Members: Alan Greenberg, Cheryl Langdon-Orr, Fiona Asonga, Izumi Okutani, Jordan Carter, Jorge Villa, Julie Hammer, Leon Sanchez, Mathieu Weill, Olga Cavalli, Pär Brumark, Robin Gross, Samantha Eisner, Sébastien Bachollet, Suzanne Radell, Thomas Rickert, TIjani Ben Jemaa (17)
Participants: Aarti Bhavana, Albert Soto, Andrew Sullivan, Anne Aikman-Scalese, Avri Doria, Barrack Otieno, Bradley Silver, Brett Schaefer, Cherine Chalaby, Chris Wilson, Christopher Wilkinson, Corinne Cath, Dave Kissoondoyal, David Maher, David McAuley, Edward Morris, Erika Mann, Farzaneh Badii, Finn Petersen, Gary Hunt, Greg Shatan, Jeff Neuman, Jorge Cancio, Kavouss Arasteh, Keith Drazek, Ken Salaets, Lito Ibarra, Lousewies van der Laan, Malcolm Hutty, Mark Carvell, Markus Kummer, Mike Chartier, Mikhail Medrish, Milton Mueller, Niels ten Oever, Olivier Crepin-Leblond, Pedro da Silva, Philip Corwin, Rafael Perez Galindo, Ron da Silva, Sabine Meyer, Seun Ojedeji, Simon Jansson, Sivasubramanian Muthusamy, Sonigitu Ekpe, Stephen Deerhake, Suzanne Woolf, Tatiana Tropina, Thomas Schneider, Tom Dale, Wisdom Donkor (51)
Legal Counsel: Edward McNicholas, Holly Gregory, Michael Clark, Nancy McGlamery, Rosemary Fei, Steven Chiodini (6)
Observers and Guests: Adrian Carballo, Elizabeth Andrews, John Jeffrey, John Poole, Saman, Swati Muthukumar, Taylor Bentley
Staff: Bernie Turcotte, Berry Cobb, Brenda Brewer, Grace Abuhamad, Karen Mulberry, Mandy Carver, Melissa King, Mary Wong, Nigel Hickson, Theresa Swinehart, Yuko Green
Apologies: Steve DelBianco, Martin Boyle
**Please let Brenda know if your name has been left off the list (attendees or apologies).**
The Adobe Connect recording is available here: https://icann.adobeconnect.com/p4xajp80pzj/
The audio recording is available here: http://audio.icann.org/accountability/ccwg-accountability-bylaws-11apr16-en.mp3
1. Opening Remarks
2. Second reading of question responses agreed on previous call
3. Resolution of remaining questions
4. Next Steps
5. ICANN 56 - Helsinki
These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript.
1. Opening Remarks (LS)
- These sessions are not for reopening any issues.
- KArasteh - (from chat) There was discussion regarding addition of a qualifier to a text relating IANA Function .Since such addition would have made the legal text
weak and subject to a judgement, it was said that such qualifier was not necessary. One participant from the North America supported by other participants from
that part of world surprisingly stated that since the ICANN Bylaws is US document thus must be written according to the US style.
- KArasteh - against this position
- GShattan - ICANN is a California corporation and its Bylaws will be interpreted in US courts and as such should be drafted for this.
- LS - KA can pursue this on the mailing list if necessary.
2. Second reading of question responses agreed on previous call (TR)
- List of approved questions circulated Firday 8 April is approved in second reading with no questions.
3. Resolution of remaining questions (TR)
- Presentation via slide deck listing three categories:
- Issues for discussion
- “uncontested” comments
- Questions from our group
- Q1 and AQ13 - Root Zone - Approved as is in slide.
- Q2 - Grandfathering - Agreed as is in slide.
- Q6 - Removing colleages by the Board - Agreed as presented.
- Q29 and AQ22 - Removing NomCom Board Members - This point is moot anyways. Lawyers should not make any reference to the carve out when implementing
this recommendation. BSchaefer disagrees but if we are going to be strict it should also apply to the carve out - KArasteh ref to carve out and his email. Accepted as is.
- Q33 and AQ5 - Mediation and Community IRP - BBurr and lawyers will discuss.
- AQ1 Selection of IRP panel - Agreed as presented in slides.
- AQ2 - IRP Rules and Procedures - Rules of procedure changes can be discussed and proposed by the panel but must be approved by the community
- AQ8 - PICS - Lawyers will reply to Jorge on the list
- AQ10,15,17,18,20,21 - RR/IRP -
- BBurr HR cannot be brought to IRP before the FOI is complete for HR. DMcAuley notes his questions was not presented properly. This should really debated in WS2.
- disputes vs resources for protocal parameters - Go with Andrew's recommendation "disputes relating to protocal parameters"
- definition of staff ambiguous - Rosemary has drafted some language addressing this in another section and could be imported here.
- Cost shifting - Agree with recommendation in question.
- Shall Decisions be suspended pending Resolution? - BBurr should apply to both and we will ask that the lawyers make it clear it applies to both. no arguments against.
- 4.3(x)(ii)(B) Can anyone or just the EC start a court action to enforce an IRP decision if the Board rejects – should be made clear? - BBurr Any party to an action can start an action to enforce. The IRP rules will confirm this. no arguments against.
- 4.3(x)(iii) Lawyers to refine language re interplay of arbitration in Ry or Rr agreements - BBurr drafting glitch registry and registrars have binding arbitration in
their contracts and these should be used for contract disputes. It was not intended that registry and registgrars can use the IRP. no arguments against.
- Additional question from TBenJemaa - BBurr the 6 month language will be in the Bylaws. What happens if the 6 month is not respected this will be addressed i
n the IRP implementation. The Bylaws should leave the door open if cases cannot be resolved in the 6 month period. Lawyers will implement this.
- AQ11 - Carve Out - TRickert have asked the lawyers to revise the language in the Bylaws to more clearly reflect the recommendations. The Carve out must be
implemented in the Bylaws according to the CCWG recommendations.
- AQ12 - Mission & Regulation - BBurr has asked lawyers to go back and consider some of the alternatives proposed by herself. MHutty happy
with results so far and waiting for what lawyers will come up with next. BBurr there were serious anti-trust concerns vs Regulation.
