July 2016 - Accountability-Cross-Community

Reminder: Need Rapporteurs by 3 July
by Grace Abuhamad July 9, 2016

July 9, 2016

Dear all, This is a reminder that should you have an interest in becoming a Rapporteur of a WS2 subgroup, you need to indicate your interest by 3 July 2016. The names of those who have indicated interest in being a Rapporteur are highlighted in yellow in the Expression of Interest sign up list found at https://docs.google.com/document/d/1Iw5yn9GRk8RcnTJzclwB-JuSe3B6JugEj_0oGOC…. I have also attached the latest version of the document in PDF format. Sign up for participant or observer of the WS2 subgroups will remain open (beyond 3 July) – there is simple a deadline for rapporteur interest so that we can launch the subgroups and identify the leadership team for WS2. Here is the latest list of those signed up to serve as a Rapporteur: Diversity Fiona Asonga Human Rights Niels ten Oever Nigel Roberts Tijani Ben Jemaa Jurisdiction Paul McGrady Ombudsman Ed Morris Sebastien Bachollet SO/AC Accountability Cheryl Langdon-Orr Staff Accountability Avri Doria Transparency Ed Morris Michael Karanicolas Reviewing the Cooperative Engagement Process (CEP) Ed Morris Guidelines on Good Faith Conduct in Participating in Board Removal Discussions Lori Schulman Thank you to all who have volunteered so far. Safe travels home, Grace -- Grace Abuhamad Manager, Public Policy ICANN | Internet Corporation for Assigned Names and Numbers 801 17th Street NW, Suite 400 | Washington, DC 20006 Direct: +1 202 249 7545 | Mobile: +1 310 200 7638 Interested in the IANA Stewardship Transition? LEARN MORE. STAY UPDATED. FOLLOW. ENGAGE.

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Draft PTI Articles of Incorporation posted for Public Comment
by Hillary Jett July 7, 2016

July 7, 2016

Original link: https://www.icann.org/news/announcement-2016-07-01-en. Open Date: 1 July 2016 Close Date: 31 July 2016 Originating Organization: ICANN Categories/Tags: PTI Articles of Incorporation Brief Overview: This public comment proceeding seeks community input on the Draft PTI Articles of Incorporation developed to reflect the recommendations contained in the proposals by the IANA Stewardship Transition Coordination Group (ICG) as provided to the ICANN Board and transmitted to NTIA on 10 March 2016. Link: https://www.icann.org/public-comments/draft-pti-articles-incorporation-2016… -- Hillary Jett Communications Coordinator Internet Corporation for Assigned Names and Numbers (ICANN) Mobile: +1 (202) 674-3403 Email: hillary.jett(a)icann.org

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Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)
by Thomas Rickert July 7, 2016

