ICANN Jurisdiction, CCWG-Accountability WS2 Questionnaire

ICANN Jurisdiction Questionnaire

* For this Questionnaire [above], “ICANN’s jurisdiction” refers to (a) ICANN being subject to U.S. and California law as a result of its incorporation and location in California, (b) ICANN being subject to the laws of any other country as a result of its location within or contacts with that country, or (c) any “choice of law” or venue provisions in agreements with ICANN.

For translations of the questionnaire:
Language:  Word Doc /  PDF
English:  EN  /  EN
Arabic:  AR /  AR
Spanish:  ES  /  ES
French:  FR  /  FR
Russian:  RU /  RU
Chinese:  ZH  / ZH

ICANN's information and explanation:

CCWG-Accountability Work Stream 2 Issues Jurisdiction Questionnaire | ICANN.org: "The newly-adopted ICANN Bylaws created several Work Stream 2 accountability subgroups. One of these subgroups, the Jurisdiction Subgroup, is addressing questions related to ICANN's jurisdiction, including how choice of jurisdiction and applicable laws for dispute settlement impact ICANN's accountability and the actual operation of policies. The Jurisdiction Subgroup has put out a questionnaire seeking responses to several jurisdiction-related questions. The Subgroup is asking you to consider and respond to these questions with concrete, factual submissions. The questionnaire can be found at https://community.icann.org/x/UpXRAw and is available in each of the 6 languages supported by ICANN. You may respond to the questionnaire in any of these languages. Responses must be transmitted via email to ccwg-acctws2.jurisdiction.questionnaire @icann.org . Responses must clearly identify the individual responding and, where applicable, the organization for which the response is being submitted. Responses may be submitted at any point during the response period. The subgroup will accept responses until 23:59 UTC 17 April 2017." (emphasis added)

ICANN organizational provisions concerning "jurisdiction":

ICANN Articles of Incorporation as revised (emphasis added):
1. The name of this corporation is Internet Corporation for Assigned Names and Numbers (the "Corporation").
2. The name of the Corporation's initial agent for service of process in the State of California, United States of America is C T Corporation System.
3. This Corporation is a nonprofit public benefit corporation and is not organized for the private gain of any person. It is organized under the California Nonprofit Public Benefit Corporation Law for charitable and public purposes. The Corporation is organized, and will be operated, exclusively for charitable, educational, and scientific purposes within the meaning of § 501 (c)(3) of the Internal Revenue Code of 1986, as amended (the "Code"), or the corresponding provision of any future United States tax code. Any reference in these Articles to the Code shall include the corresponding provisions of any further United States tax code ....

ICANN Bylaws as revised (emphasis added):

ARTICLE 4: Section 4.7. COMMUNITY MEDIATION: ... (e) The mediator shall conduct the mediation in accordance with these Bylaws, the laws of California and the rules and procedures of a well-respected international dispute resolution provider, which may be the IRP Provider. The arbitration will be conducted in the English language consistent with the provisions relevant for mediation under the IRP Rules of Procedure and will occur in Los Angeles County, California, unless another location is mutually-agreed between the Mediation Administration and Board Mediation Representatives.

ARTICLE 6 EMPOWERED COMMUNITY
Section 6.1. COMPOSITION AND ORGANIZATION OF THE EMPOWERED COMMUNITY
(a) The Empowered Community ("EC") shall be a nonprofit association formed under the laws of the State of California ....

ARTICLE 16 POST-TRANSITION IANA ENTITY
Section 16.1. DESCRIPTION
ICANN shall maintain as a separate legal entity a California nonprofit public benefit corporation (["PTI"]) for the purpose of providing IANA services ....

Section 16.2. PTI Governance

(a) ICANN, in its capacity as the sole Member of PTI, shall elect the directors of PTI in accordance with the articles of incorporation and bylaws of PTI and have all other powers of a sole Member under the CCC except as otherwise provided in these Bylaws.

(b) No amendment or modification of the articles of incorporation of PTI shall be effective unless approved by the EC (pursuant to the procedures applicable to Articles Amendments described in Section 25.2, as if such Article Amendment referenced therein refers to an amendment of PTI's articles of incorporation).

