[soac-newgtldapsup-wg] On the COI Re: [Tdg-legal] Agenda and Information for 27 January TDG Call

[Eric Brunner-Williams <ebw@xxxxxxxxxxxxxxxxxxxx>]

Colleagues,

The TDG-Legal agenda includes the Continuing Operations Instrument, 
see 
http://blog.icann.org/2011/01/temporary-drafting-group-work-session-on-new-gtld-base-registry-agreement-issues-%e2%80%93-to-be-held-27-january-2011/
I've sent long notes on the subject of Continuity to Karla and Olof, 
and I've mentioned it several times on the working group list and in 
public comments, and pre-JAS with Patrick Jones (staff) as one of the 
components of the Registry Failover plan(s).
Below is the first draft I sent to Craig Schwartz, the supporting 
ICANN staffer yesterday, and at his suggestion I'll send it to the 
TDG-Legal list Tuesday, after the US three-day weekend.
Please think about needs-qualified applicants and:

1. Evaluation Criteria Question 50

2. Events leading to, and following, triggering one of the thresholds 
for an emergency transition.
The Evaluation Criteria is (a hideous spreadsheet) at:
http://icann.org/en/topics/new-gtlds/draft-evaluation-criteria-clean-12nov10-en.pdf

Comments to me please, or the list.

Eric
===

Craig,

I'm pleased to see the clarification that an enumerated list of
functions and not a period of time of generalized functions is the
purpose of the continuity requirement.

However, I have some questions.

1. What does "registrant protection" mean in the context of 
community-based registry election by the registrants?
To be concrete, suppose there is a .yiddish (Hebrew Script RtL IDN) 
community-based TLD, and one of the thresholds for an emergency 
transition is triggered. What exactly does "continuing operations" mean?
2. Continuing with this hypothetical, suppose the applicant obtains a 
commitment from some existing Latin Script registry operator, e.g., 
.SE, or some RtL Script IDN registry operator, prior to submitting its 
.yiddish application.
Why is the choice of letter of credit and cash escrow better options 
for meeting the goal of rewarding applicants who make early 
arrangements for the protection of registrants? The hypothetical .SE 
offer can be tested for existence, just as letters of credit and cash 
escrows may be test for existence, it provides the function to be 
executed, it can be objectively assessed in the evaluation, and is 
viable in the circumstances and jurisdictions relevant.
3. In a separate hypothetical, suppose an applicant using an existing 
registry services technical provider offers a nominal letter of credit 
and cash escrow commitment, citing the "bulk operation" and continuity 
of its contracting provider as the rational for declining to commit 
more than nominal resources for the protection of registrants.
How does implementation of the COI requirement avoid becoming a means 
of channeling new registry service contracts to existing registry 
operators?
4. The USD requirement in the cash escrow requirement will cause a 
currency conversion cost to the applicant. Assuming that one of the 
thresholds for an emergency transition is triggered, if the value of 
the cash escrow is used in the originating currency region, another 
currency conversion cost reduces the value of the cash escrow.
Is this the intended result?

5. Common to both the letter of credit and cash escrow forms of the 
COI, the applicant surrenders the right to use the value to prevent 
triggering of one of the thresholds for an emergency transition.
Is this the intended result?

6. While new registry operations will undertaken in developing 
economies, existing registry operations are mostly in developed economies.
Is the intended result of triggering of one of the thresholds for an 
emergency transition the transfer of value from developing economies 
to developed economies?
Eric
===