on ICANN Evolution and Reform
Fourth Supplemental Implementation Report
8 December 2002
In this report, the ICANN Evolution and Reform Committee (ERC) discusses
and recommends adoption by the ICANN Board of a Transition Article and
of minor amendments to the New
Bylaws adopted 31 October 2002 in Shanghai:
a. On 31 October 2002, the ICANN Board adopted New
Bylaws, to become effective upon the Board's later adoption of a
Transition Article setting forth the procedures for moving from the
Bylaws then in effect to the New Bylaws. On 24 November 2002, the ERC
a proposed Transition Article and invited
public comment on it. Several very helpful comments were received,
prompting the ERC to make various changes to the language it proposed
for the Transition Article. The revised
language proposed for the Transition Article accompanies this report.
b. In adopting the New Bylaws on 31 October 2002, the ICANN Board discussed
a few issues that required further consideration, and might result in
changes to some of the provisions that were adopted. In addition, various
needed technical changes in the New Bylaws have been identified since
their adoption. The ERC has prepared revised
language for several provisions of the New Bylaws to respond to
these concerns, which also accompanies this report.
The ERC recommends that the Board adopt the new Transition Article and
the revised language of the New Bylaws at the ICANN
annual meeting in Amsterdam on 15 December 2002.
I. Revisions to Proposed Transition Article
On 24 November 2002, the ERC posted proposed
language for the Transition Article. The ERC invited comment on the
proposed language, and several helpful comments were received. As a result
of these comments and further analyses and discussions, the ERC has prepared
proposed Transition Article that accompanies this report.
The significant revisions include:
XX, Section 2 (Board of Directors): In its 24
November 2002 report, the ERC proposed that members of the current
Board who are willing to do so would serve on a "Transition Board"
that would be replaced by a "New Board" once at least ten
non-ex officio members of that "New Board" have been
selected through the mechanisms set forth in the New Bylaws. The Transition
Board, like the current Board, could therefore have as many as nineteen
The New Board will (once the ccNSO design is completed and included
in the New Bylaws) consist of fifteen Directors as provided in the New
Bylaws (Article VI,
Section 2(1)). The New Board will also have six non-voting liaisons,
as stated in Article
VI, Section 9.
The intention of the Transition Article is that the six non-voting
liaisons would be seated at the creation of the New Board, at the same
time as the Directors selected under the New Bylaws are seated. A sentence
has been added to Article
XX, Section 2(1) to make this intention clear. In addition, a sentence
has been added to Article
XX, Section 2(5) to more specifically state that Directors and non-voting
liaisons selected after the New Board is created will be seated once
they are selected.
Finally, a new paragraph (Article
XX, Section 2(7)) has been added to make clearer how Committees
of the Board (Audit Committee, Reconsideration Committee, etc.) and
temporary committees (IDN Committee) will continue once the New Board
XX, Section 5 (GNSO): Language has been added to Article
XX, Section 5(4) to make clear that the two non-voting liaisons
to the GNSO Council from the At-Large Advisory Committee
and from the Governmental Advisory Committee should be seated
as soon as they are appointed.
A sentence has been added at the end of Section
5(4) to clarify that upon creation of the GNSO Council (which occurs
as soon as the Transition Article is adopted) committees, task forces,
and similar groups appointed by the DNSO Names Council will be transferred
to the GNSO Council, with the same charters, membership, and ongoing
activities. This is consistent with the overall goal of the Transition
Article to allow the GNSO to continue the DNSO's work without interruption.
A minor revision to Article
XX, Section 5(6) has been made to state that the terms of the constituency
representatives on the GNSO Council shall not last longer than the representatives'
existing terms on the DNSO Names Council. The language proposed on 24
November 2002 would have had the unintended effect of extending the
terms of Council members that otherwise would have expired before the
ICANN annual meeting in 2003. This effect would have been inconsistent
with the overall goal of a seamless transition from DNSO to GNSO.
XX, Section 7 (Advisory Committees and Technical Liaison Group):
Language has been added to Article
XX, Section 7(2) and (3) to confirm that the Technical Liaison Group
and Security and Stability Advisory Committee should select their delegates
to the Nominating Committee as soon as possible. Although this principle
is already stated in Article
XX, Section 2(4) (concerning the Nominating Committee's start-up),
its repetition for these two groups serves as a reminder that the appointment
of delegates to the Nominating Committee is a matter of some urgency
for all groups entitled to appoint them.