(c) ICANN shall not amend or modify the bylaws of PTI in a manner that would effect any of the matters set forth in clauses (i) through (xiv) below (a "PTI Bylaw Amendment") if such PTI Bylaw Amendment has been rejected by the EC pursuant to the procedures described in Section 16.2(e):

(i) any change to the corporate form of PTI to an entity that is not a California nonprofit public benefit corporation organized under the CCC or any successor statute ....

ARTICLE 24 OFFICES AND SEAL

Section 24.1. OFFICES

The principal office for the transaction of the business of ICANN shall be in the County of Los Angeles, State of California, United States of America. ICANN may also have an additional office or offices within or outside the United States of America as it may from time to time establish ....

ARTICLE 27 TRANSITION ARTICLE
Section 27.1. WORK STREAM 2
(a) The Cross-Community Working Group on Enhancing ICANN Accountability ("CCWG-Accountability") was established pursuant to a charter dated 3 November 2014 ("CCWG-Accountability Charter"). The CCWG-Accountability Charter was subsequently adopted by the GNSO, ALAC, ccNSO, GAC, ASO and SSAC ("CCWG Chartering Organizations"). The CCWG-Accountability Charter as in effect on 3 November 2014 shall remain in effect throughout Work Stream 2 (as defined therein).
(b) The CCWG-Accountability recommended in its Supplemental Final Proposal on Work Stream 1 Recommendations to the Board, dated 23 February 2016 ("CCWG-Accountability Final Report") that the below matters be reviewed and developed following the adoption date of these Bylaws ("Work Stream 2 Matters"), in each case, to the extent set forth in the CCWG-Accountability Final Report:
....

(vi) Addressing jurisdiction-related questions, including how choice of jurisdiction and applicable laws for dispute settlement impact ICANN's accountability; ...

See also: UPDATE Feb 9, 2017: ICANN [Finally] Free to Proceed with the Delegation of .AFRICA Following Court Decision | DomainMondo.com

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DISCLAIMER

UPDATE: Trump Loses at Ninth Circuit, Stay of TRO "DENIED"

New ICANN Bylaws and Amended, Restated Articles of Incorporation

UPDATE note: links to the current ICANN Bylaws and Articles of Incorporation.

UPDATE 22 July 2017: Bylaws of ICANN | A California Nonprofit Public-Benefit Corporation | ICANN.org as amended 22 July 2017.

UPDATE May 27, 2016: The ICANN Board of Directors today adopted by Resolution 2016.05.27.01, the New ICANN Bylaws as revised on 26 May 2016 [PDF, 1.41 MB]. The Board further resolved (2016.05.27.02), "the New ICANN Bylaws will be deemed effective upon the expiration the IANA Functions Contract between ICANN and NTIA."  Also "Resolved (2015.05.27.05), the ICANN Board approves the posting of the draft Restated Articles of Incorporation for public comment on the ICANN website as soon as reasonably practicable." Read more here: New ICANN Bylaws - ICANN blog and  Approved Board Resolutions | Special Meeting of the ICANN Board 27 May 2016. New Restated Articles now posted for comment. [--end of UPDATE--]

The ICANN Board of Directors is scheduled to consider adoption of new ICANN Bylaws "on or about May 27, 2016."

"Once New ICANN Bylaws have been adopted, ICANN will notify NTIA. NTIA has stated that it needs to see that changes to the Bylaws have been adopted sufficient to implement the Transition Proposals before NTIA can complete its review of the Transition Proposals. Once adopted, the Bylaws are expected to [go] into effect in the event NTIA approves of the IANA Stewardship Transition Proposal and the IANA Functions Contract expires."--ICANN (emphasis and link added)

Embedded below is May 25, 2016, draft (redline) of new ICANN Bylaws:


Embedded below is the 25 May 2016 draft (redline) of ICANN's Amended and Restated Articles:



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DISCLAIMER

ICANN, IANA Transition, Implementation, WS2, CCWG-Accountability

Posted today on the CCWG-Accountability public mail list (emphasis and links added): 