July 7, 2016

Thanks, Trang! I suggest we still try to wrap up the discussion swiftly. Those that want to chime in, please do so at your earliest convenience. Best, Thomas Thomas Rickert Rechtsanwalt tel: +49.228.74 898.0 fax: +49.228.74 898.66 email: thomas(a)rickert.net web: rickert.net RICKERT Rechtsanwaltsgesellschaft m.b.H. (i.e. law firm) Kaiserplatz 7 - 9, 53113 Bonn, Germany HRB 9262, AG Bonn - GF/CEO: Thomas Rickert > Am 07.07.2016 um 02:38 schrieb Trang Nguyen <trang.nguyen(a)icann.org>: > > All, > > The ICANN restated articles of incorporation is not on the critical path so we are able to accommodate an extension of the public comment period. The close of the public comment period has been extended to 13 July. > > Trang > > From: James Gannon <james(a)cyberinvasion.net> > Date: Wednesday, July 6, 2016 at 2:24 PM > To: Greg Shatan <gregshatanipc(a)gmail.com> > Cc: "Gregory, Holly" <holly.gregory(a)sidley.com>, Thomas Rickert <thomas(a)rickert.net>, Mathieu Weill <mathieu.weill(a)afnic.fr>, "leonfelipe(a)sanchez.mx" <leonfelipe(a)sanchez.mx>, Accountability Cross Community <accountability-cross-community(a)icann.org>, Bernard Turcotte <turcotte.bernard(a)gmail.com>, Trang Nguyen <trang.nguyen(a)icann.org>, Yuko Green <yuko.green(a)icann.org> > Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC) > > Hi All, > In light of this and some other conversations I think that we need to take at least 24hours to review this comment and ensure that it is a consensus comment of the CCWG before we file it, Im not sure if a 24-48hr delay in the filing of the CCWG comment would have a major impact downstream in the timelines, I have cc’d Trang and Yuko who may be able to respond to that. > > I think that we may have let the AoI slip under our radar a little with all of the parallel work that is going on and we need to make sure that we get this comment correct first time and to do that we nee to do it with a full set of inputs and considerations by the CCWG members and I don’t feel we have this yet. I know that we are working to tight deadlines, but we need to make sure that we do this right. > > -JG > > From: Greg Shatan <gregshatanipc(a)gmail.com> > Date: Wednesday 6 July 2016 at 21:45 > To: James Gannon <james(a)cyberinvasion.net> > Cc: "Gregory, Holly" <holly.gregory(a)sidley.com>, Thomas Rickert <thomas(a)rickert.net>, Mathieu Weill <mathieu.weill(a)afnic.fr>, "leonfelipe(a)sanchez.mx" <leonfelipe(a)sanchez.mx>, Accountability Cross Community <accountability-cross-community(a)icann.org>, Bernard Turcotte <turcotte.bernard(a)gmail.com> > Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC) > > It's unfortunate that we don't have time to run this by our counsel, as I would be interested in their views. Here are mine. > > I would recommend against filing these comments. > > FIRST, I disagree with the second point raised. Substituting "shall" for "may" would incorrectly imply that there is a requirement that a determination of the global public interest must take place. We have not asked for such a requirement and we have not specified any such requirement, which would render this statement nebulous, ambiguous and undefined. As currently drafted, if a determination of the global public interest takes place it will be done by the multistakeholder community using a bottom-up multistakeholder process, but there is (properly) no language requiring that such a determination be made. > > If anyone believes that Final Recommendation 1, para 51 requires the initiation of a process to determine the global public interest, that should either be a part of Work Stream 2 or a huge implementation item for Work Stream 1. As far as I can see, it is neither -- which further proves that changing "may" to "shall" goes beyond the recommendations of the CCWG. > > SECOND, I also disagree with the third point raised. "Organized" is commonly used in Articles of Incorporation (indeed, in some states, such as Massachusetts, a non-profit corporation files Articles of Organization rather than Articles of Incorporation). As our counsel pointed out on the last call, the California official form for Articles of Incorporation uses the term "organized." (See attached) It is a best practice to stick closely to the official language provided by the jurisdiction -- here it is "organized." This is demonstrated in model California Articles of Incorporation prepared by Public Counsel, a pro bono law firm, and available online (see attached or http://www.publiccounsel.org/publications?id=0059) It would be far preferable if we were to accept the clarification that "organized" is what's used in this circumstance, rather than to recommend a change that is at best meaningless and at worst creates the potential for confusion (since one always looks for meaning in any change, and confusion could fill the void created by the meaninglessness of this change). To paraphrase Shakespeare, I don't think the confusion is in the document, it is in ourselves (or at least in some of us) -- and it would be better for us to adjust our understanding of the document, rather than to adjust the document to suit our misunderstanding. > > Of course, the language of the CCWG comment is relatively undemanding -- we only ask that "counsel" (whose counsel? ICANN's?) or "the drafters" (why the difference?) review the language. We do not justify our quasi-recommendations of changes, other than by saying that we are confused by the word "organized" and by demonstrating that we are confused about what is permissive and what is required. > > Frankly, I'm far from sure that this comment is widely supported, other than by apathy or lack of time. I think it would be a mistake for either of these two recommendations (?) to be adopted, and I hope that counsel/the drafters, upon further review, let the original drafting stand. > > The only thing I agree with is the trivial change from "further" to "future," which at least does not make matters worse. This is hardly worth a comment by itself. > > In sum, I reiterate that I would recommend against filing these comments. > > Best regards, > > Greg > >> On Wed, Jul 6, 2016 at 3:49 PM, Greg Shatan <gregshatanipc(a)gmail.com> wrote: >> I agree. This is a legal document, and we should have the benefit of counsel on this. >> >> Greg >> >> On Wed, Jul 6, 2016 at 3:36 PM, James Gannon <james(a)cyberinvasion.net> wrote: >>> While not able to certify anything, if there are issues that our counsel see I think its important that they are raised. >>> >>> -James >>> >>> From: <accountability-cross-community-bounces(a)icann.org> on behalf of "Gregory, Holly" <holly.gregory(a)sidley.com> >>> Date: Wednesday 6 July 2016 at 20:32 >>> To: Thomas Rickert <thomas(a)rickert.net>, Mathieu Weill <mathieu.weill(a)afnic.fr>, "leonfelipe(a)sanchez.mx" <leonfelipe(a)sanchez.mx>, Accountability Cross Community <accountability-cross-community(a)icann.org>, Bernard Turcotte <turcotte.bernard(a)gmail.com> >>> Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC) >>> >>> Dear Co-Chairs and CCWG-Accountability Members and Participants, Please let us know if you want Sidley and/or Adler to comment on this before you post it. We will not do so unless instructed to. Holly >>> >>> >>> >>> HOLLY J. GREGORY >>> Partner and Co-Chair, Global Corporate Governance & Executive Compensation Practice >>> >>> SIDLEY AUSTIN LLP >>> +1 212 839 5853 >>> holly.gregory(a)sidley.com >>> >>> >>> >>> From: accountability-cross-community-bounces(a)icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Bernard Turcotte >>> Sent: Wednesday, July 06, 2016 3:27 PM >>> To: Accountability Cross Community >>> Subject: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC) >>> >>> >>> >>> All, >>> >>> >>> >>> Please find attached the draft comment to the ICANN public consultation on the Articles of Incorporation from the leadership. >>> >>> >>> >>> These comments are based on the questions raised during the CCWG meeting on the AOC and in consideration of Sam Eisner's response to those questions. >>> >>> >>> >>> Please respond to the list ASAP if you have comments as this public consultation closes in a few hours. >>> >>> >>> >>> Bernard Turcotte >>> >>> ICANN Staff Support for the CCWG Co-Chairs. >>> >>> >>> >>> **************************************************************************************************** >>> This e-mail is sent by a law firm and may contain information that is privileged or confidential. >>> If you are not the intended recipient, please delete the e-mail and any attachments and notify us >>> immediately. >>> >>> **************************************************************************************************** >>> >>> >>> _______________________________________________ >>> Accountability-Cross-Community mailing list >>> Accountability-Cross-Community(a)icann.org >>> https://mm.icann.org/mailman/listinfo/accountability-cross-community >

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CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)
by Gregory, Holly July 6, 2016

