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Comments of the Noncommercial Stakeholders Group

  • To: "comments-draft-new-bylaws-21apr16@xxxxxxxxx" <comments-draft-new-bylaws-21apr16@xxxxxxxxx>
  • Subject: Comments of the Noncommercial Stakeholders Group
  • From: "Mueller, Milton L" <milton@xxxxxxxxxx>
  • Date: Sat, 21 May 2016 15:45:23 +0000

Non Commercial Stakeholder Group Comments on the Draft ICANN Bylaws

NCSG believes that on the whole the legal team made a good faith effort to 
accurately translate the work of the CCWG on Enhanced Accountability and the 
work of the CWG on IANA Stewardship into new bylaws for ICANN. In a few areas 
some corrections are needed.

Regarding the "grandfathering" clauses in Section 1.1 (d) (ii), NCSG supports 
the comments of the IANA Stewardship Transition Coordination Group (ICG) and 
the comments of the CCWG-Accountability. We believe that the final bylaws 
should remove provisions B, C, D and E of Section 1.1 (d)(ii). These were not 
part of the accepted proposal, and by referencing as-yet-unwritten documents 
and exempting them from challenges they create unacceptable risks.

Regarding Section 1.1 (d) (ii) A, which grandfathers the Registry Agreement 
(RA) and Registrar Accreditation Agreement (RAA), NCSG believes that 
grandfathering of RA and RAA renewals is acceptable only if these renewals do 
not include any new terms. Any new terms would need to be within the scope and 
mission of ICANN, and should be clearly and unambiguously subject to challenge 
if members of the affected community believe they are outside of ICANN's 

Regarding  Section 27.3 (a) we endorse the comments of the CCWG-Accountability. 
The language is inconsistent with the CCWG May 13, 2016 7 Proposal, Annex 6 and 
may lead to some interpretations that formal approval is required from every 
Chartering Organization. As it has been discussed on the CCWG Accountability 
mailing list and during the last CCWG calls, the formal approval of all 
chartering organisation has not been the intent of the Annex 6 of the report. 
Therefore, the decision process for the Framework of Interpretation-HR should 
be aligned with the approval process from the CCWG Charter, which does not 
require the approval of all Chartering Organizations.

Furthermore, the language stating that the FOI-HR shall have no force of effect 
unless and until a FOI is approved is inconsistent with the CCWG Proposal. The 
Proposal reads: the Core Value is not in force "until" the FOI is developed. So 
'unless and' should be removed.

A solution would be to draft the bylaw in the following manner, largely in line 
with the language of the Annex 6 of the CCWG Accountability report. In this 
regard, we support the language proposed by CCWG accountability lawyers on the 
mailing list which was forwarded by Mathieu Weill on May 1 [1], as can be found 
underneath, except for the removal of 'unless and' to ensure consistency with 
the CCWG proposal and for the purpose of greater clarity.

Section 27.3. HUMAN RIGHTS

(a) The Core Value set forth in Section 1.2(b)(viii) shall have no force or 
effect until a framework of interpretation for human rights ("FOI-HR") is (i) 
approved for submission to the Board by the CCWG-Accountability as a consensus 
recommendation in Work Stream 2 and (ii) approved by the Board, in each case, 
using the same process and criteria as for Work Stream 1 Recommendations.

(b) No person or entity shall be entitled to invoke the reconsideration process 
provided in Section 4.2, or the independent review process provided in Section 
4.3, based solely on the inclusion of the Core Value set forth in Section 
1.2(b)(viii) (i) until after the FOI-HR contemplated by Section 27.3(a) is in 
place or (ii) for actions of ICANN or the Board that occurred prior to the 
effectiveness of the FOI-HR.

Comments also attached as a pdf file.

Attachment: NCSGCommentsontheDraftICANNBylaws.pdf
Description: NCSGCommentsontheDraftICANNBylaws.pdf

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