- AQ16 - defn of Global Internet Community? - ASullivan suggest defining WHO is supposed to take the decision vs the GIC. In public cosultation
type processes where anyone can participate should remain GIC. KArasteh same as the global multistakeholder community? MHutty agree with KA.
- AQ19 IANA Bugeet and IETF VS IAB. We should pick the IAB unless instructed otherwise.
- AQ23,24 - section 25.2 Fundamental Bylaw needed for compostion of SO/ACs? This was not foreseen in our recommendations. Copy and paste
glitch at the end of 25.2 (e) and (f) should be fixed.
4. Next Steps
- We will need a call tomorrow at noon UTC where we should be able to complete answering questions for the legal teams.
5. ICANN 56 - Helsinki
- Request was presented to Board Finance Committee last Tuesday. Response received.
- Meeting will take place on Sunday 26 June
- Members who have existing funding through ICANN for ICANN56 will receive an extra hotel day. Others are recommended to attend remotely
or at their own expense.
- Sebastien Bachollet: request that core leadership team receive support to attend.
- External legal counsel will not be attending or requested for that meeting since the goal is WS2 kick-off.
· None -- close of call
Brenda Brewer: (4/11/2016 13:37) Hello all and welcome to the CCWG Accountability Review of Draft Bylaws Meeting on 11 April 2016 @ 19:00 UTC! Please note that chat sessions are being archived and follow the ICANN Expected Standards of Behavior: http://www.icann.org/en/news/in-focus/accountability/expected-standards
Olga Cavalli - GAC Argentina: (13:48) hello all! hi Brenda
Olga Cavalli - GAC Argentina: (13:51) I hear no sound, is this ok?
Mathieu Weill: (13:53) Hello ! Good morning / day / afternoon / evening / night
Kavouss Arasteh: (13:54) Hello All
Kavouss Arasteh: (13:54) Dear Co Chairs
Kavouss Arasteh: (13:55) I am obliged to make a statement a very important statement before you start
FIONA ASONGA (ASO): (13:55) Hallo Everyone
Olga Cavalli - GAC Argentina: (13:57) hi I hear nothing is this fine or is my computer?
Tatiana Tropina: (13:57) Hello everyone!
Sabine Meyer: (13:57) hi everyone. Olga, now I hear Grace :)
Olga Cavalli - GAC Argentina: (13:57) hi grace i hear you!
Tatiana Tropina: (13:57) the sound is perfect, thanks!
Grace Abuhamad: (13:57) wonderful!
Holly J. Gregory (Sidley): (13:57) Greetings!
Wisdom Donkor: (13:57) fine with me
Wisdom Donkor: (13:57) Hello everyone
Wisdom Donkor: (13:58) greetings from Ghana
Pedro da Silva - [GAC Brasil]: (13:58) Hello everyone!
Dave Kissoondoyal: (13:58) Hello All
Malcolm Hutty: (13:58) hello all
Leon Sanchez (Co-Chair ALAC): (13:58) hello everyone
Leon Sanchez (Co-Chair ALAC): (13:58) we will be beginning shortly
Pär Brumark (GAC Niue): (13:59) Good Evening everyone!
Thomas Rickert, CCWG Co-Chair: (13:59) Hi all!
Suzanne Radell (GAC USA): (13:59) Hello all
Cheryl Langdon-Orr (CLO): (13:59) hi
Cherine Chalaby: (13:59) Hi everyone
Lousewies van der Laan: (14:00) hi all
Alan Greenberg: (14:00) I am on another call and will join here as soon as I can, probably about 20-25 minutes.
Aarti Bhavana: (14:00) Hi All
Alberto Soto: (14:01) Hello all!
NIGEL HICKSON: (14:02) good evening
Bernard Turcotte Staff Support: (14:02) hi all
Olga Cavalli - GAC Argentina: (14:02) hola Alberto!!
Alberto Soto: (14:02) Hola Olga!
Alberto Soto: (14:03) Thanks Leon
Kavouss Arasteh: (14:03) Leon
Kavouss Arasteh: (14:03) I have tto make a statement
Mathieu Weill, ccNSO, co-chair: (14:03) Noted Kavouss, Leon will turn to you momentarily
Kavouss Arasteh: (14:03) There was discussion regarding addition of a qualifier to a text relating IANA Function .Since such addition would have made the legal text weak and subject to a judgement, it was said that such qualifier was not necessary. One participant from the North America supported by other participants from that part of world surprisingly stated that since the ICANN Bylaws is US document thus must be written according to the US style
jorge cancio (GAC Switzerland): (14:05) hello all
Olga Cavalli - GAC Argentina: (14:05) hola Jorge
Edward Morris: (14:05) ICANN is a California public benefit corporation. It MUST comply with California law.
Tatiana Tropina: (14:05) +1 to Ed. ICANN resides in California.
Sonigitu Ekpe 2: (14:06) Hello from Nigeria!
Cheryl Langdon-Orr (CLO): (14:06) was lst time I checked Ed
Cheryl Langdon-Orr (CLO): (14:06) Kavous it was a CWG call and there was *NO* takovr from ny Lawyer
jorge cancio (GAC Switzerland): (14:07) hola Olga, que tal?
Kavouss Arasteh: (14:07) hello
Holly J. Gregory (Sidley): (14:07) Cheryl, Thank you for the clarification.
Cheryl Langdon-Orr (CLO): (14:07) ANY Lawyer (or others IMO though some of the participants intervened more thn others that is normal
Tatiana Tropina: (14:07) I think there is a difference between addressing the multi-stakeholder interests and complying with California law in the bylaw. One doesn't exclude another
Edward Morris: (14:08) +1 Tatiana
Tatiana Tropina: (14:08) Absultely, Gerg. +1.