July 6, 2016

Dear Thomas, Mathieu, Leon, and CCWG –Accountability Members and Participants: Here are our comments on the draft public comment that Thomas circulated late this afternoon. Please consider our edits which we provide in bold blue. Our comments are provided in red. 1. Article 1 - Future v. further laws 1.1. Text from the Draft Restated Articles of Incorporation: “Any reference in these Articles to the Code shall include the corresponding provisions of any further United States tax code.” 1.2. Issue: The use of the word “further” instead of “future” appears to be a typographical error, and if unaddressed would raise concern to many in the CCWG-Accountability as leaving the door to unintended consequences. 1.3. Recommendation: Replace “further” with “future” 2. Article 2 - May v. Shall on global public interest 2.1. Text from the Draft Restated Articles of Incorporation: “, the Corporation shall, except as limited by Article 54 hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet by (i) coordinating the assignment of Internet technical parameters as needed to maintain universal connectivity on the Internet; (ii) performing and overseeing functions related to the coordination of the Internet Protocol ("IP") address space; (iii) performing and overseeing functions related to the coordination of the Internet domain name system ("DNS"), including the development of policies for determining the circumstances under which new top-level domains are added to the DNS root system; (iv) overseeing operation of the authoritative Internet DNS root server system; and (v) engaging in any other related lawful activity in furtherance of items (i) through (iv), as such global public interest may be determined from time to time by the multistakeholder community through an inclusive bottom-up multistakeholder community process, by carrying out the mission set forth in the bylaws of the Corporation (“Bylaws”). 2.2. Issue: Concerns were raised regarding the use of the term “may.” Some felt this did not properly implement the recommendations of the CCWG-Accountability on this topic which include: 2.2.1. CCWG-Accountability Final Recommendation 1, para 51: The Articles of Incorporation will be amended to clarify that the global public interest will be determined through a bottom-up, multistakeholder process. 2.2.2. CCWG-Accountability Final Recommendation 5, para 153 (core values) 2: Seeking and supporting broad, informed participation reflecting the functional, geographic, and cultural diversity of the Internet at all levels of policy development and decision-making to ensure that the bottom-up, multistakeholder policy development process is used to ascertain the global public interest and that those processes are accountable and transparent. 2.3. Recommendation: The CCWG-Accountability would request that counsel review the Draft Restated Articles of Incorporation to ensure these properly implement its recommendations in this matter. We respectfully disagree with comment 2 and recommend that it be deleted. From a legal drafting perspective, the word “may” is appropriate in this context, specifically as it is used in the phrase “may be determined from time to time” which indicates that the determination is made based on when the need for a determination arises. Use of “may” in this context does not suggest that someone other than the multistakeholder community has a decision right. 3. We agree with Thomas’ proposal to delete the comment on Article 2 regarding the use of the word “organized.” This is a legal document and “organized” is the appropriate term. We have conferred with Adler, and they have confirmed that they have no further comments. Kind regards, Holly HOLLY J. GREGORY Partner and Co-Chair, Global Corporate Governance & Executive Compensation Practice SIDLEY AUSTIN LLP +1 212 839 5853 holly.gregory(a)sidley.com<mailto:holly.gregory@sidley.com> From: accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Thomas Rickert Sent: Wednesday, July 06, 2016 6:02 PM To: Greg Shatan Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC) I agree we should let Holly and Rosemary chime in with their view. I would just note the following: - We agree on the first point. - With respect to the second point - we are making reference to our report and ask the drafters to ensure that this is adequately covered. Therefore, there should not be the risk of going beyond the recommendations our group has made. In my view, we could fix the concerns some of you raised by reframing the Issues paragraph as follows: "Issue: Concerns were raised regarding use of the term “may”. Some felt this did not properly implement the recommendations of the CCWG-Accountability on this topic which include:" This tweak would remove reference to the word „shall“ and just request the lawyers to double-check whether our recommendations are covered. - On the third point: Greg put additional information on the record showing that the language is not ambiguous. This could be pointed to if need be. Thus, we could potentially drop that point. I have attached an updated version. Please note that our comment shall encourage the drafters to take a second look at the document based on our feedback. If concerns are raised or language is perceived to be unclear, that is something we can and should raise. I trust that the legal teams have good reason for why they framed things as they did in the draft we now comment on. Still, the perception that some have justifies that these concerns are being brought up and reviewed. We will now let the discussion go on and file our comment a bit late. I am sure it will still be taken into account. Thanks and kind regards, Thomas Am 06.07.2016 um 23:44 schrieb Greg Shatan <gregshatanipc(a)gmail.com<mailto:gregshatanipc@gmail.com>>: I also agree with Edward that we benefit by letting the retained pros come on to the field and kick the ball around with the rest of us. On Wed, Jul 6, 2016 at 5:40 PM, Edward Morris <egmorris1(a)toast.net<mailto:egmorris1@toast.net>> wrote: I agree with Greg for the exact reasons he has cited. Legal language has a structure and definitional quality all it's own and I would be very hesitant to submit this comment without having first run it by our counsel. My experience and education causes me to agree with Greg's analysis