Fourth Supplemental Implementation Report of the Committee on ICANN Evolution and Reform
8 December 2002

Committee 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 posted 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.

Click here to view the revised proposed Transition Article of the New Bylaws.
Click here to view the proposed revisions to the New Bylaws adopted in Shanghai.

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 the revised proposed Transition Article that accompanies this report.

The significant revisions include:

A. Article 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 Directors.

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 is created.

B. Article 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.

C. Article 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.

Article 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:

A. Reconsideration

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 judiciously.

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 work concluded 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 policies.

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 amendment.

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 ERC 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

Click here to view the revised proposed Transition Article of the New Bylaws.
Click here to view the proposed revisions to the New Bylaws adopted in Shanghai.

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