[CWG-Stewardship] [client com] CWG Comment Letter - PTI Bylaws
avri doria
avri at apc.org
Tue Aug 9 19:05:30 UTC 2016
Hi,
I also do not support the objection.
I think the comments were, heard, understood and responded to. I accept
the explanation both as it refers to:
- allowing the RIRs to define how they make decisions. As I understand
it, this requirement for unanimity is central to their notions of how
they cooperate.
- the use of the phrase"joint and several." In fact I am sure my partner
have I have signed a few things, such as insurance agreements and
ownership papers that use this very construction.
I also continue to support the proposal that our co-chairs, who have led
us with great neutrality, in the initial PTI Director spots. The Nomcom
is not set up to make a rapid appointment in this matter. I have no
impression that they are trying o hurry separation, but rather that they
are adhering to the principle of separability as decided by the group.
avri
On 09-Aug-16 14:41, Allan MacGillivray wrote:
>
> Let me echo Matthew’s comment by saying that I support Chuck and Greg
> and do not support the objection.
>
>
>
> Allan
>
>
>
> *From:*cwg-stewardship-bounces at icann.org
> [mailto:cwg-stewardship-bounces at icann.org] *On Behalf Of *matthew shears
> *Sent:* August-09-16 2:37 PM
> *To:* Gomes, Chuck; Greg Shatan; Christopher Wilkinson
> *Cc:* cwg-stewardship at icann.org IANA
> *Subject:* Re: [CWG-Stewardship] [client com] CWG Comment Letter - PTI
> Bylaws
>
>
>
> + 1 Chuck and Greg. In response to your question Chuck - no, I do not
> support the objection.
>
> Matthew
>
> On 09/08/2016 19:30, Gomes, Chuck wrote:
>
> + 1 Greg, noting of course that I am probably classified as one of
> the “few very interested stakeholders”. Actually, I think most of
> us or ‘very interested stakeholders’ or we wouldn’t have spent
> such inordinate amounts of time for the last nearly two years.
>
>
>
> My question of the WG is this: is this a one-off objection or is
> there support from others in the CWG for it?
>
>
>
>
> It is very disturbing that this objection is coming at this late
> time regardless of whether it was expressed previously or not.
> Unless I missed something, there was no significant objection in
> the CWG to seating Lise and Jonathan on the PTI Board initially.
> If I am correct, this seems like a case of someone trying to get
> another bite at the apple when they failed previously.
>
>
> p
>
> I fully respect Christopher’s opinion and his right to express it
> but I strongly disagree with it, especially at this terribly late
> stage in the process.
>
>
>
> Chuck
>
>
>
>
>
> *From:*cwg-stewardship-bounces at icann.org
> <mailto:cwg-stewardship-bounces at icann.org>
> [mailto:cwg-stewardship-bounces at icann.org] *On Behalf Of *Greg Shatan
> *Sent:* Tuesday, August 09, 2016 2:04 PM
> *To:* Christopher Wilkinson
> *Cc:* cwg-stewardship at icann.org <mailto:cwg-stewardship at icann.org>
> IANA
> *Subject:* Re: [CWG-Stewardship] [client com] CWG Comment Letter -
> PTI Bylaws
>
>
>
> A few brief thoughts in response.
>
>
>
> 1. Don't let the perfect be the enemy of the good. PTI is a
> necessary element of the transaction and the Board is a element of
> the transition. What's suggested here would pull the entire
> Transition over to the side, at least until some workaround was
> developed. Initial Directors are commonplace in setting up new
> corporations. I trust that Jonathan and Lise, both with
> significant experience in senior management and board matters,
> will withstand whatever apocryphal pressure might be put upon them.
>
>
>
> 2. I'm not sure what a "very interested stakeholder" is. If this
> means a very dedicated stakeholder, who is very interested in
> assisting the community in achieving its goals and who will work
> on these matters in spite of personal and professional interests
> in doing other things, I'll admit to that. If this means someone
> who is operating in this CWG at the behest of "special interests"
> and whose actions are designed to advancing the undisclosed goals
> of those special interests, I categorically reject and resent
> that. (The latter description might apply to others, and that's
> reasonable; it's just not my position, and if you are referring to
> others, then I withdraw my sense of umbrage.)
>
>
>
> 3. Personally, I don't have any particular affinity for the PTI
> solution, and I was opposed to removing the IANA IPR from ICANN.
> Both of these were supported by the consensus of this group, as
> was the overall concept of enhancing "separability." On the
> latter point, I could have chosen to sulk and withdraw (or insist
> I was right long after it became an annoyance to the group). I
> chose neither; rather, I pitched in and worked on accomplishing
> the CWG's chosen goal to the best of my ability. I felt this was
> and is the right approach as a good community member and
> "multistakeholder." I won't speak for CWG counsel, but any
> counsel's role is to advise and caution on risks and concerns, and
> when the path is chosen, to assist the client in seeing it
> through. The fact that CWG's counsel is facilitating the chosen
> approach of the CWG is manifestly unexceptional; anything other
> than that would be peculiar, to say the least. Finally, to see in
> this some grand and concerted plan to dismantle ICANN (as the
> IANA) seems rather hypervigilant, to say the least. If someone
> has such a grand plan, I'm no better than a "useful idiot" in that
> regard. I wouldn't discount it entirely as someone's plan or goal
> (and I have had my own musings on that front, without naming
> names), but I do not ascribe it to some larger group (and
> certainly not any group of which I am a part).
