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

Tue Jan 26 15:22:15 UTC 2016

YES
I have serious concerns to refer to MoU for the reasons that I explained in
my eralier mail to Lawyers and further elaborated at the call CCWG Call
Regards
Kavouss


2016-01-26 15:42 GMT+01:00 Izumi Okutani <izumi at nic.ad.jp>:

> Thank you Seun. Those are indeed the key issues the ASO intended to
> address, which have been raised so far in the CCWG discussions.
>
> Izumi
>
> On 2016/01/26 23:24, Seun Ojedeji wrote:
> > This is well written version, addresses all the concern of MoU, date,
> word
> > "ratifies" vs Implements.... et all. While still capturing the current
> role
> > of ICANN.
> >
> > Thanks for providing this re-wording Izumi. Hopefully this can meet
> > everyone's/most people's requirement.
> >
> > Regards
> >
> > On Tue, Jan 26, 2016 at 2:39 PM, Izumi Okutani <izumi at nic.ad.jp> wrote:
> >
> >> 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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