RE: [council] more questions on consensus policy and contracts

["Bruce Tonkin" <Bruce.Tonkin@xxxxxxxxxxxxxxxxxx>]

Hello Avri,

I apologise for the delay in responding to your analysis and questions.

> 
> In my looking at it, I see at least two different questions:
> 
> - what can the council propose consensus policy on
> - the relation between consensus policy and contracts,
>    of which there are three types:
>    - existing
>    - renewing
>    - new
> 
> - what the council can propose consensus policy on:
> 
> If I understand correctly, the GNSO council can propose 
> policy, assuming it follows the procedures, on just about 
> anything related to gTLDs that can be shown to be relevant 
> under the Bylaws of 8apr05 Article 1.  And the Board is 
> empowered to approve policy, once presented by the GNSO 
> council after all appropriate procedures, on anything 
> interpreted as coming under the Mission as understood in the 
> context of the Values.  

Agreed.   In general lets just call this an ICANN Policy, rather than
"Consensus Policy" as defined in the registry and registrar agreements.

Ie the GNSO can propose a policy relating to gTLDs that is consistent
with the ICANN Bylaws, for approval by the ICANN Board as an ICANN
Policy.

An example of such a policy was the recent policy approved by the
Council (I don't think it is approved by the Board yet) to guide staff
in handling conflicts between the ICANN contracts and national law.
The policy is basically aimed at providing guidance for ICANN staff, who
must ensure that registries and registrars are complying with the terms
of their contract with the ICANN corporation.


> 
> - to what degree is consensus policy applicable to existing 
> contracts and to what degree are existing contracts 
> applicable to the creation of consensus policy?
> 
> If I understand correctly,  the nature or content of current 
> contracts or the clauses in those contracts relating to 
> consensus policy have _no_ effect on which policies can be 
> created and approved, but only affect the degree to which new 
> consensus policies can be applied during the term of that 
> contract.  And, as these exclusions from consensus policy 
> clauses are somewhat different in every contract, no general 
> statement can be made about which consensus policies are 
> applicable to the full set of current contracts.

Lets now use "Consensus Policies" in capital letters to refer to the
contractual definition in registry and registrar agreements.

The existing contracts have specific text defining where Consensus
Policies can apply during the term of the contract, and also include
specific text defining where these consensus policies do not apply.

As part of PDP-Feb06, we can examine what these restrictions are and
whether they should be modified for future contracts.   Modification in
existing contracts would require registry and registrar approvals.

An example of a "Consensus Policy" that applied to existing contracts
was the Transfers policy, and the WHOIS data reminder policy.

> 
> - to what degree do consensus policies affect contracts in 
> the process of renewal?
> 
> On this I am still confused. (at least I know I am confused 
> here, obviously if I am wrong about what I wrote above, then 
> I am also confused about that)  When a new contract is being 
> negotiated what is the relationship between existing 
> consensus policy, esp. policy that was created between the 
> time the contract was originally negotiated and the time of 
> renewal, and the renewal.  Does policy created during the 
> term of the expiring contract have effect on the contract 
> being renewed or on the clauses in that contract relating to 
> exemptions from consensus policy?

This is more complicated as some of the existing contracts include
provisions for renewal and also provisions for what terms carry over in
the renewed contract.    This can give rise to perpetual renewal
effects.  E.g a contract may say that it is for a 4 year term, and that
it can be renewed for another 4 year term (with the same renewal
provision to occur in the renewed contract) - thus it will auto-renew
every 4 years.

> 
> - to what degree are negotiations on new contracts bound by 
> consensus policy?
> 
> I am also confused on this.  Does consensus policy determine 
> the nature and content of new contracts negotiated by ICANN 
> staff.  Can the negotiators put in clauses exempting the 
> signatories from existing consensus policy as well as future 
> consensus policy? Can consensus policy that is in effect at 
> the time of negotiation, have an effect on the clauses in the 
> contract that relate to the effect of future consensus policy 
> on the contract conditions? I.e.  Could there be a consensus 
> policy that said future contracts could not exempt the 
> signatories from a particular consensus policy?

It is better to think here in terms of ICANN Policy.  An ICANN Policy
approved by the board would govern how the staff negotiate a new
contract.  However the staff could ask the Board to change its policy
prior to entering into an agreement.

One of the issues with recent contract negotiations is that this is no
ICANN Policy governing may of the key contractual terms for new
contracts.   Some may say this is a good thing  - as it gives the staff
maximum flexibility, and some may say this is a bad thing for much the
same reason :-)

Most corporations do have some standard policies that govern terms for
contracts, so it does seem reasonable for the GNSO (and subsequently the
ICANN Board) to consider whether some policies should be established for
gTLDs, or whether the status quo is OK.

To gain a better understanding I believe you need to read:
- ICANN Bylaws around mission and core values
- ICANN bylaws around GNSO and PDP
- at least a couple of registry agreements
(e.g .com, .biz, .jobs, .aero are all quite different from each other)
- the registrar accreditation agreement

In the agreements, check out provisions around:
- Consensus Policy
- renewal
- termination


Regards,
Bruce Tonkin