Cheryl Langdon-Orr (CLO): (14:08) Support you in this matter Greg
Kavouss Arasteh: (14:08) It is not US lAW dOCUMENT
Tatiana Tropina: (14:08) It is a document that can be used in court,
Philip Corwin: (14:08) Greg's view seems eminently correct
Kavouss Arasteh: (14:08) I disagree totally
Tatiana Tropina: (14:09) there is aneed for common understanding of terms
Kavouss Arasteh: (14:09) it is incorrect
David Maher (PIR): (14:09) @Greg +1
Cheryl Langdon-Orr (CLO): (14:09) And what are the Bylaws of a Califrnian NFP Comoany Then ???
Keith Drazek: (14:09) Strongly agree with Greg.
Tatiana Tropina: (14:09) Greg, again +1
Alberto Soto: (14:09) +1 Greg
Edward Morris: (14:09) Thanks for the explanation Greg. Agree totally with your perspective.
Tatiana Tropina: (14:09) yes, it's rather phylosophical and we have to address legal issues
Tatiana Tropina: (14:09) thanks yes, thanks Greg.
Greg Shatan: (14:10) Conclusory allegations of incorrectness fail for lack of support or explanation.
Pedro da Silva - [GAC Brasil]: (14:10) It is an issue that will certainly serve as an input for discussions of the jurisdiction WS2 subgroup
Olga Cavalli - GAC Argentina: (14:11) +1 to Pedro´s comments
Greg Shatan: (14:11) The issue of proper legal drafting of the Bylaws of a US corporation?
Leon Sanchez (Co-Chair ALAC): (14:12) Pedro, Olga, agree with you. However I would be cautious on introducing issues that we know will be dealt with in WS2 at this stage ;-)
Jordan Carter (.nz, WP1 rapporteur): (14:12) now on adobe room - have been on phone since beginning of meeting
Kavouss Arasteh: (14:12) WE should not take it granted that jurisdiction is already agreed to be totally based on US Law
Olga Cavalli - GAC Argentina: (14:12) @Leon it does not intend to be new but reinforce the fact that it should be adressed in the future under the jurisdiction scope
Leon Sanchez (Co-Chair ALAC): (14:13) Kavouss I believe no one is taking that for granted for a future discussion but the fact remains that today it is a California corporatiin
Jordan Carter (.nz, WP1 rapporteur): (14:13) What we can take for granted is that THESE bylaws at THIS time are for an organisation operating under U.S. Law. If ICANN moves to a new jurisdiction, it will be vital to make sure the new bylaws are right in that legal framework. This is not a political point, it's just a factual one.
Leon Sanchez (Co-Chair ALAC): (14:13) Indeed Jordan
Brenda Brewer: (14:13) Seun Ojedeji joins audio only.
Olga Cavalli - GAC Argentina: (14:13) Jordan ok
Pedro da Silva - [GAC Brasil]: (14:14) Precisely, Jordan
Farzaneh Badiei: (14:14) I think discussion in WS2 on jurisdiction is going to be limited and does not include interpretation of bylaws
Alberto Soto: (14:14) Ok Jordan
David McAuley (RySG): (14:14) can we get scroll co0ntrol
Sonigitu Ekpe 2: (14:14) Which Juridsiction will ICANN move to? Global on what Legal structure?
Jordan Carter (.nz, WP1 rapporteur): (14:15) we are as obliged to get these ones right with ref to U.S. law as we would be to get future ones right if they were built in the legal framework of ... um... Swaziland?
Kavouss Arasteh: (14:15) All american or pro american participants agree with each other
Leon Sanchez (Co-Chair ALAC): (14:15) @Sonigitu We don't know yet. That is something to be discussed in WS2
Jordan Carter (.nz, WP1 rapporteur): (14:15) Kavouss: nothing you have advanced as an argument defeats the point. Please stop trying to politicise a point that is a mere technicality.
Kavouss Arasteh: (14:15) I CAN NOT AGREE ANY IMPOSITION AT THIS STAGE .
Mathieu Weill, ccNSO, co-chair: (14:15) Slides have been circulated if you want to scroll through.
David McAuley (RySG): (14:16) Thanks Mathieu
Sonigitu Ekpe 2: (14:16) Thank you Leon? Do we currently have a Global jurisdiction?
Jordan Carter (.nz, WP1 rapporteur): (14:16) Alternatively, introduce an argument that changes the perspective.
Leon Sanchez (Co-Chair ALAC): (14:16) @Sonigitu I am not sure I understand well your question but as things stand today, ICANN is a California non-for-profit organization
Tatiana Tropina: (14:17) as a lawyer, I am not sure even what "global" jurisdiction might mean in the context of this discussion...
Jordan Carter (.nz, WP1 rapporteur): (14:17) Tatiana: I think it isn't a legal term
Tatiana Tropina: (14:17) Jordan, yes.
Sonigitu Ekpe 2: (14:17) Accepted, but how long will be, if we are talking about movement?
Kavouss Arasteh: (14:17) Tatiana I DISAGREE WITH YOU
Farzaneh Badiei: (14:18) Global jurisdiction doesn't exist, although international orgs want to say so!
Jordan Carter (.nz, WP1 rapporteur): (14:18) ICANN has to exist somewhere as an entity, or multiple "somewheres", and every single place it was incorporated, its rules would have to follow the legal requirements of that jurisdiction.
Tatiana Tropina: (14:18) Kavouss, well, I respect your position. But I do not know the legal borders of the global jurisdiction term
Tatiana Tropina: (14:18) +1 to Jordan
Jordan Carter (.nz, WP1 rapporteur): (14:18) if it was an international organisation it would have to follow international law
Farzaneh Badiei: (14:18) "global jurisdiction" sounds like an oxymoron to me
Jordan Carter (.nz, WP1 rapporteur): (14:18) ("applicable" international law)
Tatiana Tropina: (14:19) Then it will have to be intergovernmental organisation as an international one
Tatiana Tropina: (14:19) Farzaneh, exactly.
Sonigitu Ekpe 2: (14:19) But it is not an International Organization? How can it be made to be one?
Tatiana Tropina: (14:19) Sonigtiu, no.
Kavouss Arasteh: (14:19) Those people who are not familiar with the legal term btter to kindly not comment
Farzaneh Badiei: (14:20) who is not familiar ?
Mathieu Weill, ccNSO, co-chair: (14:20) Can I suggest that the discussion i the chat remain focused on the item under discussion ?