and I would urge caution in approaching this matter in a less than thorough manner. This is a legal document very specific to California law and I would be uncomfortable submitting something that has not yet been vetted by our legal team. Best, Ed Morris Sent from my iPhone On 6 Jul 2016, at 21:51, Greg Shatan <gregshatanipc(a)gmail.com<mailto:gregshatanipc@gmail.com>> wrote: It's unfortunate that we don't have time to run this by our counsel, as I would be interested in their views. Here are mine. I would recommend against filing these comments. FIRST, I disagree with the second point raised. Substituting "shall" for "may" would incorrectly imply that there is a requirement that a determination of the global public interest must take place. We have not asked for such a requirement and we have not specified any such requirement, which would render this statement nebulous, ambiguous and undefined. As currently drafted, if a determination of the global public interest takes place it will be done by the multistakeholder community using a bottom-up multistakeholder process, but there is (properly) no language requiring that such a determination be made. If anyone believes that Final Recommendation 1, para 51 requires the initiation of a process to determine the global public interest, that should either be a part of Work Stream 2 or a huge implementation item for Work Stream 1. As far as I can see, it is neither -- which further proves that changing "may" to "shall" goes beyond the recommendations of the CCWG. SECOND, I also disagree with the third point raised. "Organized" is commonly used in Articles of Incorporation (indeed, in some states, such as Massachusetts, a non-profit corporation files Articles of Organization rather than Articles of Incorporation). As our counsel pointed out on the last call, the California official form for Articles of Incorporation uses the term "organized." (See attached) It is a best practice to stick closely to the official language provided by the jurisdiction -- here it is "organized." This is demonstrated in model California Articles of Incorporation prepared by Public Counsel, a pro bono law firm, and available online (see attached or http://www.publiccounsel.org/publications?id=0059) It would be far preferable if we were to accept the clarification that "organized" is what's used in this circumstance, rather than to recommend a change that is at best meaningless and at worst creates the potential for confusion (since one always looks for meaning in any change, and confusion could fill the void created by the meaninglessness of this change). To paraphrase Shakespeare, I don't think the confusion is in the document, it is in ourselves (or at least in some of us) -- and it would be better for us to adjust our understanding of the document, rather than to adjust the document to suit our misunderstanding. Of course, the language of the CCWG comment is relatively undemanding -- we only ask that "counsel" (whose counsel? ICANN's?) or "the drafters" (why the difference?) review the language. We do not justify our quasi-recommendations of changes, other than by saying that we are confused by the word "organized" and by demonstrating that we are confused about what is permissive and what is required. Frankly, I'm far from sure that this comment is widely supported, other than by apathy or lack of time. I think it would be a mistake for either of these two recommendations (?) to be adopted, and I hope that counsel/the drafters, upon further review, let the original drafting stand. The only thing I agree with is the trivial change from "further" to "future," which at least does not make matters worse. This is hardly worth a comment by itself. In sum, I reiterate that I would recommend against filing these comments. Best regards, Greg On Wed, Jul 6, 2016 at 3:49 PM, Greg Shatan <gregshatanipc(a)gmail.com<mailto:gregshatanipc@gmail.com>> wrote: I agree. This is a legal document, and we should have the benefit of counsel on this. Greg On Wed, Jul 6, 2016 at 3:36 PM, James Gannon <james(a)cyberinvasion.net<mailto:james@cyberinvasion.net>> wrote: While not able to certify anything, if there are issues that our counsel see I think its important that they are raised. -James From: <accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of "Gregory, Holly" <holly.gregory(a)sidley.com<mailto:holly.gregory@sidley.com>> Date: Wednesday 6 July 2016 at 20:32 To: Thomas Rickert <thomas(a)rickert.net<mailto:thomas@rickert.net>>, Mathieu Weill <mathieu.weill(a)afnic.fr<mailto:mathieu.weill@afnic.fr>>, "leonfelipe(a)sanchez.mx<mailto:leonfelipe@sanchez.mx>" <leonfelipe(a)sanchez.mx<mailto:leonfelipe@sanchez.mx>>, Accountability Cross Community <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>>, Bernard Turcotte <turcotte.bernard(a)gmail.com<mailto:turcotte.bernard@gmail.com>> Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC) Dear Co-Chairs and CCWG-Accountability Members and Participants, Please let us know if you want Sidley and/or Adler to comment on this before you post it. We will not do so unless instructed to. Holly HOLLY J. GREGORY Partner and Co-Chair, Global Corporate Governance & Executive Compensation Practice SIDLEY AUSTIN LLP +1 212 839 5853<tel:%2B1%20212%20839%205853> holly.gregory(a)sidley.com<mailto:holly.gregory@sidley.com> From: accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Bernard Turcotte Sent: Wednesday, July 06, 2016 3:27 PM To: Accountability Cross Community Subject: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC) All, Please find attached the draft comment to the ICANN public consultation on the Articles of Incorporation from the leadership. These comments are based on the questions raised during the CCWG meeting on the AOC and in consideration of Sam Eisner's response to those questions. Please respond to the list ASAP if you have comments as this public consultation closes in a few hours. Bernard Turcotte ICANN Staff Support for the CCWG Co-Chairs. **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. **************************************************************************************************** _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community <arts-pb.pdf> <Form_Articles.doc> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community

