[CWG-Stewardship] Process and the last mile

Wed Aug 10 15:07:12 UTC 2016

Thank-you Kavous

From: Arasteh [mailto:kavouss.arasteh at gmail.com] 
Sent: 10 August 2016 12:39
To: jrobinson at afilias.info
Cc: <cwg-stewardship at icann.org> <cwg-stewardship at icann.org>
Subject: Re: [CWG-Stewardship] Process and the last mile

Hi Jonathan

See my " joined consensus"

Kavousd

Sent from my iPhone

On 9 Aug 2016, at 16:11, Jonathan Robinson <jrobinson at afilias.info <mailto:jrobinson at afilias.info> > wrote:

Dear Kavous and CWG Colleagues,

The discussion over the past few days has suddenly become more challenging, especially around the IANA IPR. We have come a considerable distance together and produced a widely appreciated proposal. We are now under some time and logistical pressure to complete the task. In my capacity as co-chair, I decided to put down a some thoughts around where we are right now. These are my own thoughts although I am in almost daily contact with Lise on all matters relating to the CWG.

As I understand it, our primary objective at the present time is to ensure that implementation of the CWG (“Names”) proposal is executed (by ICANN staff) in a manner which is consistent with the letter and spirit of our proposal. Since much of the implementation entails legal or legally oriented work undertaken by ICANN staff (including ICANN legal staff), we need to rely on lawyers to advise us in relation to that work. We are still using Sidley Austin (“Sidley”) for that purpose and have explicitly authorised Sidley (through the CWG Client Committee) to work directly with ICANN legal on our behalf, where appropriate. Timing constraints have meant that some of our feedback on ICANN staff’s implementation work is necessarily delivered during the public comment period on the relevant document/s. Again, we have leaned on Sidley to assist us with drafting the appropriate and complete form of response via the public comment (primarily mindful of the point relating to execution consistent with the CWG proposal).

In addition to all the work described above, we have also had the need to resolve the open issue of the IANA IPR. This was not resolved in the CWG proposal and we explicitly committed to resolve how to deal with it as part of the implementation work. Moreover, Alissa Cooper has made it crystal clear on more than one occasion that the transfer of the IANA IPR to its post-IANA Transition home is a necessary condition for the IANA Transition. Therefore, we must get this issue resolved and we need to get it resolved to the mutual satisfaction of the three affected “operational communities”. To this extent, it is not a CWG issue as such but an issue of common interest. 

Lise and I held regular co-ordination meetings with the other OCs throughout our work. More recently, we (the CWG) formed a group comprising the co-chairs and Greg Shatan, to work in conjunction with the other two OCs on IANA IPR. That group successfully produced a set of principles for the transfer of the IANA IPR which the CWG has previously reviewed and supported. The most recent work has seen the CWG IANA IPR group come together with the other OCs as well as our respective legal advisors and to turn the principles into agreements. This was initially very challenging and common ground was not obvious. But, with the efforts of all and a reminder that this was a necessary condition for the IANA Transition, very good progress has been made. We have relied on Josh Hofheimer from Sidley who has managed to produce an excellent blend of firm advice and willingness to compromise. Many of the issues are specialist areas (e.g. trademark & trust law) and we need to rely on Sidley’s specialist expertise to guide us.

I should note that Greg was put onto the IANA IPR group together with Lise & myself because this (IP Law) is his personal area of expertise. My experience of his work on the IANA IPR is that he has been exceptionally hard working and an excellent resource to the CWG. In my view, we owe him thanks for that and more!

Now, looking ahead, we urgently need to get the IANA IPR documents posted for public comment so that they do not cause us a problem in the overall timing. We still have a key issue to resolve in that we need to agree on an entity sign the community agreement on behalf of the Names Community. Again, a suitable and appropriate compromise may be required.

Please can we all remain together and focussed on only the essential, necessary and appropriate issues as we work through the “last mile” on our journey towards the successful IANA Transition.

Thank-you.

Jonathan

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