--Start--

RE: Implementation and Work Stream 2 role for CCWG-Accountability

Dear Colleagues,

Attached is a communication to the Chartering Organizations, sent a few minutes ago, confirming that we are proceeding with an implementation oversight role.
Best
Mathieu

From: Mathieu Weill [CCWG Co-Chair]Friday April 1, 2016
To: James M. Bladel; Thomas Schneider; Alan Greenberg; Patrik Fältström; Louie Lee; Ocar at lacnic.net; Katrina Sataki.
cc : Akram Atallah; David Olive; Steve Crocker; Thomas Rickert; gnso.secretariat; Tom Dale; ACCT-Staff; ICANN At-Large Staff; Bart Boswinkel; León Felipe Sánchez Ambía; Jonathan Robinson; Kimberly Carlson; Olof Nordling; Julie Hedlund; Julia Charvolen; Lise Fuhr; Theresa Swinehart; Carlos Reyes

Dear Chartering Organizations,
We are writing to you to follow up on our email from 6 March (available here), and provide an update on the Work Stream 1 implementation  oversight and scoping for Work Stream 2. Hearing no objections from the Chartering Organizations, we have proceeded with an implementation oversight role to ensure that the implementation is consistent with the Work Stream 1 report.

To date, this work has been focused on the drafting of Bylaws and Articles of Incorporation. There is a critical path for the Bylaws drafting, and along with the CWG-Stewardship co-Chairs, we have instructed our legal teams to work with ICANN to draft the Bylaws. It is expected that a final draft of the proposed revisions to the Bylaws would be available for CCWG review by 2 April at the latest. The CCWG has two calls scheduled to facilitate its review of the Bylaws. Following CCWG review, the Bylaws would be published for an open community-wide public comment period.

It is important to remember that the overall transition schedule [see below] depends on completing this work. In order for the transition to take place by the end of the current contract between NTIA and ICANN on 30 September, ICANN must publish the Bylaws for a 30-day public comment period by 20 April, and the Board would need to approve the changes to the Bylaws by 27 May.

Once the Bylaws work is complete, we will turn our focus to:

• Completing the work on IRP [Independent Review Process] that goes beyond the Bylaws
• Finalizing the budget process in coordination with the CWG-Stewardship
• Undertaking Work Stream 2 (WS2)

You may have seen a call for WS2 volunteers on the ICANN website last week (available here). We ask that you also share this call for volunteers widely to ensure that all interested parties, including those outside of the ICANN ecosystem, are aware that they are welcome to participate in projects of WS2. It is important for our group to continue to strive for maximized diversity of our participants going forward.

We would like to emphasize that the CCWG-Accountability will remain open to anyone who wishes to join, and we will welcome informed individuals with relevant implementation and operational experience to join the CCWG-Accountability in this next phase. Finally, we are conscious of the
heavy workload the CCWG-Accountability has been for your appointed members, and we would like to ask once more for Chartering Organizations to re-confirm member participation, and appoint new replacement members if necessary.

Thank you,
Leon Sanchez, Thomas Rickert, and Mathieu Weill
CCWG-Accountability Co-Chairs

--End--

Overall Transition Schedule via prepared testimony at the March 17 Congressional Hearing:
• March 11 – June 11: NTIA assesses transition plan
• April 15: Draft revisions to ICANN bylaws released
• April 15 – May 15: Public Comment on ICANN bylaw revisions
• Mid – April: Root Zone testing begins
• April – May: Public review period on the RZM Contract (ICANN & Verisign)
• May 31: ICANN Board approves draft bylaw revisions
• June 15: NTIA submits plan to Congress for review
• June 16: Congressional review begins
• August – September New agreements are executed:
o Relationship agreements for the IANA including establishment of the PTI
o New RZM Contract
• October 1 Transition complete

See also on Domain Mondo:

• News Review [March27]: France Blasts IANA Proposal, Berkman to Assess ICANN
• News Review [March20]: ICANN, IANA, NTIA, Congress, the American People
• U.S. House Subcommittee, IANA Transition Hearing, March 17th Video