XX, Section 7(5)(a) has been revised to state that nominations to
the Interim At-Large Advisory Committee should be made by the At-Large
Organizing Committee rather than the At-Large Advisory Committee-Assistance
Group. This change is to conform to the preferred practice of those
that are members of these two groups.
II. Revised Provisions of New Bylaws Adopted in Shanghai
The ERC has analyzed the issues raised at the Shanghai Board meeting,
and as a result recommends three minor amendments to the New Bylaws adopted
in Shanghai. In addition, the ERC recommends two technical corrections
to the adopted New Bylaws:
At the Shanghai meeting, it was noted that Article
IV, Section 2(16), which concerns protections against abuse of the
reconsideration process, allows dismissals based on the "unwillingness"
of parties seeking reconsideration to participate in the public comment
period concerning the contested action, and that "unwillingness,"
as a state of mind, could be difficult to establish.
The ERC agrees that a less subjective measure should be employed. Instead
of an "unwillingness" standard, the ERC
recommends that dismissal be proper "where the affected party
had notice and opportunity to, but did not, participate in the public
comment period relating to the contested action".
B. Costs of Independent Review
Article IV, Section
3(12) of the New Bylaws as adopted in Shanghai states a firm rule
that the non-prevailing party in an independent review proceeding will
always bear the full costs of the IRP Provider. At the Shanghai meeting,
the Board discussed a proposal that there be some flexibility to shift
these costs to ICANN in the event that the IRP determines that a challenger,
even though unsuccessful, acted reasonably and in the public interest.
The ERC agrees that there should be flexibility to allow apportionment
of the costs of the IRP Provider between the parties based on such factors
as the reasonableness of their positions and their contribution to the
public interest. There are possible circumstances where a party
either the challenger or ICANN will not prevail on technical
or other grounds, even though that party's position was reasonable and
in the public interest, and was not otherwise trivial or abusive. In
these circumstances, the ERC believes it is appropriate for up
to half of the costs of the IRP Provider to be shifted to the prevailing
party, so that the proper incentives are in place to use the IRP
C. ALAC Start-up Funding
At the Shanghai meeting, the Board discussed a recommendation that
ICANN fund the expenses of members of the At-Large Advisory Committee
(ALAC) in order to support, during its start-up period, the viability
of this new component of ICANN. This appears not to be a bylaws matter,
but a matter to be considered in the ICANN budget process. Article
XI, Section 6 of the New Bylaws expressly authorizes the Board to
authorize reimbursement of members of Advisory Committees (including
the ALAC) for their actual and necessary expenses.
On a somewhat related point, it was noted at the Shanghai meeting that
Article X, Section
4(2), which generally obligates ICANN to provide operational and
administrative support to the GNSO, includes a second sentence that
can be read to prohibit funding of travel expenses for GNSO participants.
In general, the purpose of the second sentence is to ensure that ICANN
is not obligated to reimburse the travel expenses of GNSO Council
members. Where GNSO Council members are participating as representatives
of organizational stakeholders, such reimbursement by ICANN should not
be required. In other cases reimbursement of travel expenses may be
more appropriate. The wording
of Section 4(2) has been revised to provide that reimbursement decisions
are part of the Board's overall budget responsibility, and reimbursement
of travel expenses of GNSO Council members should not be either required
or prohibited by the bylaws.
D. GNSO PDP Schedule
At the Shanghai meeting, several participants expressed concern that
the deadlines in the GNSO
policy-development process (PDP) could make it difficult for some
participants, particularly those not accustomed to operating in the
English language, to contribute to the policy-development process. Although
the ERC is quite sensitive to the circumstances of those who do not
read and write English as their native language, the ERC does not recommend
changes to the time periods in the PDP at this time.
The GNSO PDP reflects a balance between the need to act "with
a speed that is responsive to the needs of the Internet" while
"obtaining informed input from those entities most affected".
(See Core Value 9.)
The PDP was developed after extensive analysis, including significant
public comment, under the auspices of the Names
Policy Development Process Assistance Group. Originally tasked
with developing a "defined timescale for completing the policy
development leading to a recommendation to the Board, normally in the
range of 60 days or less", the Assistance Group after considerable
that the timescale instead normally should be 95 days long, based
on concerns similar to those raised at the Shanghai meeting.
