Hi all,can I suggest we end the discussion on this?
It has been pointed out by several colleagues in the CCWG both by e-mail as well as on the phone that there seems to be a misunderstanding. Greg has also sent a few notes explaining what was and what was not said.
I will meet Kavouss tomorrow at the WSIS forum and hopefully we can resolve any remaining issues on this topic.
Thank you all,
Thomas
Dear Kavouss,Could you please make clear what you are referring to? I have a hardtime understanding what you mean.Best,NielsOn 05/03/2016 06:48 PM, Kavouss Arasteh wrote:Dear Niels
Thank you very much for yr message
May you pls advise why you separate GAC from other chartering organisations ?
Why such discrimination is made?
Do you associate yourself with those who clearly and openly wish to exclude GAC from any and all process?
I am surprised to hear from you differentiating GAC from other chartering organisations
Is GAC a step child compared with other SO/AC?
I just do not understand why GAC should be treated different from other chartering organisations?
Regards
Kavousd
Sent from my iPhone
On 3 May 2016, at 18:35, Niels ten Oever <lists@nielstenoever.net> wrote:
Fully agree with Greg.
Best,
Niels
On 05/03/2016 05:46 PM, Greg Shatan wrote:
Responses inline below.
On Tue, May 3, 2016 at 1:33 AM, Seun Ojedeji <seun.ojedeji@gmail.com
<mailto:seun.ojedeji@gmail.com>> wrote:
Greg, my reference was bullet point 6 of paragraph 28 and not 27.
This seems like an attempt to create an aura of misunderstanding where
there is none. Paragraph 27 is a graphic with (quite clearly) no bullet
points. My reference was a simple typo, nothing more. Hardly worthy of
the lead sentence of your reply.
I have never written that high standard be applied;
You seem to be writing exactly that, repeatedly. Unless, I
misunderstand your viewpoint, you contend that the approval of all
Chartering Organizations be required. With the Work Stream 1 Proposal,
it was sufficient that the Proposal had the approval of the ALAC, ASO,
ccNSO, GNSO and SSAC and a non-objection by the GAC. Isn't it your
position that this should be insufficient for the FoI? If so, that is
unquestionably a higher standard.
I have always quoted what the report clearly stated, which is that
approval of CO was required for the FoI
I disagree that this is what the report clearly states. You are using
the parenthetical as your sole support for the claim that the CCWG
wanted a heightened level of approval for the FOI. My recollection was
that this parenthetical was put in solely to clarify that the FOI does
not go directly from the WG to the Board, but rather needs a a review by
the COs. I don't think there is any basis for bootstrapping that
statement into a heightened standard of review and approval -- but
apparently you do.
but you seem to counter that with intent and a reference and I have
told you was rather referring to board's approval process(bullet6
para28). By the way, the phrase "including Chartering Organizations’
approval" was repeated 3 times in that report. It's not just a
coincidence.
Again, that's the parenthetical. I've dealt with that above and
before. I've asked you for a clear and unequivocal statement that shows
that the CCWG intended to create a unique and higher standard for the
Chartering Organization's review of the FOI. You have not provided
one. Clearly, this is because such a statement does not exist. Again,
given all the time we have spent saying and writing things about levels
of review, it is unimaginable that we would create a higher level of
review with no explanation or discussion. As such, the idea that the
Proposal should be seen as creating such a higher level of review solely
for the FOI is unsupportable.
They say "iron sharpen iron" as I am not a lawyer, I obviously
cannot convince you on this one ;-). At this point, I will rest my
case since irrespective of what I say and the references I provide
in the report, you counter it with intent and what was said.
I've dealt with your references, which are roundly unconvincing. At no
point have I relied on "what was said" in the sense of a verbal
utterance. As pointed out before, in colloquial English, it's common to
write that "a report says" something, when what is meant is that
something is written in the report. So again that's an attempt to
create an aura of misunderstanding where there is none.