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DISCLAIMER

ICANN Was Originally Intended To Be A Membership Organization

One of the tragic facts in ICANN's history is that Jon Postel died before ICANN's first Board of Directors meeting:

"Without Postel as its peacekeeper, ICANN had trouble raising money and was forced to survive on fees from Network Solutions and a new crop of domain-name registrars that grew up under ICANN’s oversight, [Esther] Dyson says. Thus was born a financial conflict of interest that continues to this day: ICANN subsists on the very industry it purports to govern. Dyson says she “lost any faith, over time,” in ICANN’s ability to regulate the domain-name business." (source: MIT Technology Review)

One of the issues the Enhancing ICANN Accountability Cross Community Working Group (CCWG-Accountability) is now grappling with is whether ICANN should have an empowered membership capable of removing directors, etc. A look back indicates that is what was originally intended--

Resources - ICANN: Articles of Incorporation of Internet Corporation for Assigned Names and Numbers - As Revised November 21, 1998:  ".... 9. These Articles may be amended by the affirmative vote of at least two-thirds of the directors of the Corporation. When the Corporation has members, any such amendment must be ratified by a two-thirds (2/3) majority of the members voting on any proposed amendment." (emphasis added)

Also note the original ICANN Bylaws (6 Nov 1998): "ARTICLE II: MEMBERSHIP (This Article is reserved for use when the Corporation has members.)" (emphasis added)

In fact, ICANN staff produced a memo dated August 11, 1999, outlining options for membership as provided in the ICANN Articles and Bylaws then in effect:

"Analysis: Statutory Members Versus Nonstatutory Members for the ICANN AT-Large Membership .... One of the fundamental issues underlying the development of a process to create an ICANN "membership" that will select At-Large Directors of ICANN is to determine precisely what rights and/or powers those "members" will have... II. Rights of Statutory Members - California law provides that certain specific rights and powers automatically belong to any "member" of a non-profit corporation. A "member" includes "any person who, pursuant to a specific provision of a corporation's articles or bylaws, has the right to vote for the election of a director or directors or . . . has the right to vote on changes to the articles or bylaws." (5056). If the ICANN "membership" was created without any explicit limitations on these rights or powers, an ICANN member would be a Statutory Member, as we are using that term here, and would have the following rights and powers, as set forth in the California Nonprofit Corporation Law:
....
6. Members may bring derivative actions, subject to the usual conditions. (5710) No bond shall be required if enough members bring the action. (5710)
7. Most amendments to articles must be approved by Board and members (and any other persons specified in articles). (e.g. SOs). (5812)
8. Board must send annual report (as defined in 6321) to members within 120 days after the end of the fiscal year. (6321)
9. Membership lists and accounting books and records and minutes must be made available to members for proper purposes. (6330, 6333 and 6338)
10. Members may amend the bylaws; however, the bylaws may provide that the amendment may occur only with the approval of a specified person other than the Board. (e.g. SOs). ( 5150) Note, however, that the Board may amend the bylaws without the approval of members unless the action would materially and adversely affect the right of members as to voting or transfer.
11. Directors elected by members may be removed by members. (5222)
12. The bylaws must specify a quorum requirement. (5512)
13. Members can bring legal actions to....." (emphasis added)

In less than three months after the staff memo above was issued, the ICANN Board of Directors amended the ICANN Bylaws to prevent any possibility of "members"--

October 29. 1999, amended bylaws: "ARTICLE II: MEMBERSHIP - Section 1. GENERAL - The Corporation shall not have members..." (emphasis added)

Today the applicable bylaw provision preventing members is in Article XVII:

ICANN Bylaws: "ARTICLE XVII: MEMBERS - ICANN shall not have members, as defined in the California Nonprofit Public Benefit Corporation Law ("CNPBCL"), notwithstanding the use of the term "Member" in these Bylaws, in any ICANN document, or in any action of the ICANN Board or staff." (emphasis added)

And the rest is history. One of the ways ICANN was "captured" by special interests, was the elimination of any possibility of membership by amending the bylaws to prevent "membership." Now, the CCWG-Accountability is trying to "re-invent the wheel" and reform ICANN into what had originally been intended.

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