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051040040 New gTLD Subsequent Procedures Working Group call
Julie Bisland
27:51
Please review ICANN Expected Standards of Behavior here: https://www.icann.org/resources/pages/expected-standards-2016-06-28-en.
Steve Chan
31:16
Document being displayed here: https://docs.google.com/document/d/1Hh8Wj3IwXvi91Am1k4Zoooct2zmPOmVe1pLmjQLuQuo/edit#
Steve Chan
31:25
Page 12, at least for me
Jim Prendergast
34:20
That's just it Alan - the Board will do what it wants when it comes to the $$$ - ex - auction funds for reserve fund
Heather Forrest
35:07
To Alan's comment, I think the addition of (e) gives ICANN some flexibility without being unreasonably demanding.
Cheryl Langdon-Orr
35:30
We hope so @Heather
Heather Forrest
36:01
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.
Heather Forrest
36:24
In other words, entirely reasonable for the applicant to apply on the basis of understanding in advance how the application fee is spent.
Alan Greenberg
36:31
I strongly supported the floor.
Cheryl Langdon-Orr
41:16
:-) @Paul
Kathy Kleiman
43:09
a
Kathy Kleiman
43:14
Agree with Anne
Cheryl Langdon-Orr
43:35
Thanks for clarifying @Anne
Paul McGrady
44:20
@Alan - and the time to do that is when the approve the AGB.
Anne Aikman-Scalese
48:05
@Paul. Issues arise after AGB is published and after applications are accepted so Board may have to act.
Heather Forrest
48:21
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).
Justine Chew
50:00
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.
Jeffrey Neuman
50:01
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
Jeffrey Neuman
50:24
They would be exercising good faith (which satisfies the duty of care) and thus the loophole
Jeffrey Neuman
50:49
An accountability mechanism by definition would fail if we allowed the new language in
Paul McGrady
51:50
.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"
Justine Chew
55:03
Gosh we need like a Hansard for this sort of thing
Jeffrey Neuman
56:30
There is lots of different reasons in the Guidebook where the Board could reject an application
Alan Greenberg
58:17
I just don't think we are prescient enough.
Heather Forrest
58:21
@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.
Justine Chew
59:45
I support the intent of the amended language.
Jeffrey Neuman
01:02:48
The Verb "exercise" is the main problem here. "Exercising fiduciary duties" means meeting, conferring in good faith and making a reasonable decision
Jeffrey Neuman
01:03:02
That's very different that the fiduciary duty itself
Kathy Kleiman
01:03:37
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.
Jeffrey Neuman
01:03:47
Perhaps "fiduciary duty" requiring rejection
Paul McGrady
01:05:38
But the fiduciary duties exist in the law, not detached in a cloud
Jeffrey Neuman
01:06:32
@Paul - agreed Fiduciary Duties are in the law.
Paul McGrady
01:06:41
@Alan - it already says "unless required under specific laws..."
Justine Chew
01:06:45
Exactly, @Alan, I worry about lacunae in the AGB.
Jeffrey Neuman
01:06:54
@Alan - The community did not support the view you have expressed.
Kathy Kleiman
01:07:37
@Jeff: then we only can create rules for the next round - not for future rounds.
Kathy Kleiman
01:07:45
I agree with Alan
Kathy Kleiman
01:08:09
@Jeff: I think the words you offered may be a good compromise.
Kathy Kleiman
01:08:29
Can someone type them in as a 3rd option that we can evaluate together?
Kathy Kleiman
01:09:59
the ICANN Board's
Alan Greenberg
01:10:06
ICANN does not have fiduciary duties. The Board does.
Justine Chew
01:10:24
+1 Kathy, ICANN Board's fiduciary duties
Jeffrey Neuman
01:10:30
@Alan - Yep, ICANN Board's
Paul McGrady
01:10:51
"or by" doesn't make sense as fiduciary duties are rooted only in applicable laws. Could be "for example..."
Anne Aikman-Scalese
01:10:56
Jeff's suggestion works I think
Kathy Kleiman
01:11:16
Agreed
Justine Chew
01:11:28
@Steve, what text are we striking out?
Steve Chan
01:12:22
@Justine, just struck what I believe is supposed to be removed
Justine Chew
01:12:41
@Steve, yes, saw, thanks
Paul McGrady
01:14:21
Same question: where do fiduciary duties comes from if not under specific laws?
Heather Forrest
01:14:33
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.
Heather Forrest
01:14:59
So we're directing our caution here at Board members as individuals here.
