[CWG-Stewardship] [client com] CWG Comment Letter - PTI Bylaws

Tue Aug 9 21:38:53 UTC 2016

Kurtz and Christopher + 1
KAVOUSS

2016-08-09 23:19 GMT+02:00 Kurt Pritz <kurt at kjpritz.com>:

> Chuck and Craig:
>
> I think many of Christopher's points have merit. I believe that there has
> been a firehose type supply of legal writing (and not always great legal
> writing) to digest, an over-complexification of the issues with no
> relaxation of time frames to make decisions, and a bias on the part of some
> participants to see a separation between IANA and ICANN. In hindsight, it
> would have been better to separate out some of these issues for later
> discussion.
>
> Having said that. My understanding is that the decision to appoint
> Jonathan and Lise as a temporary Board was made some months ago after
> discussion. I think there are better solutions but this was the one that
> was selected.
>
> Distilling Greg's email down: we should let the "good" stay in place.
>
> Kurt
> ________________
> Kurt Pritz
> kurt at kjpritz.com
> +1.310.400.4184
> Skype: kjpritz
>
>
>
>
>
>
> On Aug 9, 2016, at 11:30 AM, "Gomes, Chuck" <cgomes at verisign.com> 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] *On Behalf Of *Greg Shatan
> *Sent:* Tuesday, August 09, 2016 2:04 PM
> *To:* Christopher Wilkinson
> *Cc:* 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> 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>
> 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 at sidley.com]
> *Sent:* 09 August 2016 06:12
> *To:* Client Committee <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....”
>
>
>
>
> ************************************************************
> ****************************************
> This e-mail is sent by a law firm and may contain information that is
> privileged or confidential.
> If you are not the intended recipient, please delete the e-mail and any
> attachments and notify us
> immediately.
>
> ************************************************************
> ****************************************
> _______________________________________________
> Cwg-client mailing list
> Cwg-client at icann.org
> https://mm.icann.org/mailman/listinfo/cwg-client
>
>
>
> _______________________________________________
> CWG-Stewardship mailing list
> CWG-Stewardship at icann.org
> https://mm.icann.org/mailman/listinfo/cwg-stewardship
>
> _______________________________________________
> CWG-Stewardship mailing list
> CWG-Stewardship at icann.org
> https://mm.icann.org/mailman/listinfo/cwg-stewardship
>
>
>
> _______________________________________________
> CWG-Stewardship mailing list
> CWG-Stewardship at icann.org
> https://mm.icann.org/mailman/listinfo/cwg-stewardship
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/cwg-stewardship/attachments/20160809/2754ddf7/attachment-0001.html>