Please review ICANN Expected Standards of Behavior here: https://www.icann.org/resources/pages/expected-standards-2016-06-28-en.

Document being displayed here: https://docs.google.com/document/d/1Hh8Wj3IwXvi91Am1k4Zoooct2zmPOmVe1pLmjQLuQuo/edit#

Page 12, at least for me

That's just it Alan - the Board will do what it wants when it comes to the $$$ - ex - auction funds for reserve fund

To Alan's comment, I think the addition of (e) gives ICANN some flexibility without being unreasonably demanding.

We hope so @Heather

As to authority, to the extent that this restriction is considered consideration of the contract between applicant and ICANN, I disagree that it isn't enforceable.

In other words, entirely reasonable for the applicant to apply on the basis of understanding in advance how the application fee is spent.

I strongly supported the floor.

:-) @Paul

a

Agree with Anne

Thanks for clarifying @Anne

@Alan - and the time to do that is when the approve the AGB.

@Paul. Issues arise after AGB is published and after applications are accepted so Board may have to act.

I think we need to be careful of going down the "invent the parade of horribles" path. We can't plan for everything. As Paul said, the Board is going to be restricted by California corporations law in any event, and there are private legal mechanisms available to step in if it's necessary (which we hope it isn't, but frankly, what we put in the AGB won't be the decisive factor as to what the Board does).

But the ICANN Board has to explain its decisions, and there are accountablility mechanism in place to challenge any decision if the party aggrieved believes that exists.

Like .xxx, ICANN could claim that by approving that TLD it would make the corporation look bad. But that would not violate the Bylaws or the Applicant Guidebook

They would be exercising good faith (which satisfies the duty of care) and thus the loophole

An accountability mechanism by definition would fail if we allowed the new language in

.xxx classic example of outside political pressure that could lead the ICANN Board to feel pressure to make a bad decision and hang their hats on "fiduciary duties"

Gosh we need like a Hansard for this sort of thing

There is lots of different reasons in the Guidebook where the Board could reject an application

I just don't think we are prescient enough.

@Justine - you're quite right re Hansard. We need to be sure that the recommendations include an explanation of rationale so that implementation can happen consistently with the intention behind the recommendation itself.

I support the intent of the amended language.

The Verb "exercise" is the main problem here. "Exercising fiduciary duties" means meeting, conferring in good faith and making a reasonable decision

That's very different that the fiduciary duty itself

Bylaws 1.2(a) In performing its Mission, ICANN must operate in a manner consistent with these Bylaws for the benefit of the Internet community as a whole, carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law, through open and transparent processes that enable competition and open entry in Internet-related markets.

Perhaps "fiduciary duty" requiring rejection

But the fiduciary duties exist in the law, not detached in a cloud

@Paul - agreed Fiduciary Duties are in the law.

@Alan - it already says "unless required under specific laws..."

Exactly, @Alan, I worry about lacunae in the AGB.

@Alan - The community did not support the view you have expressed.

@Jeff: then we only can create rules for the next round - not for future rounds.

I agree with Alan

@Jeff: I think the words you offered may be a good compromise.

Can someone type them in as a 3rd option that we can evaluate together?

the ICANN Board's

ICANN does not have fiduciary duties. The Board does.

+1 Kathy, ICANN Board's fiduciary duties

@Alan - Yep, ICANN Board's

"or by" doesn't make sense as fiduciary duties are rooted only in applicable laws. Could be "for example..."

Jeff's suggestion works I think

Agreed

@Steve, what text are we striking out?

@Justine, just struck what I believe is supposed to be removed

@Steve, yes, saw, thanks

Same question: where do fiduciary duties comes from if not under specific laws?

To put a really precise point on Alan's earlier point ("ICANN does not have fiduciary duties. The Board does.") - it's actually the individual Board members who owe fiduciary duties, not the Board as a whole or as an entity. Further, personal liability attaches to each Board member as an individual if he/she breaches fiduciary duties.

So we're directing our caution here at Board members as individuals here.

I'm not following Kathy

So ... ICANN Board members' fiduciary duties?

"Unless required under specific laws, for example individual ICANN Board members' fiduciary duties, ICANN must..."

disagree Paul

@Kathy - why?

Where do fiduciary duties come from?

the law

Do we have a Board liaison on the call?

that might do it...

I dropped my hand, happy to move on to the next point, and think that wordsmithing something so nuanced is much too hard on the fly to get right. In terms of dealing with this offline and afterwards, I think we need to frame this appropriately from the mindset of this is guidance for individual board members, not Org or Board as a whole.

@Jeff - let's do please avoid creating a giant loophole here

Becky and I are. I can go back and check

What is it that Avri/Becky will go back and check??

As I understand it the wording in that paragraph. Will talk to the co-chairs off line to make sure I have the question right.

Does this tie back to the Accountability Mechanism topic?

There is no appeals mechanism intended....the recourse was supposed to be refund

should we clarify?

Then just say "refunds"

If you can confirm that, @Jeff, @Cheryl, because I see things in d. Dependencies.

if applications are withdrawn?

let's clarify that too :-)

+1 Kathy

good!

hand

@Steve - and application is withdrawn as a consequen e

@Paul, we have covered that!

Agree with Jeff

OK- if it is ground covered, OK to move on

I submitted comment on Package 2

Hmm, I don’t recall ever seeing it.

Thanks for forwarding Anne

good change

+1 to Justine's change

Well, d is Dependencies :)

@Jeff, I'm not disagreeing with you, I'm just saying lift that second bullet from the "However" paragraph and place it another paragraph, like "Also," perhaps?

It depends on what the Board does with Closed Generics in the next round...

@Steve, thanks, I think "In addition," sounds better than "Also," :)

:)

How Closed Generics are going to be treated will be in the new AGB - either because we sent something to them or they decide on their own because we failed.

Because I don't know what "as part of" means.

The Board does not want to make policy. They may just kick it back and say "there is no policy" and "there is GAC Advice - so go back and work it out.

It's very important to include dissenting views

Group thinks it is very late and we only have 2 minutes left. :-)

add some language

What is a strong comment and how is it measured against weak comments?

just a summary of what happened

We can start up again from here next tie we dive into this material

Dissenting Views are important to in relation to obtaining public comment.

I can accept that compromise :-)

+1 Jeff - agree.

Noted with thanks @Kathy

sounds good

Tx!

Let's just make sure these dissenting views are clearly marked

Yes

NEXT CALL: Thursday, 04 June 2020 at 20:00 UTC for 90 minutes.

And let's also make sure that dissenting view designation don't give the impression that they are more than individual views

When are Package 4 comments due?

Good plan

Yup

Thank you

Bye all, thanks Jeff. Bye Julie!