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CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)
by Bernard Turcotte July 6, 2016

July 6, 2016

All, Please find attached the draft comment to the ICANN public consultation on the Articles of Incorporation from the leadership. These comments are based on the questions raised during the CCWG meeting on the AOC and in consideration of Sam Eisner's response to those questions. Please respond to the list ASAP if you have comments as this public consultation closes in a few hours. Bernard Turcotte ICANN Staff Support for the CCWG Co-Chairs.

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Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)
by Alan Greenberg July 6, 2016

July 6, 2016

In my case, it is not apathy but lack of time. I strongly support Greg on not replacing MAY with SHALL. Perhaps we will ultimately determine (or define) global public interest, but I personally think that trying to lock in specific wording is a fools game and will only get us in trouble. We certainly must understand it better, and that will likely be an ongoing exercise. Specifically, I am not sure what "shall be determined from time to time" means. I has the tone of something that will be done every N years on a regular schedule and that certainly is not what was meant. Alan At 06/07/2016 04:45 PM, Greg Shatan wrote: >It's unfortunate that we don't have time to run this by our counsel, >as I would be interested in their views. Here are mine. > >I would recommend against filing these comments. > >FIRST, I disagree with the second point raised. Substituting >"shall" for "may" would incorrectly imply that there is a >requirement that a determination of the global public interest must >take place. We have not asked for such a requirement and we have >not specified any such requirement, which would render this >statement nebulous, ambiguous and undefined. As currently drafted, >if a determination of the global public interest takes place it will >be done by the multistakeholder community using a bottom-up >multistakeholder process, but there is (properly) no language >requiring that such a determination be made. > >If anyone believes that Final Recommendation 1, para 51 requires the >initiation of a process to determine the global public interest, >that should either be a part of Work Stream 2 or a huge >implementation item for Work Stream 1. As far as I can see, it is >neither -- which further proves that changing "may" to "shall" goes >beyond the recommendations of the CCWG. > >SECOND, I also disagree with the third point raised. "Organized" is >commonly used in Articles of Incorporation (indeed, in some states, >such as Massachusetts, a non-profit corporation files Articles of >Organization rather than Articles of Incorporation). As our counsel >pointed out on the last call, the California official form for >Articles of Incorporation uses the term "organized." (See >attached) It is a best practice to stick closely to the official >language provided by the jurisdiction -- here it is >"organized." This is demonstrated in model California Articles of >Incorporation prepared by Public Counsel, a pro bono law firm, and >available online (see attached or ><http://www.publiccounsel.org/publications?id=0059>http://www.publiccounsel.org/publications?id=0059) >It would be far preferable if we were to accept the clarification >that "organized" is what's used in this circumstance, rather than to >recommend a change that is at best meaningless and at worst creates >the potential for confusion (since one always looks for meaning in >any change, and confusion could fill the void created by the >meaninglessness of this change). To paraphrase Shakespeare, I don't >think the confusion is in the document, it is in ourselves (or at >least in some of us) -- and it would be better for us to adjust our >understanding of the document, rather than to adjust the document to >suit our misunderstanding. > >Of course, the language of the CCWG comment is relatively >undemanding -- we only ask that "counsel" (whose counsel? ICANN's?) >or "the drafters" (why the difference?) review the language. We do >not justify our quasi-recommendations of changes, other than by >saying that we are confused by the word "organized" and by >demonstrating that we are confused about what is permissive and what >is required. > >Frankly, I'm far from sure that this comment is widely supported, >other than by apathy or lack of time. I think it would be a mistake >for either of these two recommendations (?) to be adopted, and I >hope that counsel/the drafters, upon further review, let the >original drafting stand. > >The only thing I agree with is the trivial change from "further" to >"future," which at least does not make matters worse. This is >hardly worth a comment by itself. > >In sum, I reiterate that I would recommend against filing these comments. > >Best regards, > >Greg > >On Wed, Jul 6, 2016 at 3:49 PM, Greg Shatan ><<mailto:gregshatanipc@gmail.com>gregshatanipc(a)gmail.com> wrote: >I agree. This is a legal document, and we should have the benefit >of counsel on this. > >Greg > >On Wed, Jul 6, 2016 at 3:36 PM, James Gannon ><<mailto:james@cyberinvasion.net>james(a)cyberinvasion.net> wrote: >While not able to certify anything, if there are issues that our >counsel see I think its important that they are raised. > >-James > >From: ><<mailto:accountability-cross-community-bounces@icann.org>accountability-cross-community-bounces(a)icann.org> >on behalf of "Gregory, Holly" ><<mailto:holly.gregory@sidley.com>holly.gregory(a)sidley.com> >Date: Wednesday 6 July 2016 at 20:32 >To: Thomas Rickert <<mailto:thomas@rickert.net>thomas(a)rickert.net>, >Mathieu Weill ><<mailto:mathieu.weill@afnic.fr>mathieu.weill(a)afnic.fr>, >"<mailto:leonfelipe@sanchez.mx>leonfelipe(a)sanchez.mx" ><<mailto:leonfelipe@sanchez.mx>leonfelipe(a)sanchez.mx>, >Accountability Cross Community ><<mailto:accountability-cross-community@icann.org>accountability-cross-community(a)icann.org>, >Bernard Turcotte ><<mailto:turcotte.bernard@gmail.com>turcotte.bernard(a)gmail.com> >Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for >Public Consultation on Articles of Incorporation (AOC) > >Dear Co-Chairs and CCWG-Accountability Members and >Participants, Please let us know if you want Sidley and/or Adler to >comment on this before you post it. We will not do so unless >instructed to. Holly > > > >HOLLY J. GREGORY >Partner and Co-Chair, Global Corporate Governance & Executive >Compensation Practice > >SIDLEY AUSTIN LLP ><tel:%2B1%20212%20839%205853>+1 212 839 5853 ><mailto:holly.gregory@sidley.com>holly.gregory(a)sidley.com > > > >From: ><mailto:accountability-cross-community-bounces@icann.org>accountability-cross-community-bounces(a)icann.org >[mailto:accountability-cross-community-bounces@icann.org] On Behalf >Of Bernard Turcotte >Sent: Wednesday, July 06, 2016 3:27 PM >To: Accountability Cross Community >Subject: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public >Consultation on Articles of Incorporation (AOC) > > > >All, > > > >Please find attached the draft comment to the ICANN public >consultation on the Articles of Incorporation from the leadership. > > > >These comments are based on the questions raised during the CCWG >meeting on the AOC and in consideration of Sam Eisner's response to >those questions. > > > >Please respond to the list ASAP if you have comments as this public >consultation closes in a few hours. > > > >Bernard Turcotte > >ICANN Staff Support for the CCWG Co-Chairs. > > > >**************************************************************************************************** >This e-mail is sent by a law firm and may contain information that >is privileged or confidential. >If you are not the intended recipient, please delete the e-mail and >any attachments and notify us >immediately. > >**************************************************************************************************** > >_______________________________________________ >Accountability-Cross-Community mailing list ><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community > > > >Content-Type: application/pdf; name="arts-pb.pdf" >Content-Disposition: attachment; filename="arts-pb.pdf" >X-Attachment-Id: f_iqbc4wi90 >X-Microsoft-Exchange-Diagnostics: > >1;SN1PR0301MB2030;9:toyx27o4zF+B7yBPtDTlcJu35g7RbUKT5tNn9r8DJbSrPW9u47lOxY9A4iwqcFp2P0QBQLtM6vicM+8ryCDvmcWSELQgPa4IAqCkkWRb0y6E2tqyIGbu4h29OuFYAUIISOsRKnewZM+mn8pHGWUhH7XcmmVsz4Qp2IfMpQci0zz0Bh2ZjKTYXoys0ZKUDsZXAQj2nPwI83ZOev0Kv/bktQ== > >Content-Type: application/msword; name="Form_Articles.doc" >Content-Disposition: attachment; filename="Form_Articles.doc" >X-Attachment-Id: f_iqbc9ez31 >X-Microsoft-Exchange-Diagnostics: > >1;SN1PR0301MB2030;9:toyx27o4zF+B7yBPtDTlcJu35g7RbUKT5tNn9r8DJbSrPW9u47lOxY9A4iwqcFp2P0QBQLtM6vicM+8ryCDvmcWSELQgPa4IAqCkkWRb0y6E2tqyIGbu4h29OuFYAUIISOsRKnewZM+mn8pHGWUhH7XcmmVsz4Qp2IfMpQci0zz0Bh2ZjKTYXoys0ZKUDsZXAQj2nPwI83ZOev0Kv/bktQ== > >Content-Type: text/plain; charset="us-ascii" >Content-Transfer-Encoding: 7bit >Content-Disposition: inline >X-Microsoft-Exchange-Diagnostics: > >1;SN1PR0301MB2030;9:toyx27o4zF+B7yBPtDTlcJu35g7RbUKT5tNn9r8DJbSrPW9u47lOxY9A4iwqcFp2P0QBQLtM6vicM+8ryCDvmcWSELQgPa4IAqCkkWRb0y6E2tqyIGbu4h29OuFYAUIISOsRKnewZM+mn8pHGWUhH7XcmmVsz4Qp2IfMpQci0zz0Bh2ZjKTYXoys0ZKUDsZXAQj2nPwI83ZOev0Kv/bktQ== > >_______________________________________________ >Accountability-Cross-Community mailing list >Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community