>
>
>
> 4. The fact that legal documents (Bylaws, Articles of
> Incorporation, Agreements) contain legal language should not be
> shocking. "Legalese" is often a pejorative term, and I avoid it
> here to avoid misinterpretation. These documents are in fact
> necessary to implement the transition as designed. If anyone
> finds the documents "impenetrable" in whole or in part, I'm sure
> that Sidley would be more than happy to walk through the documents
> line by line and explain them all to you (at their usual hourly
> rate). (I might volunteer to do the same, but I've learned
> repeatedly that some who need such assistance are reject advice
> from a "participant" out of fear that the participant is "very
> interested" and thus would manipulate their explanations to serve
> some unseen agenda or master.)
>
>
>
> 5. At the risk of repeating myself, the idea of a simple
> transition, with no separability or designed-in anticipation of
> separation, was rejected in this group a long time ago, and after
> months of arduous discussion. I have not heard widespread
> discontent with that choice. Making a more complex choice
> obviously led to more complex implementation. I happen to think
> it's going quite well, though not without occasional bumps and
> hurdles. It's certainly not gone so pear-shaped that it should be
> scrapped. I will grant that for those "less interested" (in the
> non-pejorative sense of being less involved) may feel they have
> lost the thread a bit. If there are webinars or recap meetings
> that could help those who feel that way, it might be a good
> thing. Those who are lost, perplexed or confused often tend to
> imagine monsters around every bend where there's nothing to
> behold, and that should be avoided to the extent possible through
> explanation and edification.
>
>
>
> 6. The fact that various bodies have no experience with something
> that doesn't exist yet also seems rather obvious, but not one to
> engender massive changes at the last minute. That was rather to
> be expected, wasn't it? An alternate reality without
> reorganization and separability (or one where any work on that is
> shelved) has a certain charm and attraction in its relative
> simplicity. However, I see nothing in our current state of
> affairs that would support in any way a plan drastically dismantle
> something that has been approved by every community, the ICANN
> Board and the NTIA just for the sake of taking a deep breath and
> looking around a bit. On the other hand, I can imagine quite a
> number of negative consequences from doing so at this late date,
> or even attempting to do so. It's far better to make sure that we
> are "socializing" this plan as often as possible so that "monsters
> under the bed" of mistrust and opportunism can be pointed out to
> be mere dust balls that disintegrate just by blowing on them.
>
>
>
> Apologies for breaking my promise of brevity.
>
>
>
> Greg
>
>
>
> On Tue, Aug 9, 2016 at 1:01 PM, Christopher Wilkinson
> <lists at christopherwilkinson.eu
> <mailto:lists at christopherwilkinson.eu>> wrote:
>
> Dear Jonathan, Dear Lise:
>
>
>
> I do not support this option. I consider that the constitution of
> PTI should be deferred until the Nominating Committee has made its
> appointments.
>
> Although I respect and admire the offer from the Co-Chairs to act
> as temporary alternates for the - not-yet-appointed - NomCom
> Directors, I would be concerned that you - as PTI Board members -
> would be subject to unreasonable and unmanageable pressures
> meanwhile, including in the election of a Chair of the PTI Board.
>
>
>
> In the light of recent experience, I note that CWG has been driven
> by a few very interested stakeholders towards a position that
> would facilitate, if not anticipate, an early separation of PTI
> from ICANN and its probable severance into two or three distinct
> entities, and that this orientation has been facilitated, if not
> explicitly supported, by CWG counsel. Whereas I am reasonable
> certain that this does not represent the opinion of a wide range
> of other stakeholders.
>
>
>
> Also, I suggest that it is time to call a halt to the vast volume
> of impenetrable legalese that has been generated in the matters of
> the PTI Bylaws, the licensing of IANA IPR, and the so-called
> Annexe C. Most of which is unnecessary for the Transition at this
> stage when - apparently - time is of the essence. Particularly as
> some of this material purports to address aspects of Internet
> management about which there are - to the best of my knowledge -
> no current concerns. Specifically, all discussion of the legal
> aspects of eventual separation, severance or separability, should
> be deferred until the Empowered Community has effectively taken a
> decision that we wish to move in that direction, the procedures
> for which having been defined in the Transition proposal.
>
>
>
> More generally, the Empowered Community, the PTI Board, and - dare
> I say so - CWG's Legal Counsel have, perforce to date, no
> experience in the implementation of the proposed Transition.
>
> I suggest that it would be prudent to let the Transition function,
> as proposed and approved, for 12 to 18 months before going any
> further. Meanwhile we should avoid proposals that are so detailed
> and abstract that they engender at best mistrust and at worst a
> fear of opportunism.