I hope my point has been duly noted by the Co-Chairs, irrespective
of route we take it should be based on the decision of the group as
per the charter. Apologies in advance for the upcoming meeting (will
join if I can)
Regards
Sent from my LG G4
Kindly excuse brevity and typos
On 2 May 2016 11:08 p.m., "Greg Shatan" <gregshatanipc@gmail.com
<mailto:gregshatanipc@gmail.com>> wrote:
I disagree. Paragraph 6, which was repeated twice more in the
Proposal, was not merely a summary of the bylaw language. It
stated the _intent_ behind the "bylaw" language. I don't think
any of the Proposal is to "taken lightly," and it was not our
intent that the "draft bylaw" language have any special place in
indicating the intent of the CCWG vs. the rest of the text of
the proposal. We also recognized that the CCWG's attempts to
draft legally sufficient text were not sufficient, which is why
paragraph 23 is introduced by a statement (which you chose not
to quote) that the recommendation is to "Include a Bylaw with
the following */intent/* in Work Stream 1 recommendations"
[emphasis added], which clearly indicates that the text of the
"draft bylaw" sections in our proposal was not intended to be
adopted verbatim. The Proposal needs to be read as a whole, and
it's incorrect to assume that greater weight should be given to
language in a "bylaws" section.
Nothing you have put forward even touches on whether the review
by the Chartering Organizations was going to be done to a unique
and higher standard, much less states it "clearly and
unequivocally." So, no, there's nothing here that shows that
the CCWG wanted to require a higher threshold from the
Chartering Organizations than is used for all the rest of the
work of the CCWG.
Finally, if there was "quite a huge debate during the
discussion" on this particular point, show me in the
transcripts, recordings or meeting notes. Bullet point 6 of
paragraph 27 confirms nothing of the sort -- it just simply
parrots the parenthetical. I think we can all agree that there
was no debate on this particular point, and that the reference
to "Chartering Organizations' approval" was not intended to
create a special threshold just for the FOI, and that any
contention otherwise is simply a misreading of the CCWG Proposal.
I hope that is "clear and unequivocal" enough.
On Mon, May 2, 2016 at 5:49 PM, Seun Ojedeji
<seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> wrote:
I think we can just agree that paragraph 6(which you
referenced) poorly summarised paragraph 23, a section of
which I quote below :
"...This Bylaw provision will not enter into force until (1)
a Framework of
Interpretation for Human Rights (FOI-HR) is developed by the
CCWG-Accountability as a
consensus recommendation in Work Stream 2 (including
Chartering Organizations’ approval)
and (2) the FOI-HR is approved by the ICANN Board using the
same process and criteria it has
committed to use to consider the Work Stream 1 recommendations.”
OR the summary was indeed referring to the approval process
to be used by the board as I think that was quite a huge
debate during the discussion and bullet point 6 of paragraph
28 of the report confirms that. Below:
"Considering how, if at all, this Bylaw will affect how
ICANN’s operations are carried out once an FOI-HR is
developed by the CCWG-Accountability as a consensus
recommendation in Work Stream 2 *(including Chartering
Organizations’ approval)* and the *FOI-HR is approved by the
ICANN Board using the same process and criteria it has
committed to use to consider the Work Stream 1 recommendations*"
Pay attention to the sections stared! Again that same bullet
point repeated the phrase "(including Chartering
Organizations’ approval)". You may also want to note that
paragraph 23 was actually a proposed bylaw text and not just
one of those texts that can be taken lightly.
I hope that is "clear and unequivocal" enough
Regards
Sent from my LG G4
Kindly excuse brevity and typos
On 2 May 2016 9:20 p.m., "Greg Shatan"
<gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>>
wrote:
I am also referring to what we [said/wrote]* in the
report, which is the following:
"The proposed draft Bylaw also clarifies that no IRP
challenges can be made on the grounds of this Bylaw
until a Framework of Interpretation on Human Rights
(FOI-HR) is developed and approved as part of Work
Stream 2 activities. It further clarifies that
*acceptance of the **FOI**-HR will require the same
process as for Work Stream 1 recommendations* (as agreed
for all Work Stream 2 recommendations)."
We said ... er sorry .. wrote this *_three_* times in
the report, and we need to give this effect. The
language in the draft circulated for comment is
inconsistent with this statement, to the extent that it
appears to require the positive approval of all
Chartering Organizations, which would be a
_different_ process than the one used for Work Stream 1
recommendations. As such, the draft needs to be corrected.