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Fwd: [Acct-Legal] Public comment on draft Articles of Incorporation?
by Thomas Rickert July 6, 2016

July 6, 2016

All, please see below an e-mail from Holly, which did not make it to the CCWG list. Thomas > Anfang der weitergeleiteten Nachricht: > > Von: "Gregory, Holly" <holly.gregory(a)sidley.com> > Betreff: [Acct-Legal] [CCWG-ACCT] Public comment on draft Articles of Incorporation? > Datum: 5. Juli 2016 um 19:51:06 MESZ > An: "thomas(a)rickert.net" <thomas(a)rickert.net>, "mathieu.weill(a)afnic.fr" <mathieu.weill(a)afnic.fr>, León Felipe Sánchez Ambía <leonfelipe(a)sanchez.mx>, "ccwg-accountability5(a)icann.org" <ccwg-accountability5(a)icann.org> > > > Dear Co-Chairs and CCWG Accountability Members and Participants, > Please let us know if we should be paying attention to issues regarding the Articles of Incorporation or if you prefer that ICANN Legal provide advice on these matters. As you know, we did not participate in Helsinki and in the interests of economy no longer read on a daily basis the email exchanges. Therefore this is meant as a friendly reminder that unless a matter is specifically addressed to us we are not following these developments. > Kind regards, Holly > HOLLY J. GREGORY > Partner and Co-Chair > Corporate Governance & Executive Compensation Practice Group > Sidley Austin LLP > 787 Seventh Avenue > New York, NY 10019 > +1 212 839 5853 > holly.gregory(a)sidley.com <mailto:holly.gregory@sidley.com> > www.sidley.com <http://www.sidley.com/> > <http://www.sidley.com/> SIDLEY AUSTIN LLP > > From: accountability-cross-community-bounces(a)icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Schaefer, Brett > Sent: Monday, July 04, 2016 5:42 PM > To: Thomas Rickert > Cc: Accountability Cross Community > Subject: Re: [CCWG-ACCT] Public comment on draft Articles of Incorporation? > > Thomas, > > As stated in our public comment, I am concerned about the ambiguity of the AoI text on the global public interest. As I sent to the list last Sunday, I do not believe that Samantha's new text on the global public interest addresses the concerns raised in the June 20 call. Specifically, that the proposed phrasing leaves open the possibility that the GPI could at times be determined by non-bottom up multi-stakeholder process. > > I suggest that the CCWG request the following text instead of Samantha's text circulated last Sunday: as such the global public interest shall be determined by the multistakeholder community through an inclusive bottom-up multistakeholder community process consistent with the mission set forth in the bylaws of the Corporation (“Bylaws”). <> > > > I believe that this text would remove any ambiguity about how GPI is determined. > > > I understand that this would be more controversial and not necessarily legally necessary, but I think that the AoI would be clearer if "organized" were replaced by "incorporated" or "organized and incorporated" and the location of the headquarters was inserted. > > > Best, > > > Brett > > __________ > > On Jul 4, 2016, at 3:57 PM, Thomas Rickert <thomas(a)rickert.net <mailto:thomas@rickert.net>> wrote: > > Dear all, > it was good to see many of you in Helsinki and I hope that you had safe trips back home. > > We discussed the draft Articles of Incorporation during our last telco and agreed that Sam would send additional information to the list and all of us would then consider further whether or not all concerns have been removed. > > Thanks to Sam for providing more information in the meantime. > > With the end of the public comment period approaching rapidly, I would now like those of you who think we should raise concerns with a CCWG comment to write to the list within the next 24 hours (until 20.00 UTC on July 5th). Should any concerns raised get ssufficient traction to be considered a CCWG position, we will prepare a comment on that basis. > > In any case, we will issue a brief CCWG comment supporting the draft either unconditionally or with any additional CCWG comments there might be based on the approach described above. > > Thanks and kind regards, > Thomas > > --- > rickert.net <https://urldefense.proofpoint.com/v2/url?u=http-3A__rickert.net&d=CwMGaQ&c=…> > > Brett Schaefer > Jay Kingham Senior Research Fellow in International Regulatory Affairs > Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy > The Heritage Foundation > 214 Massachusetts Avenue, NE > Washington, DC 20002 > 202-608-6097 > heritage.org <https://urldefense.proofpoint.com/v2/url?u=http-3A__heritage.org_&d=CwMGaQ&…> > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community(a)icann.org <mailto:Accountability-Cross-Community@icann.org> > https://protect-us.mimecast.com/s/ar94B3IW62RuD <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_l…> > > > **************************************************************************************************** > This e-mail is sent by a law firm and may contain information that is privileged or confidential. > If you are not the intended recipient, please delete the e-mail and any attachments and notify us > immediately. > > **************************************************************************************************** > > _______________________________________________ > Ccwg-accountability5 mailing list > Ccwg-accountability5(a)icann.org <mailto:Ccwg-accountability5@icann.org> > https://mm.icann.org/mailman/listinfo/ccwg-accountability5 <https://mm.icann.org/mailman/listinfo/ccwg-accountability5>

