On Sep 20, 2016, at 11:07 PM, Hofheimer, Joshua T. <jhofheimer@sidley.com> wrote:Jorge – I have not yet had the opportunity to consult with Greg, Jonathan and Lise, but I raise one question that the conditions subsequent to effectiveness – at least for CWG -- are different than what is set forth in the Names Function Agreement. Specifically, the difference is as follows:
In the drafts sent per the email below, the language inserts in each of the documents an effective date based on the IETF-ICANN SLA:
i. This Agreement will become effective on the date (“Effective Date”) that the IANA functions contract between NTIA and ICANN ends or is terminated, provided that date occurs before January 1, 2017. If such ending or termination has not occurred by January 1, 2017, this Agreement shall automatically terminate without further action of the Parties. Except as provided in the preceding sentence, no Party shall have the right to revoke or terminate this Agreement prior to the Effective Date.
The above is different from the Effective Date in the NFA and Services Agreement:
ii. This Agreement shall be effective as of the last date on which the following conditions have been satisfied: (a) the agreement between ICANN and the United States Department of Commerce (“DOC”), effective as of 01 October 2012 (including any extension thereof) has terminated or expired and (b) ICANN has accepted the responsibility to coordinate and administer the services that were previously provided thereunder.
I am not sure that any of these agreements should become effective without the inclusion of clause (b), namely ICANN’s acceptance by its Board of its responsibilities associated with the transition. Perhaps ICANN staff might weigh in on this as well. If as a practical matter, termination of the NTIA agreement would never occur without ICANN’s acceptance of its new role, then maybe this is ok.