I was on the calls and email exchanges when the
parenthetical about the chartering organizations was
inserted in the "bylaws" language in the Proposal. All
that was meant by the insertion was to clarify that the
FoI did not go straight from Working Group approval to
the Board, but had to be reviewed by the Chartering
Organizations first, just as the WS1 recommendations
were reviewed. There was never any discussion or intent
to imply that a higher standard of approval was needed
for the FoI vs. all other CCWG recommendations.
If anyone can find a clear and unequivocal statement
that shows the CCWG meant to have a heightened standard
for the FoI, I'll reconsider my view. However, I'm
confident there is no such statement. We spent many,
many hours of discussing and drafting sections on levels
of approval for the Empowered Community and relating to
levels of approval within the GAC. As such, it defies
logic to claim that the simple insertion of a
parenthetical, without any specific discussion or
explanation of a heightened standard, created a
requirement for unanimous and/or positive approval.
Greg
______
* You are inventing a dichotomy where there is none. In
either case, I was referring to the report, not to some
verbal utterance. I'm sorry if my somewhat colloquial
use of "said" confused you. It's perfectly acceptable
to use "said" to refer to a written document, at least
in everyday usage.
On Mon, May 2, 2016 at 11:10 AM, Seun Ojedeji
<seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>>
wrote:
Depends on how you are interpreting the word
"bundle"; the WS1 was presented as a single
document, while some COs decided to approve/respond
recommendation by recommendation, others approved
the document as a whole. Perhaps a simple
application of the report(if you want to avoid round
trips proposed in the report without distorting the
intent) will be to highlight FoI as a single
recommendation in WS2 which gives the COs the option
to approve/reject it out rightly and then the CCWG
can determine what to do with the FoI based on the
outcome of the COs approval process.
On your second point, at this juncture I am not
talking about what we said but rather about what we
WROTE in the report, which is what anyone who have
not followed the process would rely upon. So do you
want to reflect "what we said" or "what we wrote"
either of them is fine by me but we should be clear
on the path we have chosen, knowing it's
implications as well.
Regards
Sent from my LG G4
Kindly excuse brevity and typos
On 2 May 2016 3:51 p.m., "Greg Shatan"
<gregshatanipc@gmail.com
<mailto:gregshatanipc@gmail.com>> wrote:
At no point did we say that the FoI would be
bundled with other WS2 recommendations as a
complete package. Indeed, we've never said that
any of the WS2 projects had to be bundled with
others.
At no point did we say that there would be a
special process for approving the FoI. It
should be the same as WS1, which contemplates a
review by the Chartering Organizations, and then
allows the CCWG to forward recommendation to the
Board even if less than all of the COs approve
of the recommendation.
As long as we can find ways to reflect that
clearly, we will be carrying out the intent of
the Proposal.
Greg
On Mon, May 2, 2016 at 10:43 AM, Seun Ojedeji
<seun.ojedeji@gmail.com
<mailto:seun.ojedeji@gmail.com>> wrote:
Hello Thomas,
If I process this correctly, it implies
approval of the FoI will be done based on
ratification process in the CCWG charter,
which is different from approval of the
whole WS2 package as per the charter.
If that is it, then I will say it's somewhat
closer to what was proposed in the report
(even though the report did not mention that
CO ratification of FoI is based on the charter).
Regards
Sent from my LG G4
Kindly excuse brevity and typos
On 2 May 2016 3:24 p.m., "Thomas Rickert"
<thomas@rickert.net
<mailto:thomas@rickert.net>> wrote:
Hi all,
Tijani has proposed a solution at the
end of his latest e-mail:
I understand that the first proposal
made the approval of all the chartering
organizations necessary, The
modification should keep the reference
to the ratification of the chartering
organizations and add "as defined in the
CCWG charter“.
Would that be a way forward?
Best,
Thomas
Am 02.05.2016 um 16:19 schrieb Seun
Ojedeji <seun.ojedeji@gmail.com
<mailto:seun.ojedeji@gmail.com>>:
Hello Niels,
I think we may just be playing around
with words here, definitely you
understand Tijani's concern ;-). Let
me attempt to spell out(even though I
have done this before) my
understanding of the report which I
must say is obvious:
1. The report clearly used the phrase
"...*including* approval of chartering
organisations"
2. Equating that to mean that it's
equivalent to the CO approval within
CCWG may be out of order because as
per the charter irrespective of number
of support from CO, the package goes
to board for approval.
