[bc-gnso] for consideration, as an alternative way to amend the RAA

[Steve DelBianco <sdelbianco@xxxxxxxxxxxxx>]

In Saturday's GNSO Work Session, we debated how to proceed 
amending<http://gnso.icann.org/issues/raa/r%20aa-improvements-proposal-final-%20report-18oct01-en.pdf>
 the RAA.

Contract parties are not willing to accept the process motion 
<https://community.icann.org/display/gnsocouncilmeetings/Motions+26+October+2011>
 offered by Kristina Rosette and supported by the BC.

Jeff Neuman (RySG) then suggested that Council adopt an amendment process that 
matches the Registry Agreement amendment process, as described in new gTLD 
Guidebook, Module 
5<http://www.icann.org/en/topics/new-gtlds/agreement-specs-clean-19sep11-en.pdf>,
 section 7.6 (below).   Jeff basically suggested copying this section and 
changing Registry to Registrar.


7.6 Amendments and Waivers.


(a) If ICANN determines that an amendment to this Agreement (including to the 
Specifications referred to herein) and all other registry agreements between 
ICANN and the Applicable

Registry Operators (the “Applicable Registry Agreements”) is desirable (each, a 
“Special Amendment”), ICANN may submit a Special Amendment for approval by the 
Applicable Registry Operators pursuant to the process set forth in this Section 
7.6, provided that a Special Amendment is not a Restricted Amendment (as 
defined below). Prior to submitting a Special Amendment for such approval, 
ICANN shall first consult in good faith with the Working Group (as defined 
below) regarding the form and substance of a Special Amendment. The duration of 
such consultation shall be reasonably determined by ICANN based on the 
substance of the Special Amendment. Following such consultation, ICANN may 
propose the adoption of a Special Amendment by publicly posting such amendment 
on its website for no less than thirty (30) calendar days (the “Posting 
Period”) and providing notice of such amendment by ICANN to the Applicable 
Registry Operators in accordance with Section 7.8. ICANN will consider the 
public comments submitted on a Special Amendment during the Posting Period 
(including comments submitted by the Applicable Registry Operators).


(b) If, within two (2) calendar years of the expiration of the Posting Period 
(the “Approval Period”), (i) the ICANN Board of Directors approves a Special 
Amendment (which may be in a form different than submitted for public comment) 
and (ii) such Special Amendment receives Registry Operator Approval (as defined 
below), such Special Amendment shall be deemed approved (an “Approved 
Amendment”) by the Applicable Registry Operators (the last date on which such 
approvals are obtained is herein referred to as the “Amendment Approval Date”) 
and shall be effective and deemed an amendment to this Agreement upon sixty 
(60) calendar days notice from ICANN to Registry Operator (the “Amendment 
Effective Date”). In the event that a Special Amendment is not approved by the 
ICANN Board of Directors or does not receive Registry Operator Approval within 
the Approval Period, the Special Amendment will have no effect. The procedure 
used by ICANN to obtain Registry Operator Approval shall be designed to 
document the written approval of the Applicable Registry Operators, which may 
be in electronic form.


