[bylaws-coord] Response to draft/questions about bringing AoC Reviews into the Bylaws.

Tue Mar 22 00:20:14 UTC 2016

As rapporteur for the CCWG proposal on bringing AoC Reviews into the Bylaws, I took a stab at answering ICANN Legal’s Questions and reacting to the 18-Mar draft bylaws (section 4.6).   I’m doing this as a transactional email instead of a batch of attachments, since you already have too many attachments to deal with!

Your Q9: Section 4.6(a): Operational Standards.   Yes, it does make sense to move some AoC review details to an Operational Standards document instead of coding into the Bylaws.   But that requires us to describe a process for modifying and approving 'Operational Standards’, and we don’t have that process yet.   On our short timeline, I think its best for us to keep it simple by drafting everything in the Bylaws now, noting any elements that are good candidates to move to Operational Standards—at some point.

Q10: Section 4.6(a)( ii ):  Conflicts of Interest.   Yep, agree that we should add this requirement that Review Team members disclose any conflicts of interest.  Good catch.

Q11: Section 4.6(a)( iii ):  Defining ‘Consensus’ for review teams.   Not a good catch, actually.    We used the GAC’s present consensus rule only for GAC advice that gets the special treatment (60% rejection threshold and obligation to “try to find a mutually agreeable solution”).   This definition of consensus should not apply to review teams or PDP Working groups, etc. since their recommendations do not get the ‘special treatment’.    Please just allow review teams to set their consensus rules, just as CCWGs and PDP WG’s do today.

Q12: Section 4.6(a)( vii )(C):   Confidential disclosures to Review Teams.  You are suggesting that we replace the CCWG recommendation with a promise to develop a confidential disclosure framework.   I think your promised framework would meet the CCWG requirements.

Q13: Section 4.6(a)( iv ): Limiting costs for outside experts to budgeted amounts.   Yep, let’s put that budget limitation in there.

My other observations on the draft bylaws:

Section 4.6(a)( i ):
3rd sentence can be deleted, since review team selection is covered in 4th sentence.

5th sentence kinda misses the point of the CCWG.  We want the AC/SO chairs to be able to select additional RT members from among those nominated, in case any AC/SO nominates fewer than 3.   (up to a max of 21 RT members).    This allows additional GNSO members for reviews that are focused on gTLD issues, such as WHOIS and new gTLDs.

Section 4.6(a)( iii ) :   I think you are correct that minority reports could be attached to review team recommendations.   But the CCWG did not recommend that a 51% majority was the required threshold.   So I would not add your text regarding “majority recommendation”.

Section 4.6(a)( vii ) ( C ):  Board consideration of RT reports.  I think your text could work.

Section 4.6(e)( i ) : I like your text here.

Regards,
Steve

From: <bylaws-coord-bounces at icann.org<mailto:bylaws-coord-bounces at icann.org>> on behalf of John Jeffrey via bylaws-coord <bylaws-coord at icann.org<mailto:bylaws-coord at icann.org>>
Reply-To: "bylaws-coord at icann.org<mailto:bylaws-coord at icann.org>" <bylaws-coord at icann.org<mailto:bylaws-coord at icann.org>>, John Jeffrey <john.jeffrey at icann.org<mailto:john.jeffrey at icann.org>>
Date: Friday, March 18, 2016 at 10:58 PM
Subject: [bylaws-coord] New ICANN Bylaws Rough Draft version and accompanying documents

Dear Bylaws Coordination Group, Sidley Legal Team and Adler Legal Team,

The ICANN Legal Team submits the follow documents for Bylaws Coordination Group and legal teams to review.  We have put forth our best efforts to make changes on top of the current ICANN Bylaws to bring in the CCWG and appropriate ICG proposals.  I am sure in the 244 pages and approximately 90,000 words (including the comments and notes) that there are some errors, but we have strived to diligently draft to the intent of the proposals and recommendations.

We have provided a suite of documents below to help access the content including a full set and a redline against the current ICANN Bylaws.  We have included Breakouts re each CCWG recommendation, and we have also attempted to set out where we think there is a need for additional discussions both with the lawyers and with the Bylaws Coordination Group.

The documents below do not include the CWG Bylaws that Sidley sent to us today, or our markup of the IRP language that was included from Sidley’s updated version forwarded yesterday (although the Sidley text is included in our rough draft).

Attached please find the following documents (and a brief explanation of each):

1) Initial Rough Draft of the revised ICANN Bylaws (Word version) — incorporating suggested changes to reflect the CCWG and where appropriate ICG proposals. It is an extensive document of 244 pp. (including significant unaltered portions of the current bylaws).  Within this document, we have marked it up with guidance and color-coding on the approach we have taken to the different provisions:

a) Text highlighted in Green are provisions where the Proposals could be implemented in the Bylaws in a manner that appeared clear and not to require additional clarifications.  This was our best attempt at identifying these portions, and inclusion in green does not in any way indicate a lack of willingness to further discuss these areas.

b) Text highlighted in Yellow are provisions where the implementation of the Proposals will benefit from additional discussions among the lawyers and possibly the coordination group to confirm the intent.

c) Text highlighted in Blue are provisions that have been identified as the places were conversations among and with the coordination group will be important to make sure that the intent of the Proposals are appropriately reflected in the Bylaws.

2) A redline of the Initial Rough Draft of the revised ICANN Bylaws against the current ICANN Bylaws

3) Breakouts by Recommendation of the Rough Draft of the revised ICANN Bylaws — A series of 16 different documents setting out a recommendation by recommendation rough draft of the revised ICANN Bylaws.

4) Key Questions Document - a listing of some of the key questions for consideration by the Bylaws Coordination Group.
——

We look forward to working with all of you in the coming days and next week, to get ICANN’s Bylaws in the best form possible to effectuate these important changes.

We truly hope these views of the markups are useful and that you receive them in the spirit that they are offered… to help all of us to be able to collaborate and work through these Bylaws changes in the most effective way possible — to enable the creation of a new and stronger, community-empowered ICANN

Sincerely,

John Jeffrey
General Counsel & Secretary, ICANN
12025 Waterfront Drive, Suite 300
Los Angeles, California  90094-2536
direct dial - +1.310.301.5834
mobile - +1.310.404.6001
JJ at ICANN.org<mailto:JJ at ICANN.org>
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