Alberto Soto: (14:20) international organization based in a particular country. It must conform to the laws of that country.
Tatiana Tropina: (14:20) Kavouss, I beleve that everyone has the right to comment - this is what this group is for.
Jordan Carter (.nz, WP1 rapporteur): (14:21) I agree, Thomas.
Kavouss Arasteh: (14:21) but on the point dear Morris
jorge cancio (GAC Switzerland): (14:21) Seems that coleagues are eager to enter ws2 discussions :-)
Cheryl Langdon-Orr (CLO): (14:21) indeed Jorge
Greg Shatan: (14:21) Yes, Jorge, you do.
Farzaneh Badiei: (14:21) yes Tatiana. we should all respect all the comments!
Tatiana Tropina: (14:22) @Jorge, we can't wait :)
Kavouss Arasteh: (14:22) if the comment based on logic and not just repaet othert's argument
jorge cancio (GAC Switzerland): (14:22) aren't you eager too, Greg? ;P
Greg Shatan: (14:22) A discussion of best practices in legal document drafting is a thin basis for a discussion of "jurisdiction."
Edward Morris: (14:22) For those looking for the legal structure ICANN is currently organised under, you can find it starting with section 5110 here: www.legalinfo.ca.gov/.html/corp_table_of_contents.html
Brett Schaefer: (14:22) Sorry, I was away. I disagree firmly that "The CCWG recommendations do not suggest that the approval or any other decision from the EC is required to exercise that power"
Farzaneh Badiei: (14:23) Kavouss please do not set impose own rules for how to continue the conversation
Greg Shatan: (14:23) Jorge, I just can't wait. The excitement is just building. ;-)
Alan Greenberg: (14:25) On call now.
Mathieu Weill, ccNSO, co-chair: (14:25) Welcome Alan
jorge cancio (GAC Switzerland): (14:26) Agree with Becky
Kavouss Arasteh: (14:27) SOME PEOPLE ARE OVER EXCITED OVER CARVE OUT
Greg Shatan: (14:27) Truer words were never spoken.
Tatiana Tropina: (14:27) @Greg global excitement
Mathieu Weill, ccNSO, co-chair: (14:28) I am carved out from the excitement apparently.
Edward Morris: (14:28) Agree with Brett on principle.
Tatiana Tropina: (14:28) Matieu LOL
Mathieu Weill, ccNSO, co-chair: (14:28) I think we should all pause and breathe. Just look at the report is our duty now
jorge cancio (GAC Switzerland): (14:29) Let's compare comparable things
Farzaneh Badiei: (14:30) "colleages" ??
Alan Greenberg: (14:30) We are dealing with issues raised by lawyers where there was insufficient precicement, or silence on an issue where they need clarity to draft the Bylaws. We need to make each decision on its own basis and according to the details of the situation.
Sabine Meyer: (14:30) And according to the report! :)
Greg Shatan: (14:30) We are officially in the weeds
Mark Carvell - UK rep on GAC: (14:31) Agree with Becky that so called "carve out" seems irrelevant here. The carve-out relates to policy advice to the Board on which they base a decision.
Greg Shatan: (14:31) We are now rolling in the weeds
Jordan Carter (.nz, WP1 rapporteur): (14:31) The key logic to not changing the power for the Board to remove Board members is that nowhere in our bylaws should we be changing the powers of community components without an explicit mandate to do so
Mathieu Weill, ccNSO, co-chair: (14:31) Let us please focus on each question in turn
Cheryl Langdon-Orr (CLO): (14:31) We are on Q6 are we not
Greg Shatan: (14:31) We are now smoking the weeds
Farzaneh Badiei: (14:32) are we?
Avri Doria: (14:32) If I understood correctly, it was a matter of making sure that the same standards for decsions would work in severl different issues.
Cheryl Langdon-Orr (CLO): (14:32) well said ALAN
Jordan Carter (.nz, WP1 rapporteur): (14:32) we can no more impair the Board's right to remove directors than we can the GNSO's right to make consensus policy under the PDP.
Leon Sanchez (Co-Chair ALAC): (14:32) indeed Alan
Jordan Carter (.nz, WP1 rapporteur): (14:32) the fact the report is silent on both questions is not relevant.
Malcolm Hutty: (14:32) That was utterly shameless Alan, even for you!
Greg Shatan: (14:32) +1 Avri
Edward Morris: (14:33) Well put Avri
Alan Greenberg: (14:33) MAlcom it has nothing to do with shameless. I may support or oppose any ultimate decision, but we need to evaluate each on their own merits.
Tatiana Tropina: (14:33) +1 to scroll control request - please please
Mathieu Weill, ccNSO, co-chair: (14:34) @tatiana, the slides have been circulated on list if you want to scroll
Sabine Meyer: (14:34) Be the captain of your scroll, Tanya
Mathieu Weill, ccNSO, co-chair: (14:34) Thks Sabine
Malcolm Hutty: (14:34) @Alan, NO, we're not reconsidering the issues on their merits, we're now at the stage of seeking to implement the Report faithfully
Tatiana Tropina: (14:34) Mathieu, I kniow jus as someone with 11 inch Macbook I like having everything on one screen without different windows, but point taken :)
Alan Greenberg: (14:35) @Malcolm, that is what I meant by merits.
Mathieu Weill, ccNSO, co-chair: (14:35) @Apologies Tatiana but we think maintaining sync enables everyone to stay "on topic" a little better
Jeff Neuman: (14:36) yeah...cooperative engagement
Tatiana Tropina: (14:36) No problem, Mathieu, I totally understand :)
Tatiana Tropina: (14:36) and even kind of agree
Mathieu Weill, ccNSO, co-chair: (14:37) Thank you Tatiana !
Avri Doria: (14:38) Jordan, i do not understand why it isn't relevant. I thought parity in process was a given no matter what the issue. I am not stating that the situations are the same, that needs further clarification. We may need to discuss that as a subject of its own. But if they are sufficiently analogous, then it seems arguments of relation to the Report should be useable.
Farzaneh Badiei: (14:39) what is the procedure for mediator selection ?