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Public comment on draft Articles of Incorporation?
by Thomas Rickert July 4, 2016

July 4, 2016

Dear all, it was good to see many of you in Helsinki and I hope that you had safe trips back home. We discussed the draft Articles of Incorporation during our last telco and agreed that Sam would send additional information to the list and all of us would then consider further whether or not all concerns have been removed. Thanks to Sam for providing more information in the meantime. With the end of the public comment period approaching rapidly, I would now like those of you who think we should raise concerns with a CCWG comment to write to the list within the next 24 hours (until 20.00 UTC on July 5th). Should any concerns raised get ssufficient traction to be considered a CCWG position, we will prepare a comment on that basis. In any case, we will issue a brief CCWG comment supporting the draft either unconditionally or with any additional CCWG comments there might be based on the approach described above. Thanks and kind regards, Thomas --- rickert.net

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Re: [CCWG-ACCT] Reminder: Need Rapporteurs by 3 July
by Snehashish Ghosh July 4, 2016

July 4, 2016

Dear Phil, Thank you so much for reminding the CCWG-Accountability about the role of the Rapporteurs. It is deeply appreciated.  Regards,Snehashish From: Phil Corwin <psc(a)vlaw-dc.com> Sent: Mon, 04 Jul 2016 14:09:30 To: "vidushi(a)cis-india.org" <vidushi(a)cis-india.org>, Snehashish Ghosh <snehashish(a)nixi.in> Cc: Accountability Cross Community <accountability-cross-community(a)icann.org> Subject: Re: [CCWG-ACCT] Reminder: Need Rapporteurs by 3 July Rapporteurs are supposed to faithfully report on proceedings. Not provide their own perspective.  Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design." -- Branch Rickey From:vidushi@cis-india.org Sent:July 4, 2016 10:31 AM To:snehashish@nixi.in Cc:accountability-cross-community@icann.org Subject:Re: [CCWG-ACCT] Reminder: Need Rapporteurs by 3 July My full support Vinay Kesari's application to be rapporteur for sub group on jurisdiction. ----- Snehashish Ghosh <snehashish(a)nixi.in> wrote: > +1~Snehashish > > From: Arun Mohan Sukumar &lt;arun.sukumar(a)orfonline.org&gt; > Sent: Mon, 04 Jul 2016 11:32:44 > To: Bastiaan Goslings &lt;bastiaan.goslings(a)ams-ix.net&gt; > Cc: accountability-cross-community(a)icann.org > Subject: Re: [CCWG-ACCT] Reminder: Need Rapporteurs by 3 July >  Second both Vinay and Greg’s nomination to the WS2 sub-group on jurisdiction, will be good to have them as rapporteurs and lend diversity of perspectives to this.On 04-Jul-2016, at 11:11 AM, Bastiaan Goslings &lt;bastiaan.goslings(a)ams-ix.net&gt; wrote:I too&nbsp;support Greg to be rapporteur for the subgroup on jurisdiction.Regards,Bastiaan--Envoyé de mon iPhoneOn 4 jul. 2016, at 07:09, Dr. Tatiana Tropina &lt;t.tropina(a)mpicc.de&gt; wrote: >   >     + 1. My full support to Greg as rapporteur for the subgroup on >       jurisdiction.Best,Tanya >     >     >     On 03/07/16 23:33, James Gannon wrote: >     >     >       >       >         >           I support Greg as rapporteur for this group. >           >           >           -James >           >           >         >       >       >       >       >         >           From: &lt;accountability-cross-community-bounces(a)icann.org&gt; >           on behalf of Greg Shatan &lt;gregshatanipc(a)gmail.com&gt; >           Date: Sunday 3 July >           2016 at 21:10 >           To: Grace Abuhamad &lt;grace.abuhamad(a)icann.org&gt; >           Cc: Accountability >           Cross Community &lt;accountability-cross-community(a)icann.org&gt; >           Subject: Re: >           [CCWG-ACCT] Reminder: Need Rapporteurs by 3 July >         >         >         >         >           >             >               Grace, >               >               >               I am volunteering >                 to serve as rapporteur for the Jurisdiction subgroup. >               >               >               Best regards, >               >               >               Greg Shatan >             >             >               On Fri, Jul 1, 2016 at 1:40 AM, >                 Grace Abuhamad >                   &lt;grace.abuhamad(a)icann.org&gt; >                 wrote: >                 >                   >                     Dear all, &nbsp;This is a reminder >                           that should you have an interest in becoming a >                           Rapporteur of a WS2 subgroup, you need to >                           indicate your interest by 3 July 2016.The names of those >                           who have indicated interest in being a >                           Rapporteur are highlighted in yellow in the >                           Expression of Interest sign up list found at >                           > https://docs.google.com/document/d/1Iw5yn9GRk8RcnTJzclwB-JuSe3B6JugEj_0oGOC…. >                           I have also attached the latest version of the >                           document in PDF format.&nbsp;Sign up for >                           participant or observer of the WS2 subgroups >                           will remain open (beyond 3 July) – there is >                           simple a deadline for rapporteur interest so >                           that we can launch the subgroups and identify >                           the leadership team for WS2. &nbsp;Here is the latest >                           list of those signed up to serve as a >                           Rapporteur: >                         &nbsp;DiversityFiona AsongaHuman RightsNiels ten OeverNigel RobertsTijani Ben JemaaJurisdictionPaul McGradyOmbudsmanEd MorrisSebastien Bachollet&nbsp;SO/AC >                             Accountability Cheryl Langdon-Orr&nbsp;Staff >                             AccountabilityAvri DoriaTransparencyEd MorrisMichael KaranicolasReviewing the >                             Cooperative Engagement Process (CEP)Ed Morris&nbsp;Guidelines