Paul McGrady
01:15:22
I'm not following Kathy
Justine Chew
01:15:31
So ... ICANN Board members' fiduciary duties?
Paul McGrady
01:16:23
"Unless required under specific laws, for example individual ICANN Board members' fiduciary duties, ICANN must..."
Kathy Kleiman
01:16:37
disagree Paul
Paul McGrady
01:16:45
@Kathy - why?
Paul McGrady
01:16:54
Where do fiduciary duties come from?
Paul McGrady
01:16:58
the law
christopher wilkinson
01:17:02
Do we have a Board liaison on the call?
Kathy Kleiman
01:17:25
that might do it...
Heather Forrest
01:17:41
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.
Paul McGrady
01:17:43
@Jeff - let's do please avoid creating a giant loophole here
avri doria
01:18:05
Becky and I are. I can go back and check
Alan Greenberg
01:19:07
What is it that Avri/Becky will go back and check??
avri doria
01:20:30
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.
Justine Chew
01:21:44
Does this tie back to the Accountability Mechanism topic?
Jeffrey Neuman
01:22:59
There is no appeals mechanism intended....the recourse was supposed to be refund
Kathy Kleiman
01:23:42
should we clarify?
Justine Chew
01:23:43
Then just say "refunds"
Justine Chew
01:24:29
If you can confirm that, @Jeff, @Cheryl, because I see things in d. Dependencies.
Kathy Kleiman
01:24:35
if applications are withdrawn?
Kathy Kleiman
01:24:52
let's clarify that too :-)
Anne Aikman-Scalese
01:25:01
+1 Kathy
Kathy Kleiman
01:25:04
good!
Paul McGrady
01:25:35
hand
Kathy Kleiman
01:25:46
@Steve - and application is withdrawn as a consequen e
Justine Chew
01:26:40
@Paul, we have covered that!
Kathy Kleiman
01:27:31
Agree with Jeff
Paul McGrady
01:27:35
OK- if it is ground covered, OK to move on
Anne Aikman-Scalese
01:30:00
I submitted comment on Package 2
Steve Chan
01:31:53
Hmm, I don’t recall ever seeing it.
Steve Chan
01:32:24
Thanks for forwarding Anne
Kathy Kleiman
01:35:28
good change
Anne Aikman-Scalese
01:35:43
+1 to Justine's change
Justine Chew
01:37:06
Well, d is Dependencies :)
Justine Chew
01:45:12
@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?
Paul McGrady
01:47:03
It depends on what the Board does with Closed Generics in the next round...
Justine Chew
01:47:45
@Steve, thanks, I think "In addition," sounds better than "Also," :)
Steve Chan
01:48:10
:)
Paul McGrady
01:49:42
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.
Justine Chew
01:50:29
Because I don't know what "as part of" means.
Anne Aikman-Scalese
01:50:35
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.
Kathy Kleiman
01:53:30
It's very important to include dissenting views
Paul McGrady
01:53:55
Group thinks it is very late and we only have 2 minutes left. :-)
Kathy Kleiman
01:54:34
add some language
Paul McGrady
01:54:49
What is a strong comment and how is it measured against weak comments?
Kathy Kleiman
01:54:52
just a summary of what happened
Cheryl Langdon-Orr
01:55:05
We can start up again from here next tie we dive into this material
Anne Aikman-Scalese
01:55:16
Dissenting Views are important to in relation to obtaining public comment.
Kathy Kleiman
01:55:37
I can accept that compromise :-)
Paul McGrady
01:55:48
+1 Jeff - agree.
Cheryl Langdon-Orr
01:55:50
Noted with thanks @Kathy
Kathy Kleiman
01:56:00
sounds good
Kathy Kleiman
01:56:03
Tx!
Paul McGrady
01:56:17
Let's just make sure these dissenting views are clearly marked
Steve Chan
01:56:56
Yes
Julie Bisland
01:57:04
NEXT CALL: Thursday, 04 June 2020 at 20:00 UTC for 90 minutes.
Paul McGrady
01:57:52
And let's also make sure that dissenting view designation don't give the impression that they are more than individual views
Anne Aikman-Scalese
01:58:03
When are Package 4 comments due?
Cheryl Langdon-Orr
01:58:22
Good plan
Cheryl Langdon-Orr
01:58:31
Yup
Anne Aikman-Scalese
01:58:50
Thank you
Heather Forrest
01:59:04
Bye all, thanks Jeff. Bye Julie!