Holly J. Gregory (Sidley): (14:39) That is an issue for next stage - IRP working group to develop
Farzaneh Badiei: (14:39) Thanks
Olga Cavalli - GAC Argentina: (14:40) cannot hear Becky
jorge cancio (GAC Switzerland): (14:41) I would appreciate a response by the lawywers
jorge cancio (GAC Switzerland): (14:41) thanks, Leon!
Holly J. Gregory (Sidley): (14:41) Certification of Jorge's question is accepted
jorge cancio (GAC Switzerland): (14:42) thanks, Holly!
Farzaneh Badiei: (14:44) is it possible to raise the issues independently in another session ?
Farzaneh Badiei: (14:44) (with IRP group)
Kavouss Arasteh: (14:46) tHOMAS. iT COULD BE SUGGESTED BY PANELIS BUT APPROVED BY THE COMMUNITY
SivasubramanianM: (14:46) Is the draft in progress on a suggestion enabled shared Google doc or etherpad?
David McAuley (RySG): (14:49) Thomas that was not really my question -
Niels ten Oever: (14:49) IRP only after FoI devt
David McAuley (RySG): (14:49) With respect to Ed and Niels, I stand on my comment on list about HR claims at IRP and the implication that is in explanatory text that runs contrary to bylaws text. I continue to suggest that on an issue of such importance, a WS2 debate is much more preferable than bolting surprising explanatory text into bylaws.
Tatiana Tropina: (14:49) Yes. That's right. Only after the FOI
Niels ten Oever: (14:50) I think we are all on the same page.
Tatiana Tropina: (14:50) oh my hand is up again
David McAuley (RySG): (14:50) Thomas my point was that wheher IRP can hears HR claims even after FOI is open to debate in ws2
Kavouss Arasteh: (14:51) wE SHOULD ADD,
Kavouss Arasteh: (14:51) NOT WITHSTANDING WITH THE CURRENT PRACTICES BY icann .....
Niels ten Oever: (14:51) IRP claims after FoI should defintely be the case, as is in the explanatory text
Niels ten Oever: (14:52) in annex 6
Avri Doria: (14:53) Can questions of HR rights requests be raised during the transtion period and just be put on hold until the FoI was complated.
Tatiana Tropina: (14:53) I also think that there is a confusion because of the differences between respect/protect and neforce - the latter two were excluded by us from anything
Edward Morris: (14:53) In the ICM v ICANN decision due process is already included in ICANN's legal obligatioon. I'm just trying o get confirmation we are not losing this as a result of transitionary language.
Tatiana Tropina: (14:54) Ed, absolutely. But they are not mutually exclusive - those two obligations
Tatiana Tropina: (14:55) concenring David's point - I think even ICANN legal was on the position that HR language was a subject of IRP and this is why we have dormant bylaw
Niels ten Oever: (14:55) +1
Tatiana Tropina: (14:55) so it's on the border of reopening the issue, but I respect David's opinion, just disagree
David McAuley (RySG): (14:56) I was unaware of ICANN legal's ok
Tatiana Tropina: (14:56) David, that were the last debates concerning the bylaw
Mathieu Weill, ccNSO, co-chair: (14:56) Para 23 of annex 6 states :
Mathieu Weill, ccNSO, co-chair: (14:56) “Within its Core Values, ICANN will commit to respect internationally recognized Human Rightsas required by applicable law. This provision does not create any additional obligation forICANN to respond to or consider any complaint, request, or demand seeking the enforcement ofHuman Rights by ICANN. This Bylaw provision will not enter into force until (1) a Framework ofInterpretation for Human Rights (FOI-HR) is developed by the CCWG-Accountability as aconsensus recommendation in Work Stream 2 (including Chartering Organizations’ approval)and (2) the FOI-HR is approved by the ICANN Board using the same process and criteria it hascommitted to use to consider the Work Stream 1 recommendations.”
Tatiana Tropina: (14:56) that HR can be a subject of IRP and this opens the door to claims in the absense of FOI
jorge cancio (GAC Switzerland): (14:56) strongly agree with Niels
jorge cancio (GAC Switzerland): (14:57) We agreed on a bylaws text, which should be respected as such
David McAuley (RySG): (14:58) I agree on bylaws text as expressed in Annex 06
Kavouss Arasteh: (14:58) Greg +1
Edward Morris: (14:58) No problem with your conceptualization Greg. Other proposals have not been as clear. Thanks.
Holly J. Gregory (Sidley): (14:59) David, do you think it is capture approriately in the draft bylaws?
Brett Schaefer: (14:59) Seems that caution on this would lead to NOT including the HR language int eh core values prior to teh finalization of the FOI and WS2 HR work.
jorge cancio (GAC Switzerland): (14:59) Thanks Mathieu - it is clear that we have to include this into the core values
David McAuley (RySG): (14:59) Holly - I thought bylaws text was fine in report but implication in 27.3 (as I recall) was not agreed
Brett Schaefer: (15:00) Jorge, it seems exactly the opposite to me.
Holly J. Gregory (Sidley): (15:00) Got it. We will take another look.
Andrew Sullivan: (15:00) I'm here now, in case that helps
Andrew Sullivan: (15:01) I suspect the word "resources" happened because the previous recommendation was about "numbering resources"
Andrew Sullivan: (15:01) which is what RIRs call them
Mathieu Weill, ccNSO, co-chair: (15:01) Andrew, in case anyone has questions we will turn to you is that ok ?
Tatiana Tropina: (15:02) @David, I think the implication was agreed at the end of January during the last debates with the board....
Tatiana Tropina: (15:02) and ICANN legal
Andrew Sullivan: (15:02) sure
Andrew Sullivan: (15:02) Sorry I had to be late, just couldn't move another meeting
David McAuley (RySG): (15:03) Thanks Tatiana - I do not recall this and stand by what I said but I also respect those views of others
Tatiana Tropina: (15:04) David, no problem. It was a crazy time for all of us and it was impossible to follow all the details
Tatiana Tropina: (15:04) so may be I am also missing something here
Tatiana Tropina: (15:05) and of course, respect your opinion - we have to make things clear for everyone @David
David McAuley (RySG): (15:06) Thanks Tatiana
Kavouss Arasteh: (15:08) i have a comment
Holly J. Gregory (Sidley): (15:09) Any party to the IRP -- key is "party"
Farzaneh Badiei: (15:10) if there is an arbitration agreement, they first have to seek recource from arbitration. they cannot just go to court.