>
>
>
> Regards
>
>
>
> Christopher Wilkinson
>
>
>
>
>
>
>
> On 09 Aug 2016, at 17:30, Jonathan Robinson
> <jrobinson at afilias.info <mailto:jrobinson at afilias.info>> wrote:
>
>
>
>
> Hi Sharon.
>
>
> The IOTF was simply put in place to provide a high-frequency touch
> point for ICANN staff as they worked on the implementation. The
> context for the introduction of the IOTF was the “secondment
> issue” whereby ICANN staff got too far ahead of the community in
> their implementation work. The IOTF had no decision making
> capabilities, these remained reserved for the CWG. Therefore, I am
> not sure it is necessary to reference the IOTF.
>
>
>
> Accordingly, I would suggest rewording the below as:
>
>
>
> · */CWG-Stewardship Comment/*: The CWG recognized that the
> Nominating Committee process for selecting the PTI Nominating
> Committee Directors would not be in place prior to the transition
> and therefore recommended that the two directors be identified
> prior to the transition to serve in the interim until the first
> election of PTI directors. It was proposed that the Co-chairs of
> the CWG-Stewardship, Lise Fuhr and Jonathan Robinson, serve as the
> initial Nominating Committee Directors until the first election of
> the PTI directors. The CWG-Stewardship supports this proposal.
> Should these individuals be unable to serve, the CWG-Stewardship
> would select qualified alternate nominees, and appointment of
> these alternate nominees would be subject to ICANN’s approval (not
> to be unreasonably withheld, conditioned or delayed). The
> CWG-Stewardship proposes that Section 5.5.1 of the Draft PTI
> Bylaws be modified as set forth below to describe the process for
> selecting the initial Nominating Committee Directors to be in
> place at the time of transition.
>
>
>
> Any comment from others?
>
>
>
> Thanks,
>
>
>
> Jonathan
>
>
>
> *From:* Flanagan, Sharon [mailto:sflanagan@
> <mailto:sflanagan@>sidley.com <http://sidley.com>]
> *Sent:* 09 August 2016 06:12
> *To:* Client Committee <cwg-client at icann.org
> <mailto:cwg-client at icann.org>>
> *Subject:* [client com] FW: CWG Comment Letter - PTI Bylaws
>
>
>
> Dear Client Committee,
>
>
>
> Attached is a revised draft of the CWG comment letter to the PTI
> bylaws. This reflects revisions to #4 and #5 of the comment
> letter. Specifically, we have revised the draft to address the
> appointment of Lise and Jonathan as the initial non-ICANN PTI
> directors.
>
>
>
> In particular, we would appreciate a review of the description of
> the IOTF work below for accuracy since we were not directly
> involved in those discussions.
>
>
>
> Given the tight timing (comments are due on Thursday), we are
> sending this to you and ICANN legal simultaneously, and they may
> have further comments.
>
>
>
> Best regards,
> Sharon
>
>
>
>
>
> *1.* *Initial Directors (Section 5.5.1)*
>
> * *
>
> · */Text from Draft PTI Bylaws/: *For the appointment of the
> initial directors of PTI, Section 5.5.1 of the Draft PTI Bylaws
> provides as follows: “Other than Directors initially appointed by
> the incorporator of the Corporation (which Directors shall hold
> office until the first election of Directors) and the President of
> the Corporation, the Directors shall be elected by the Member at
> the annual meeting of the Corporation….”
>
>
>
> · */CWG-Stewardship Comment/*: In connection with the work
> of the Implementation Oversight Task Force, it was noted that the
> Nominating Committee process for selecting the PTI Nominating
> Committee Directors would not be in place prior to the transition
> and recommended that the two directors be identified prior to the
> transition to serve in the interim until the first election of PTI
> directors. It was recommended that the Co-chairs of the
> CWG-Stewardship, Lise Fuhr and Jonathan Robinson, serve as the
> initial Nominating Committee Directors until the first election of
> the PTI directors. The CWG-Stewardship supports this
> recommendation. Should these individuals be unable to serve, the
> CWG-Stewardship would select qualified alternate nominees, and
> appointment of these alternate nominees would be subject to
> ICANN’s approval (not to be unreasonably withheld, conditioned or
> delayed). The CWG-Stewardship proposes that Section 5.5.1 of the
> Draft PTI Bylaws be modified as set forth below to describe the
> process for selecting the initial Nominating Committee Directors
> to be in place at the time of transition.
>
>
>
> “_Each initial Director of the Corporation shall hold office until
> the first election of Directors for such Director’s seat. _Other
> than _The initial _Directors initially _shall be_ appointed by
> the_Member_ incorporator of the Corporation (which Directors shall
> hold office until the first election of Directors)_, with the
> Cross Community Working Group to Develop an IANA Stewardship
> Transition Proposal on Naming Related Functions selecting two
> qualified nominees for appointment as the initial Nominating
> Committee Directors by the Member. Other than the initial
> Directors_ and the President of the Corporation, the Directors
> shall be elected by the Member at the annual meeting....”
>
>
>
>
>
>
>
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> --
>
> --------------
> Matthew Shears
> Global Internet Policy and Human Rights
> Center for Democracy & Technology (CDT)
> + 44 771 2472987
>
>
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