(c) During the thirty (30) calendar day period following the Amendment Approval 
Date, Registry Operator (so long as it did not vote in favor of the Approved 
Amendment) may apply in writing to ICANN for an exemption from the Approved 
Amendment (each such request submitted by Registry Operator hereunder, an 
“Exemption Request”). Each Exemption Request will set forth the basis for such 
request and provide detailed support for an exemption from the Approved 
Amendment. An Exemption Request may also include a detailed description and 
support for any alternatives to, or a variation of, the Approved Amendment 
proposed by such Registry Operator. An Exemption Request may only be granted 
upon a clear and convincing showing by Registry Operator that compliance with 
the Approved Amendment conflicts with applicable laws or would have a material 
adverse effect on the long- term financial condition or results of operations 
of Registry Operator. No Exemption Request will be granted if ICANN determines, 
in its reasonable discretion, that granting such Exemption Request would be 
materially harmful to registrants or result in the denial of a direct benefit 
to registrants. Within ninety (90) calendar days of ICANN’s receipt of an 
Exemption Request, ICANN shall either approve (which approval may be 
conditioned or consist of alternatives to or a variation of the Approved 
Amendment) or deny the Exemption Request in writing, during which time the 
Approved Amendment will not amend this Agreement; provided, that any such 
conditions, alternatives or variations shall be effective and, to the extent 
applicable, will amend this Agreement as of the Amendment Effective Date. If 
the Exemption Request is approved by ICANN, the Approved Amendment will not 
amend this Agreement. If such Exemption Request is denied by ICANN, the 
Approved Amendment will amend this Agreement as of the Amendment Effective Date 
(or, if such date has passed, such Approved Amendment shall be deemed effective 
immediately on the date of such denial), provided that Registry Operator may, 
within thirty (30) calendar days following receipt of ICANN’s determination, 
appeal ICANN’s decision to deny the Exemption Request pursuant to the dispute 
resolution procedures set forth in Article 5. The Approved

Amendment will be deemed not to have amended this Agreement during the pendency 
of the dispute resolution process. For avoidance of doubt, only Exemption 
Requests submitted by Registry Operator that are approved by ICANN pursuant to 
this Section 7.6(c) or through an arbitration decision pursuant to Article 5 
shall exempt Registry Operator from any Approved Amendment, and no exemption 
request granted to any other Applicable Registry Operator (whether by ICANN or 
through arbitration) shall have any effect under this Agreement or exempt 
Registry Operator from any Approved Amendment.


(d) Except as set forth in this Section 7.6, no amendment, supplement or 
modification of this Agreement or any provision hereof shall be binding unless 
executed in writing by both parties, and nothing in this Section 7.6 shall 
restrict ICANN and Registry Operator from entering into bilateral amendments 
and modifications to this Agreement negotiated solely between the two parties. 
No waiver of any provision of this Agreement shall be binding unless evidenced 
by a writing signed by the party waiving compliance with such provision. No 
waiver of any of the provisions of this Agreement or failure to enforce any of 
the provisions hereof shall be deemed or shall constitute a waiver of any other 
provision hereof, nor shall any such waiver constitute a continuing waiver 
unless otherwise expressly provided. For the avoidance of doubt, nothing in 
this Section 7.6 shall be deemed to limit Registry Operator’s obligation to 
comply with Section 2.2. meanings:


(e) For purposes of this Section 7.6, the following terms shall have the 
following

(i) “Applicable Registry Operators” means, collectively, the registry operators 
of the top-level domains party to a registry agreement that contains a 
provision similar to this Section 7.6, including Registry Operator.

(ii) “Registry Operator Approval” means the receipt of each of the following: 
(A) the affirmative approval of the Applicable Registry Operators whose 
payments to ICANN accounted for two-thirds of the total amount of fees 
(converted to U.S. dollars, if applicable) paid to ICANN by all the Applicable 
Registry Operators during the immediately previous calendar year pursuant to 
the Applicable Registry Agreements, and (B) the affirmative approval of a 
majority of the Applicable Registry Operators at the time such approval is 
obtained. For avoidance of doubt, with respect to clause (B), each Applicable 
Registry Operator shall have one vote for each top-level domain operated by 
such Registry Operator pursuant to an Applicable Registry Agreement.

(iii) “Restricted Amendment” means the following: (i) an amendment of 
Specification 1, (ii) except to the extent addressed in Section 2.10 hereof, an 
amendment that specifies the price charged by Registry Operator to registrars 
for domain name registrations, (iii) an amendment to the definition of Registry 
Services as set forth in the first paragraph of Section 2.1 of Specification 6, 
or (iv) an amendment to the length of the Term.

(iv) “Working Group” means representatives of the Applicable Registry Operators 
and other members of the community that ICANN appoints, from time to time, to 
serve as a working group to consult on amendments to the Applicable Registry 
Agreements (excluding bilateral amendments pursuant to Section 7.6(d)).