Rosemary Fei (Adler & Colvin): (15:11) We can make that clear in the Bylaws, but can't do anything about what the agreements themselves say.
Farzaneh Badiei: (15:12) I agree with Tijani, but as he said it is related to rules and procedure and and task of IRP group
Holly J. Gregory (Sidley): (15:13) Becky, ois that an instruction to take the timing out of the bylaws?
Holly J. Gregory (Sidley): (15:14) IRP Rules of Procedure to define when 6 months is not possible -- ok -- so we will cropss reference to Rules of Procedure
Leon Sanchez (Co-Chair ALAC): (15:15) I passed it to you just in time Thomas :P
jorge cancio (GAC Switzerland): (15:16) To the carve-out: as said by some other, I feel we should keep to the CCWG report as much as possible and keep it simple
Tijani BEN JEMAA: (15:17) old hand
Mathieu Weill, ccNSO, co-chair: (15:17) Paragraph 44 of Annex 1 is the reference for the description of the carve out
Brett Schaefer: (15:17) It is also critical that the carve-out must not be narrowed.
Edward Morris: (15:18) Completely agree Brett.
jorge cancio (GAC Switzerland): (15:19) exceptions also have to be construed restrictively - is this also a common law principle?
Finn Petersen, GAC - DK: (15:19) Kavouss’ proposal seems to simplify the bylaws drafting a lot and be a direct implementation of the CCWG report – so wo?
Finn Petersen, GAC - DK: (15:19) so wo = so why not
Edward Morris: (15:21) Good approach, Thomas.
Greg Shatan: (15:21) Agree, with Brett.
Pedro da Silva - [GAC Brasil]: (15:21) I think we all agree that we should stick as close as possible to the report. In this regard, I fully agree with the coChairs suggestion to ask for reworded carve-out bylaws.
Brett Schaefer: (15:21) The current draft does not in any way broaden the carve-out. Based on the e-mail traffic, it seems Kavouss is unhappy about that and wants significant revisions to see if he can have it narrowed.
Kavouss Arasteh: (15:22) Brett
Kavouss Arasteh: (15:22) IO DO NOT ACCEPT SUCH ACCUSATION
Kavouss Arasteh: (15:23) i am not trying to either narrowing or expanding
Kavouss Arasteh: (15:23) pls kindly do not make such an allegation
Kavouss Arasteh: (15:23) YOU DID IT MANY TIOMES BUT PLS STOP
Kavouss Arasteh: (15:23) TKS
Holly J. Gregory (Sidley): (15:24) I will confess that this may be beyond the lawyers -- it seems that there is not full agreement - but we will try again.
Brett Schaefer: (15:24) I hope you appreciate the irony in lecturing me about this matter.
Kavouss Arasteh: (15:25) i AM NOT LECTURING ANY BODY NOR ACCEPT UNFAIR TREATMENT
Brett Schaefer: (15:26) Then stop shouting.
Kavouss Arasteh: (15:26) I KNOW THE SESITIVITY OF A HANDFULL NO. OF PARTICIPANTS TO cARVE OUT CREATED BY THEM
Jordan Carter (.nz, WP1 rapporteur): (15:27) please stop shouting, Kavouss. It's rude.
Malcolm Hutty: (15:27) Good point Milton, I can see how telling ICANN to regulate might be legally problematic, but telling it not to I wonder why there is a problem. But content to defer, find a new word
Milton: (15:28) yes, would like to hear from Holly and Rosemary
Alberto Soto: (15:28) Coordination?
mike chartier: (15:28) +1 milt et al
Milton: (15:28) what?
Milton: (15:28) I thought it was all about Malcolm ;-)
Jordan Carter (.nz, WP1 rapporteur): (15:29) Miltetal
Jordan Carter (.nz, WP1 rapporteur): (15:29) it's like a new alloy
Jordan Carter (.nz, WP1 rapporteur): (15:30) ccwgtonimum
Brett Schaefer: (15:30) @Jordna, that is a very dense metal
Malcolm Hutty: (15:30) I merely raised the point, but many people have joined in on it, and all in a very positive and collegiate way, heartening on such a tricky point
Brett Schaefer: (15:30) Sorry, meant Jordan
Milton: (15:31) Miltetal is a very powerful metal
Tatiana Tropina: (15:31) This metal is so dense, light bends around it ...
Edward Morris: (15:31) Thank you Holly.
jorge cancio (GAC Switzerland): (15:31) a dark and heavy metal?
Milton: (15:31) Holly, Rosemary and the Jack of Hearts
Andrew Sullivan: (15:32) It's slightly worrisome that the counsel isn't convinced there's alignment; I think that means that lawyers are working without clear instructions from clients
Andrew Sullivan: (15:32) and that never works out
Holly J. Gregory (Sidley): (15:32) Kavouss, I said we would re-look at it.
Alan Greenberg: (15:33) I suspect (but do not know) that a Bylaw saying that we should not regulate implies that absent the Bylaw, we would have the right to regulate. And that could be problematic.
Malcolm Hutty: (15:33) Andrew, attempting to paraphrase heavily negotiated text cannot be easy, may (as Holly suggested) ultimately not worth the attempt
Greg Shatan: (15:33) Throughout our discussions, concerns were raised about the word "regulate". Furthermore, the words used in the proposal were never intended to be taken verbatim.
Cheryl Langdon-Orr (CLO): (15:33) tru
Andrew Sullivan: (15:34) @Malcolm I agree, but if we don't have a clear instruction to give it'll be hard
Cheryl Langdon-Orr (CLO): (15:34) should read true Greg
Kavouss Arasteh: (15:34) The audio is distorted
Malcolm Hutty: (15:35) The problem is that the only really clear instruction we can absolutely clearly be all agreed on is the text of the Report.. Anything else is potentially open to diverse views
jorge cancio (GAC Switzerland): (15:35) Where is this concept used exactly?
