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

Wed Aug 10 16:07:38 UTC 2016

Hello all,

I usually agree with a lot of points that Christopher makes, but on this
occasion, I disagree.

PTI needs to be operational for the transition to take place. For this,
it needs a Board. It is not uncommon to have temporary appointments. I
consider Jonathan and Lise to be of such calibre, trust and experience
that they are the perfect people to fill these temporary positions. I
also consider that, having no skin in the game and with their extensive
experience, they would be absolutely able to push back on any
"unreasonable and unmanageable pressures".

The only concern I could see is that there would be irrelevant
accusations of "insiders filling positions". But what alternative do we
have? Deferring the constitution of PTI is not an option.

Kindest regards,

Olivier
(own views)

On 09/08/2016 19:01, Christopher Wilkinson 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 at 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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