The resulting PDP provides that each policy-development process will
have at least two public comment periods totaling at least 40 days.
Additionally, constituencies must comment during a 35-day period, and
the PDP also obligates the responsible task forces to gather information
on the proposed policies' effects. Moreover, the PDP specifically authorizes
the Board to extend
the timeline in extraordinary circumstances.
In view of the extensive bottom-up process used to develop the PDP,
during which extensive comments were received and addressed, and the
careful balance that is necessary between being responsive and deliberative,
the ERC believes that the PDP should be allowed to go into operation
with the timelines adopted in Shanghai. Under Article
IV, Section 4 of the New Bylaws, the GNSO's operation will be reviewed
beginning within the next year; at that time it will be possible to
adjust the PDP's deadlines if needed based on experience with its operation
in its first year.
E. Definition of "Public Policy"
At the Shanghai meeting, the Board discussed a proposal to limit the
meaning of the term "public policy", as used in the provisions
relating to the Governmental Advisory Committee (GAC), by adding the
phrase "in effect in those entities that are members of the GAC
at the time of invoking the provisions of these Articles."
After analysis, the ERC recommends that this change not be made. Within
the ICANN structure, the Governmental Advisory Committee is the body
responsible for providing advice on the activities of ICANN as they
relate to concerns of governments. It is, as stated in Article
XI, Section 2(1)(b), open to all national governments. Several dozen
governments already participate in the GAC, and the GAC is actively
seeking additional participation.
It is vital to ICANN's successful operation that it have ready access
to the views and expertise of governments on matters concerning the
interaction between ICANN's responsibilities and those of governments.
Although the governments that actively participate in the GAC may have
the most direct knowledge of the public policies in effect in their
own countries, their advice as to public policies in other countries
is also quite valuable to ICANN, because they have become familiar with
the policies followed by other governments based on their routine interactions
with them. In addition, it would be harmful to ICANN if the scope of
the GAC's advice was constrained to prohibit it from providing ICANN
with advice about interactions between ICANN policies and emerging public
F. Membership of ICANN President on the Board
At the Shanghai meeting, the Board discussed a proposal that the President
not be a voting member of the Board. As discussed at the time, this
proposal presents issues that are interwoven with other issues concerning
the Board's own operation, that are likely to be considered in a coordinated
way in the Board assessment launched by resolution
02.134. The ERC therefore believes this proposal should be considered
in that assessment.
G. Technical Corrections
In its analysis since the Shanghai meeting, the ERC has identified
two technical corrections that should be made:
1. Although a change was made to the proposed ALAC provisions (Article
XI, Section 2(4)(f)) before they were adopted in Shanghai to indicate
that the ALAC would designate a liaison to the GNSO Council, a corresponding
change was not made to the GNSO provisions (Article
X, Section 3(1)). An appropriate
correction has been proposed to the GNSO provision in the accompanying
2. As adopted in Shanghai, Article
XI, Section 6 reads:
Committee members shall receive no compensation for their services
as a member of a committee, other than reimbursement of expenses
if and as determined appropriate by the ICANN Board. The Board may,
however, authorize the reimbursement of actual and necessary expenses
incurred by committee members, including Directors, performing their
duties as committee members.
To avoid the redundancy between the first and second sentences, the
suggests that the second half of the first sentence (that is,
the words following the comma) be eliminated.
III. Additional Comment
One comment received advocated that the bylaws specify a particular supermajority
vote by which the Nominating Committee must act. Although the ERC shares
the commentator's belief that the Nominating Committee should operate
by consensus to maintain high moral authority, the ERC does not believe
that the bylaws should specifically prescribe the precise procedures that
the Nominating Committee must follow. Article
VII, Section 7 of the New Bylaws gives the Nominating Committee the
authority to adopt its own operating procedures, which shall be published,
to best perform its important task. The ERC believes it is important that
the Nominating Committee have the authority to establish its own procedures,
and that the bylaws should not seek to be overly prescriptive in this
regard. The ERC will apprise the initial Nominating Committee of the comment
regarding supermajority voting, as well as the intent that the Nominating
Committee seek to operate according to principles promoting consensus
and other features conducive to broad acceptance of its work.
Committee on ICANN Evolution and Reform
8 December 2002
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