Andrew Sullivan: (15:35) excellent! Consider me carved
Milton: (15:35) likea turkey
Malcolm Hutty: (15:36) works for me, Jordan
jorge cancio (GAC Switzerland): (15:36) We would have a more meaningful debate if we knew where this term is used
Jordan Carter (.nz, WP1 rapporteur): (15:37) usually they are genuflection references, but if we want that group to take action, we should jsut refer to our open participatory structures
Pedro da Silva - [GAC Brasil]: (15:37) Where is this concept used and what is Jordan's suggestion?
Suzanne Woolf: (15:37) @Jordan I don't think I agree to assume that everyone who is part of such a thing as "the global internet community" will be participating in ICANN
Pedro da Silva - [GAC Brasil]: (15:37) I missed that
Jordan Carter (.nz, WP1 rapporteur): (15:38) Suzanne: I don't assumre that
Jordan Carter (.nz, WP1 rapporteur): (15:38) I jsut assume that people who want to affect things that are done in ICANN can participate in ICANN
Jordan Carter (.nz, WP1 rapporteur): (15:38) any more extensive claim would be wrong :-)
Andrew Sullivan: (15:38) Note that I don't super care about this, it was just a bit of tidiness
Holly J. Gregory (Sidley): (15:38) I ask that staff provide us with the slides with all of the answers and guidance reflected from this call
Kavouss Arasteh: (15:39) Andrew 1 1
Jordan Carter (.nz, WP1 rapporteur): (15:39) My suggestion is that if we say we need to consult the global multistakeholder community about anything, that "anything" has by definition to be within the scope of ICANN's mission. That part of the Internet community tha tcares about ICANN's mission may choose to participate in ICANN to have its voice taken into account.
Jordan Carter (.nz, WP1 rapporteur): (15:40) so my point simply was that we point to ICANN"s open structures and public participation processas as the way the "global Internet community" **does** things in respect of ICANN"s mission.
Holly J. Gregory (Sidley): (15:40) Jordan, please show us where in the bylaws you think this change should be made
Andrew Sullivan: (15:40) @Jordan: the reason I was worried about the cases I raised was just that there were things the GIC was supposed to do (evaluate, nominate people, and so on), and in those cases I was worried how you'd know who could act
jorge cancio (GAC Switzerland): (15:41) The question on "global internet community" cannot be seen as settled until we know where this concept is used, what contect it is, and what implications there are
Andrew Sullivan: (15:41) @Holly: I could go through in more detail and identify the places I see the actions are supposed to be taken
Andrew Sullivan: (15:41) would that help?
Andrew Sullivan: (15:41) (I'm sorry I didn't do this the first time, but IETF weeks are approximately the worst time for me to do anything.)
Rosemary Fei (Adler & Colvin): (15:42) Thanks, Andrew, I think that would be great.
Milton: (15:42) eliminate them all!
Jordan Carter (.nz, WP1 rapporteur): (15:42) Holly, it's just where the draft bylaws provide that the GIC has to act
Andrew Sullivan: (15:42) Ok, I'll try to do it tonight
Andrew Sullivan: (15:42) (NA Eastern Time)
Rosemary Fei (Adler & Colvin): (15:42) And no apologies needed, Andrew -- we're all working flat out, I think.
Holly J. Gregory (Sidley): (15:42) Jordan, if you and/or Andrew could suggest language it would be appreciated.
Suzanne Woolf: (15:42) @Jordan, ANdrew's suggestion helps, I'm just wary of ascribing either action or responsibiltiy to a group I can't define.
Malcolm Hutty: (15:42) I think that if SO/AC structure should be an F.B., it should have been done in the Report not at implementation stage
Jordan Carter (.nz, WP1 rapporteur): (15:43) Suzanne: that's why we shouldn't define it and leave it to be self-selected.
Jordan Carter (.nz, WP1 rapporteur): (15:43) Holly: I am not keen on providing language but I can try and write what it is that is meant
Rosemary Fei (Adler & Colvin): (15:43) Note that if you make something a FB, then it can only be changed with the consent of the rest of the community.
Leon Sanchez (Co-Chair ALAC): (15:43) I will need to disconnect from AC room
Leon Sanchez (Co-Chair ALAC): (15:44) Thanks everyone and my apologies for disconnecting early
Andrew Sullivan: (15:44) I strongly agree that changing the list of any fund. bylaws now would be a substantive change
Leon Sanchez (Co-Chair ALAC): (15:44) I will, however, remain on audio
Andrew Sullivan: (15:44) and would be a bad thing
Jordan Carter (.nz, WP1 rapporteur): (15:44) the changes to the bylaws that would be requuired to remove an AC would be subject to veto
Jordan Carter (.nz, WP1 rapporteur): (15:44) the bylaws provide for the Board to ADD an AC, but such an AC could only give advice, and if it was to be given any other role, that would be a bylaws change too which would also be subject to the community veto
jorge cancio (GAC Switzerland): (15:44) Agree with Thomas - if there is no basis in the report we should not classify this as a fundamental bylaw - which could also be perceived as a veto right for those in the club for accepting new entrants in the club, right?
Jordan Carter (.nz, WP1 rapporteur): (15:44) so it's not as if there are no protections
Brett Schaefer: (15:46) Jordan, they would be subject to EC rejection, correct? What is a veto in teh bylaws?
Jordan Carter (.nz, WP1 rapporteur): (15:46) the decisional participants can veto a change to the standard bylaws.
Jordan Carter (.nz, WP1 rapporteur): (15:46) yes, the EC.
Jordan Carter (.nz, WP1 rapporteur): (15:46) if they were fundamental, the EC would have to co-approve with the Board.
Jordan Carter (.nz, WP1 rapporteur): (15:46) either way there are controls in place
Brett Schaefer: (15:47) Under that, it would take 3 SO/ACs rejecting an dno more than 2 opposed? Just verifying the process.
Rosemary Fei (Adler & Colvin): (15:47) Brett, I can't find reference to Standard Bylaws in 25.2 (e) or (f). Please send details.
jorge cancio (GAC Switzerland): (15:47) co-approval of new entrants? that is problematic
Jordan Carter (.nz, WP1 rapporteur): (15:48) brett, off the top of my head I can't remember the numbers
Jordan Carter (.nz, WP1 rapporteur): (15:48) Jorge: pardon me?
