-MoU.
>>>>
>>>> We think this approach is helpful, and adequately solves the problem of
>>> referring to the MOU to define ICANN's mission.
>>>>
>>>> However, we don't understand how ICANN's mission can be to "ratify"
>>> something, so we would change "ratifes" to "implements".  To ratify implies
>>> the power to NOT ratify, and we do not understand that to be what ASO has
>>> proposed or the CCWG has agreed to.
>>>>
>>>> We are comfortable with ICANN's mission including implementation of
>>> policies developed under the MOU, understanding that those are narrow,
>>> technical policies within the ASO's expertise, which will be developed
>>> under a process the community has found appropriate to the need.
>>>>
>>>> We think the reference to the MOU needs to be more specific.
>>>>
>>>> Reflecting these comments, our high-level concern will be fully
>>> addressed if the ASO proposal is modified as follows and adopted by the
>>> CCWG:
>>>>
>>>> Coordinates the allocation and assignment at the top-most level of
>>> Internet Protocol ("IP") and Autonomous System ("AS") numbers. Further, it
>>> implements, at the global level, policies related to these IP and AS
>>> numbers and developed pursuant to the Memorandum of Understanding between
>>> ICANN and the ASO dated [most recent version date], as it may be amended
>>> from time to time in accordance with its terms.
>>>>
>>>> Rosemary and Holly
>>>>
>>>> Rosemary E. Fei
>>>> Adler & Colvin
>>>> 235 Montgomery Street, Suite 1220
>>>> San Francisco, CA 94104
>>>> 415/421-7555 (phone)
>>>> 415/421-0712 (fax)
>>>> rfei at adlercolvin.com
>>>> www.adlercolvin.com
>>>>
>>>>
>>>>
>>>> _____________________________
>>>> Adler & Colvin is a San Francisco Green Business certified by the City
>>> and County of San Francisco. Please consider the environment before you
>>> print this email.
>>>>
>>>>
>>>> ________________________________
>>>> From: Izumi Okutani
>>>> Sent: Tuesday, January 19, 2016 12:59:10 AM
>>>> To: Gregory, Holly; 'Mathieu Weill'; thomas at rickert.net<mailto:
>>> thomas at rickert.net>; León Felipe Sánchez Ambía;
>>> accountability-cross-community at icann.org<mailto:
>>> accountability-cross-community at icann.org>; acct-staff at icann.org<mailto:
>>> acct-staff at icann.org>
>>>> Cc: Sidley ICANN CCWG; Greeley, Amy E.; Grapsas, Rebecca;
>>> ICANN at adlercolvin.com<mailto:ICANN at adlercolvin.com>
>>>> Subject: Re: [CCWG-ACCT] Lawyer's High Level Review re Proposal to
>>> Refer to 2004 ASO MOU in Mission Statement (Annex 5, Third Proposal)
>>>> Dear Holly and all,
>>>>
>>>> Thank you for this analysis.
>>>>
>>>> I note the strong concern here is that with reference to the ASO about
>>> the Mission, the ICANN Mission on the number resources can be changed, with
>>> agreement between ICANN and RIRs, without going through the standard
>>> process of changes in the Bylaws.
>>>>
>>>> We had further discussions in the ASO and to address this concern, we
>>> would like to suggest the alternative text below:
>>>>
>>>> "Coordinates the allocation and assignment at the top-most level of
>>> Internet Protocol ("IP") and Autonomous System ("AS") numbers. Further, it
>>> ratifies, at the global level, policies related to these IP and AS numbers
>>> and developed according to the ASO-MoU."
>>>>
>>>>  - While it still appears to reference the ASO MoU, the important
>>> difference from the previous text is that it is *not referenced to describe
>>> ICANN's Mission*.
>>>>
>>>>  - What it basically says is that ICANN's Mission on the number
>>> resources is to ratify global policies according to the ASO MoU.
>>>>    i.e., If there are changes ICANN's Mission in its relation to
>>> ratification of global policies, expansion of its Mission, or deleting this
>>> part of the Mission, it will need to go through the standard process of the
>>> changes in the Bylaws. It will not change, expand or remove ICANN's Mission
>>> without the agreed process proposed in the CCWG, just like any other parts
>>> of the Mission Statement.
>>>>
>>>>  - Given the reference to the ASO MoU on the alternative text is
>>> limited to the ratification of global policies, even if the MoU can be
>>> changed based on agreement between ICANN and RIRs (as it is today), the
>>> scope of change is limited to how ICANN ratifies the global policies on the
>>> number resources.
>>>>
>>>>  - Until today, the ratification of global number resources policies
>>> has been based on agreement between ICANN and RIRs per what is described in
>>> the ASO MoU, which does not affect the wider ICANN communities outside the
>>> ASO.
>>>>
>>>> Izumi
>>>>
>>>> On 2016/01/19 5:27, 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<mailto:
>>> holly.gregory at sidley.com%3cmailto:holly.gregory at sidley.com>>
>>>>>
>>>>>
>>>>>
>>>>>
>>>>>
>>>>>
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>>>>>
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>>>>>
>>>>>
>>>>>
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>>>>>
>>>>
>>>>
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