on Good >                             Faith Conduct in Participating in Board >                             Removal DiscussionsLori Schulman &nbsp;&nbsp;Thank you to all who >                           have volunteered so far. Safe travels home, >                         Grace&nbsp; >                       >                         --&nbsp; >                         >                         >                           Grace >                                   Abuhamad >                           >                           >                             Manager, >                                   Public Policy >                             >                             &nbsp; >                             >                             ICANN >                                     | Internet Corporation for Assigned >                                     Names and Numbers >                             >                             801 17th >                                   Street NW, Suite 400 |&nbsp;Washington, DC >                                   20006 >                             >                             Direct: >                                   >                                     +1 202 249 7545 |&nbsp;Mobile: >                                     +1 310 200 7638 >                             >                           >                           &nbsp; >                           >                           >                             >                               Interested >                                       in the IANA Stewardship >                                       Transition?&nbsp; >                               >                             >                           >                         >                       LEARN >                                 MORE.&nbsp;STAY >                                 UPDATED.&nbsp;FOLLOW.&nbsp;ENGAGE.&nbsp; >                     >                   >                   >                   _______________________________________________ >                   Accountability-Cross-Community mailing list >                   Accountability-Cross-Community(a)icann.org >                   https://mm.icann.org/mailman/listinfo/accountability-cross-community >                   >                 >               >               >             >           >         >       >       >       >       >       _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community(a)icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community > >     >     >   > > _______________________________________________Accountability-Cross-Community mailing listAccountability-Cross-Community@icann.orghttps://mm.icann.org/mailman/listinfo/accountability-cross-community_______________________________________________Accountability-Cross-Community mailing listAccountability-Cross-Community@icann.orghttps://mm.icann.org/mailman/listinfo/accountability-cross-community  > _______________________________________________ > > Accountability-Cross-Community mailing list > > Accountability-Cross-Community(a)icann.org > > https://mm.icann.org/mailman/listinfo/accountability-cross-community > > > > > ------------------------------------------------------------------------------------------------------------------------------- > [NIXI is on Social-Media too. Kindly follow us at: > Facebook: https://www.facebook.com/nixiindia & Twitter: @inregistry ] > This e-mail is for the sole use of the intended recipient(s) and may > contain confidential and privileged information. If you are not the > intended recipient, please contact the sender by reply e-mail and destroy > all copies and the original message. Any unauthorized review, use, > disclosure, dissemination, forwarding, printing or copying of this email > is strictly prohibited and appropriate legal action will be taken. > ------------------------------------------------------------------------------------------------- _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community ------------------------------------------------------------------------------------------------------------------------------- [NIXI is on Social-Media too. Kindly follow us at: Facebook: https://www.facebook.com/nixiindia & Twitter: @inregistry ] This e-mail is for the sole use of the intended recipient(s) and may contain confidential and privileged information. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies and the original message. Any unauthorized review, use, disclosure, dissemination, forwarding, printing or copying of this email is strictly prohibited and appropriate legal action will be taken. -------------------------------------------------------------------------------------------------

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premature jurisdiction debates
by Mueller, Milton L July 4, 2016

July 4, 2016

In the reflexive approach, you would ask "what are the institutional mechanisms or procedures to ensure that jurisdiction issue can be addressed in an adverse situation where the US jurisdiction is longer tenable, however rare it may it?" In the absolute rarest of rare cases that the US legislature or judiciary try to interfere with community decisions (the black swan scenario), how would ICANN ensure that this interference is contained/minimised? What are the institutional mechanisms or procedures for addressing the situation where the US (or any other) jurisdiction is no longer hospitable/ideal for the ICANN policymaking or IANA functions? These are the questions that we should be asking in the WS2 on jurisdiction. MM: I think this is a good point. Even advocates of US jurisdiction or those who, like me, think there is just no better alternative and that the disruption and risks caused by a change are not worth the uncertain improvements, can easily agree that there should be procedures or plans for how to respond to interference by the U.S. government. Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology

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