Andrew Sullivan: (15:49) The opportunity fot Plato cave jokes here is almost irresistable
Milton: (15:49) shadows
Sabine Meyer: (15:50) those jokes are so ICANN53, Andrew :)
jorge cancio (GAC Switzerland): (15:50) Dear Jordan: I just said that by making the present structure of SO/AC a fundamental bylaw, we trigger the co-approval (as you explained), which would mean that a new SO/AC would need co-approval by the existing ones, which in turn seems a bit problematic at first sight
Milton: (15:50) Ah, ICANN 53, the good old days...
Ken/ITI: (15:50) lol
Jordan Carter (.nz, WP1 rapporteur): (15:51) Jorge: ah, I see. Yep, new SOs and ACs aren't fundamental. But it is long established in the proposal that whether or not an SO or AC is a decisional participant in the EC *is* fundamental.
Greg Shatan: (15:51) Green is just existing text moved from one part of the document to the other.
Greg Shatan: (15:51) Red text is the new text inserted by the legal team.
Milton: (15:51) Jorge: sounds like you are beginning to grasp some things about ICANN "redistricting" processes
jorge cancio (GAC Switzerland): (15:51) I'm learning from my colleagues
Ken/ITI: (15:52) is there still a process in place to manage requests of the lawyers? I imagine yes, but it sounds like there are increasing requests...
Andrew Sullivan: (15:52) @Sabine I'm very traditional in some ways
Ken/ITI: (15:52) and related costs...
Holly J. Gregory (Sidley): (15:52) Dear Co-Cahirs and Staff, Please provide for us a document showing all the answers to the questions in the slides.
Greg Shatan: (15:52) Holly's email is entitled "CCWG Proposal- ICANN Bylaws Reference Map"
Brett Schaefer: (15:53) Rosemary, I am trying to find the tracked bylaws where I saw it. It's been buried in e-mails.
Rosemary Fei (Adler & Colvin): (15:53) All edits to the draft come from counsel.
Andrew Sullivan: (15:53) Frankly, in respect of Kavouss's claim, I spent much of last week doing that work myself
Greg Shatan: (15:53) Holly's email was sent April 5.
Andrew Sullivan: (15:53) by cross refernce myself to the text
Rosemary Fei (Adler & Colvin): (15:54) We continue to try to clarify what we've drafted, make sure everything is included, etc.
Andrew Sullivan: (15:54) I think that if someone as legally dim as I can do it, anyone can
Andrew Sullivan: (15:54) (Especially while I was also busy in WG meetings, preparing other slides, talking to policy fellows, and so on.)
Greg Shatan: (15:55) Andrew, you sell yourself short.
Andrew Sullivan: (15:55) Too kind, Greg, but frankly I think Kavouss's demand is unreasonable. We all have to do a lot of work to achieve this, but we signed up to do it
jorge cancio (GAC Switzerland): (15:55) there are nice places to go on sunday in Helsinki... will it happen?
Brett Schaefer: (15:56) Rosemary, I can't find it. Could you send me the latest document? I need your e-mail anyway.
Rosemary Fei (Adler & Colvin): (15:57) Will do after call
Brett Schaefer: (15:57) Thanks.
Milton: (15:57) Can you repeat the day the meeting will be on?
Milton: (15:58) Sunday June 26?
Greg Shatan: (15:58) Andrew, agree 100%.
Tatiana Tropina: (15:58) Thanks!
Rosemary Fei (Adler & Colvin): (15:58) Unless we hear otherwise, I assume counsel is not needed at that meeting.
jorge cancio (GAC Switzerland): (15:59) a sunday afternoon...
Jordan Carter (.nz, WP1 rapporteur): (15:59) since the day will be 4am to 12am, it's OK tohave 8h in a meeting ;)
Sabine Meyer: (15:59) I may or may not have located a karaoke bar about 20min walking distance from the venue :)
Rosemary Fei (Adler & Colvin): (15:59) Great. Thanks.
Alan Greenberg: (16:00) There is a bbeach 20 minutes walking from the venue though!
Andrew Sullivan: (16:00) @Sabine: perhaps the meeting could be held _in_ the karaoke bar. If you can't sing your idea out, you can't include it.
Malcolm Hutty: (16:00) @Sabine, great stuff. we need the r&r
Jordan Carter (.nz, WP1 rapporteur): (16:00) Bye everyone, good call
Sabine Meyer: (16:00) not very inclusive of you, Andrew ;)
David McAuley (RySG): (16:00) Good bye all. What a call! Many q’s addressed, new metals created, and a walk through ICANN53 nostalgia
Sonigitu Ekpe 2: (16:00) Thank you.
Andrew Sullivan: (16:00) Didn't say you had to sing on key
Cheryl Langdon-Orr (CLO): (16:00) Thanks everyone, good progress today trust it will be a wrp at tomorrows call... Talk then... Bye for now...
Andrew Sullivan: (16:00) Thanks all
Holly J. Gregory (Sidley): (16:00) Please send us the write up of the solutions ASAP
FIONA ASONGA (ASO): (16:00) Good bye Thanks
Greg Shatan: (16:00) Thank you all!
Avri Doria: (16:00) bye
NIGEL HICKSON: (16:01) Thanks; good call indeed; coffee needed
Alberto Soto: (16:01) Thanks!!!
Dave Kissoondoyal: (16:01) thanks a bye to all
Pär Brumark (GAC Niue): (16:01) Thx all! Bye!
Thomas Schneider (GAC): (16:01) Thanks and bye.
Alberto Soto: (16:01) bYE!!
Gary Hunt - UK Government: (16:01) Goodnight from London!
Andrew Sullivan: (16:01) bye
Malcolm Hutty: (16:01) Thanks all, goodnight!
jorge cancio (GAC Switzerland): (16:01) thanks and bye all!
Mikhail Medrish: (16:01) Bye
SivasubramanianM: (16:01) thanks bye
Niels ten Oever: (16:01) bye all
Sabine Meyer: (16:01) good bye everyone