3. The intent of item 2 above is not
the same thing as item 1; What I
understand is that the FoI as a
critical document it is needs to be
developed during WS2, approved by the
CO and incoporated into the WS2
proposal which is then sent to COs for
approval as a complete package.
That said, i will again say that if
the goal is to reflect what was
written in the report then we are out
of order. However we may just agree
that what we have done is correcting a
*mistake* in the report through the
bylaw. In that case, we should present
it as such and not on claims that the
report did not say approval of CO is
required.
Regards
Sent from my LG G4
Kindly excuse brevity and typos
On 2 May 2016 9:40 a.m., "Niels ten
Oever" <lists@nielstenoever.net
<mailto:lists@nielstenoever.net>> wrote:
Hi Tijani,
But the chartering organizations
are mentioned in the charter of the
CCWG, so am not sure if I
understand your concern.
Best,
Niels
On 05/02/2016 10:22 AM, Tijani BEN
JEMAA wrote:
Hi Niels,
The last modification of the
bylaws proposed by the lawyers
didn’t make
any reference to the chartering
organizations approval while it is
clearly mentioned in the CCWG
last proposal ratified by the
chartering
organizations.
Have a nice day
-----------------------------------------------------------------------------
*Tijani BEN JEMAA*
Executive Director
Mediterranean Federation of
Internet Associations (*FMAI*)
Phone: +216 98 330 114
<tel:%2B216%2098%20330%20114>
+216 52 385 114
<tel:%2B216%2052%20385%20114>
-----------------------------------------------------------------------------
Le 2 mai 2016 à 09:11, Niels
ten Oever <lists@nielstenoever.net
<mailto:lists@nielstenoever.net>
<mailto:lists@nielstenoever.net
<mailto:lists@nielstenoever.net>>>
a écrit :
Dear Tijani and Kavouss,
Could you please indicate where
the proposed text is not
consistent with
the report? Concrete references
would be helpful for me to better
understand your point.
Thanks in advance,
Niels
On 05/02/2016 09:38 AM, Kavouss
Arasteh wrote:
Tijani +1
I fully agree with Tijani
People misuse the opportunity
to make modifications that were
not agreed
during the lkast 16 months
NO CHANGE NO MODIFICATIONS.
During the WSIS I WILL tell
everybody that there is no
supervision nor
control on what we have agreed
and the people will make whatever
change
they wish without the
agreements of the others
KAVOUSS
2016-05-02 8:14 GMT+02:00
Tijani BEN JEMAA
<tijani.benjemaa@topnet.tn
<mailto:tijani.benjemaa@topnet.tn>
<mailto:tijani.benjemaa@topnet.tn
<mailto:tijani.benjemaa@topnet.tn>>
<mailto:tijani.benjemaa@topnet.tn
<mailto:tijani.benjemaa@topnet.tn>>>:
Mathieu and all,
The modification proposed
doesn’t reflect the CCWG last proposal
approved by the chartering
organization. I don’t think we are
allowed to write bylaws
that are not the exact
interpretation of the
approved document that had
the CCWG consensus and the charting
organizations ratification.
-----------------------------------------------------------------------------
*Tijani BEN JEMAA*
Executive Director
Mediterranean Federation of
Internet Associations (*FMAI*)
Phone: +216 98 330 114
<tel:%2B216%2098%20330%20114>
+216 52 385 114
<tel:%2B216%2052%20385%20114>
-----------------------------------------------------------------------------
Le 2 mai 2016 à 04:23,
Kavouss Arasteh
<kavouss.arasteh@gmail.com
<mailto:kavouss.arasteh@gmail.com>
<mailto:kavouss.arasteh@gmail.com
<mailto:kavouss.arasteh@gmail.com>>
<mailto:kavouss.arasteh@gmail.com
<mailto:kavouss.arasteh@gmail.com>>>
a écrit :
Mathieu,
Tks
Pls NOTE MY SERIOUS
OBJECTIONS to:
1.NOT MENTIONING REFERNCE
TO THE APPROVAL OF CHARTERING
ORGANIZATIONBS in HR
2. GIVE GIVE A BLANKET
AGREEMENT TO THE DOCUMENTS WHICH
YET TO BE
DRAFTED.
3. Making so many changes
to the Third proposals . We must avoid
having a new proposal
Kavouss
2016-05-01 22:42 GMT+02:00
Mathieu Weill
<mathieu.weill@afnic.fr
<mailto:mathieu.weill@afnic.fr>
<mailto:mathieu.weill@afnic.fr
<mailto:mathieu.weill@afnic.fr>>
<mailto:mathieu.weill@afnic.fr
<mailto:mathieu.weill@afnic.fr>>>:
Dear colleagues,
Please find below for
your consideration some
suggestions from
our lawyers for
clarification of the bylaw
language regarding
the Human rights FoI.
This follows our request during the
previous call.
Best,
Mathieu Weill
---------------
Depuis mon mobile,
désolé pour le style
Début du message
transféré :
*Expéditeur:*
"Gregory, Holly"
<holly.gregory@sidley.com
<mailto:holly.gregory@sidley.com>
<mailto:holly.gregory@sidley.com
<mailto:holly.gregory@sidley.com>>
<mailto:holly.gregory@sidley.com
<mailto:holly.gregory@sidley.com>>>
*Date:* 1 mai 2016
19:10:53 UTC+2
*Destinataire:*
"'Mathieu Weill'"
<mathieu.weill@afnic.fr
<mailto:mathieu.weill@afnic.fr>
<mailto:mathieu.weill@afnic.fr
<mailto:mathieu.weill@afnic.fr>>
<mailto:mathieu.weill@afnic.fr
<mailto:mathieu.weill@afnic.fr>>>,
"'Thomas Rickert'"
<thomas@rickert.net
<mailto:thomas@rickert.net>
<mailto:thomas@rickert.net
<mailto:thomas@rickert.net>>
<mailto:thomas@rickert.net
<mailto:thomas@rickert.net>>>,
León Felipe
Sánchez Ambía
<leonfelipe@sanchez.mx
<mailto:leonfelipe@sanchez.mx>
<mailto:leonfelipe@sanchez.mx
<mailto:leonfelipe@sanchez.mx>>
<mailto:leonfelipe@sanchez.mx
<mailto:leonfelipe@sanchez.mx>>>,
"bylaws-coord@icann.org
<mailto:bylaws-coord@icann.org>
<mailto:bylaws-coord@icann.org
<mailto:bylaws-coord@icann.org>>
<mailto:bylaws-coord@icann.org
<mailto:bylaws-coord@icann.org>>"
<bylaws-coord@icann.org
<mailto:bylaws-coord@icann.org>
<mailto:bylaws-coord@icann.org
<mailto:bylaws-coord@icann.org>>
<mailto:bylaws-coord@icann.org
<mailto:bylaws-coord@icann.org>>>
*Cc:* ACCT-Staff
<acct-staff@icann.org
<mailto:acct-staff@icann.org>
<mailto:acct-staff@icann.org
<mailto:acct-staff@icann.org>>
<mailto:acct-staff@icann.org
<mailto:acct-staff@icann.org>>>,
"Rosemary E. Fei"
<rfei@adlercolvin.com
<mailto:rfei@adlercolvin.com>
<mailto:rfei@adlercolvin.com
<mailto:rfei@adlercolvin.com>>
<mailto:rfei@adlercolvin.com
<mailto:rfei@adlercolvin.com>>>,
"ICANN@adlercolvin.com
<mailto:ICANN@adlercolvin.com>
<mailto:ICANN@adlercolvin.com
<mailto:ICANN@adlercolvin.com>>
<mailto:ICANN@adlercolvin.com
<mailto:ICANN@adlercolvin.com>>"
<ICANN@adlercolvin.com
<mailto:ICANN@adlercolvin.com>
<mailto:ICANN@adlercolvin.com
<mailto:ICANN@adlercolvin.com>>
<mailto:ICANN@adlercolvin.com
<mailto:ICANN@adlercolvin.com>>>,
Sidley ICANN CCWG
<sidleyicannccwg@sidley.com
<mailto:sidleyicannccwg@sidley.com>
<mailto:sidleyicannccwg@sidley.com
<mailto:sidleyicannccwg@sidley.com>>
<mailto:sidleyicannccwg@sidley.com
<mailto:sidleyicannccwg@sidley.com>>>,
"Samantha.Eisner@icann.org
<mailto:Samantha.Eisner@icann.org>
<mailto:Samantha.Eisner@icann.org
<mailto:Samantha.Eisner@icann.org>>
<mailto:Samantha.Eisner@icann.org
<mailto:Samantha.Eisner@icann.org>>"
<Samantha.Eisner@icann.org
<mailto:Samantha.Eisner@icann.org>
<mailto:Samantha.Eisner@icann.org
<mailto:Samantha.Eisner@icann.org>> <mailto:Samantha.Eisner@icann.org
<mailto:Samantha.Eisner@icann.org>>>
*Objet:* *Human
Rights Transition Provision:
Bylaws Section
27.3(a)*
Dear Co-Chairs and
Bylaws Coordinating Group:
On the CCWG call last
week, there was a discussion of the
Bylaws language
regarding the transition provision
on Human
Rights*//*[27.3(a)]
and it was suggested that the
language be
clarified to ensure
that the same approval process
used for
Work Stream 1 would
apply. We propose the following
clarifying edits. We
suggest that you share this with the
CCWG and if there is
agreement, the following proposed edit
should be included in
the CCWG’s public comment:____
Redline:____
*Section 27.3. HUMAN
RIGHTS____*
__ __
(a) The Core Value
set forth in Section 1.2(b)(viii)
shall
have no force or
effect unless and until a framework of
interpretation for
human rights (“*FOI-HR*”) is
approved by
(i) approved for
submission to the Board by the
CCWG-Accountability
as a consensus recommendation in Work
Stream 2, and (ii)
approved by each of the
CCWG-Accountability’s
chartering organizations and (iii) the
Board, (in each
thecase of the Board, using the
same process
and criteria used by
the Boardto consider the as for Work
Stream 1
Recommendations).____
__ __
(b) No person or
entity shall be entitled to invoke the
reconsideration
process provided in Section 4.2,
or the
independent review
process provided in Section 4.3, based
solely on the
inclusion of the Core Value set
forth in
Section 1.2(b)(viii)
(i) until after the FOI-HR
contemplated
by Section 27.3(a) is
in place or (ii) for actions of ICANN
or the Board that
occurred prior to the____
effectiveness of the
FOI-HR.____
Clean:____
*Section 27.3. HUMAN
RIGHTS____*
__ __
(a) The Core Value
set forth in Section 1.2(b)(viii)
shall
have no force or
effect unless and until a framework of
interpretation for
human rights (“*FOI-HR*”) is (i)
approved
for submission to the
Board by the CCWG-Accountability as a
consensus
recommendation in Work Stream 2
and (ii) approved
by the Board, in each
case, using the same process and
criteria as for Work
Stream 1 Recommendations.____
__ __
(b) No person or
entity shall be entitled to invoke the
reconsideration
process provided in Section 4.2,
or the
independent review
process provided in Section 4.3, based
solely on the
inclusion of the Core Value set
forth in
Section 1.2(b)(viii)
(i) until after the FOI-HR
contemplated
by Section 27.3(a) is
in place or (ii) for actions of ICANN
or the Board that
occurred prior to the____
effectiveness of the
FOI-HR.____
Kind regards, ____
__ __
Holly and Rosemary____
__ __
__ __
*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
<tel:%2B1%20212%20839%205853>
holly.gregory@sidley.com
<mailto:holly.gregory@sidley.com>
<mailto:holly.gregory@sidley.com
<mailto:holly.gregory@sidley.com>>
<mailto:holly.gregory@sidley.com
<mailto:holly.gregory@sidley.com>>
www.sidley.com
<http://www.sidley.com/>
<http://www.sidley.com/>
<http://www.sidley.com/>____
http://www.sidley.com/files/upload/signatures/SA-autosig.png
<http://www.sidley.com/> *SIDLEY
AUSTIN LLP*____
__ __
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