Dear Farzaneh, Dear Colleagues, Indeed during the call with lawyers there was a mention of comments / memos that were not sent to the full group. We have researched (and will provide Holly and Rosemary the opportunity to confirm or not) whatever memos would not have been passed on in collaboration with the lawyers. Two memos were found in this research and you will find them below and attached, along with some context. 1) A memo received on Dec 24 regarding Draft AoC Bylaw provisions This memo was following a request to advance Bylaw drafting. It was not forwarded because we started a discussion on the relevance and timing of that Bylaw drafting exercice in light of the comments received. Then it fell into end of year break oblivion. This is going to be a useful input to our discussion on Recommendation #9 next week. 2) A memo bringing our attention to a specific point of the Board’s comment to our 3rd draft report regarding Director independence. Since this was not a certified request a discussion was engaged between co chairs suggesting we share it with the whole group. But we never closed this discussion. Our mistake. We will now ask staff to add this to the list of legal memos. Regarding the way lawyers will provide input in the current phase of review of our 3rd draft, as was discussed during the call with them last week they will provide the CCWG, for each recommendation, with : - High level comments if need be after 1st reading - Detailed edits after 2nd reading. - Specific memos when requested (such as the Human rights memo we have received in the last few hours) I hope this helps clarify. Thank you for your constructive feedback and your focus on facts. This is very helpful to the full group. Thomas, Leon & Mathieu Co chairs De : farzaneh badii [mailto:farzaneh.badii@gmail.com] Envoyé : mercredi 13 janvier 2016 20:58 À : Mathieu Weill Cc : Accountability Cross Community Objet : Re: [CCWG-ACCT] Timing and incorporation of Lawyers input Dear Mathieu, In your call with the lawyers, Holly said the memo she wanted to send to CCWG was not sent. Can you please clarify which memo was not sent and send it as soon as possible. My call for transparent communication gets ignored all the time. Could you please clarify how will the lawyers share their feedback and editorial comments? Will it be privately sent to you then you will send them privately to staff? I hope this time I get an answer to my request. It could just be a no with specifying reasons. Best Farzaneh Dear Colleagues, Last week, the co chairs and lawyers held a call to coordinate the collection and incorporation of lawyers input into our report. As was mentioned on this list, during finalization of the 3rd draft report, some comments from our lawyers could not be taken into account and we wanted to remedy this issue going forward. We have agreed that lawyers will provide feedback, through the co chairs, on the various recommendations in two steps : - After first reading, lawyers will share high level feedbacks or concerns so they can be discussed as part of the 2nd reading meeting ; - After second reading, lawyers will provide detailed edits when appropriate. These edits will be incorporated unless they create a substantial change. In this case, new discussion on the list would take place. With this process, our group can draw upon the vary valuable skills and experience from our lawyers all through our discussions. This memo can be considered as certifying request for review for the lawyers. Best regards, Thomas, Leon and Mathieu De : accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] De la part de Brenda Brewer Envoyé : lundi 11 janvier 2016 20:37 À : CCWG-Accountability Objet : [CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT Co-Chairs and Lawyers Meeting (8 January) Hello all, The notes, recordings and transcripts for CCWG ACCT Co-Chairs and Lawyers (8 January) will be available here: https://community.icann.org/x/15dlAw A copy of the notes may be found below. Thank you. Kind regards, Brenda Notes These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript. HJGregory - reasoning for call - at this critical time in the project want to discuss if the team could be more useful to the process. Concerns regarding the edition of documents since their comments are not being included. Also need greater clarity about which of our comments get posted. Uncomfortable with the certification requirements but this should not apply to the drafting of documents. We would also expect to understand what is expected for implementation so we can reserve the resources accordingly. Finally need guidance on Marrakech given participation by phone would not be practical. MWeill - Thank you for your directness. Looking at your questions. On integrating comments - the timeframe did not allow us to work with smaller comments. The co-chairs initially focused on any major comments. TRickert - we are going through different phases. Making too many changes in any version of the document would cause concern to the community. Going into details too much can distract people from focusing on the major issues. So a balance must found between what legal and staff can do. HJGregory - we understand you concerns but wanted to ensure that our concerns were clear. This being said we would recommend posting our comments to the entire group and that the group is our client. Often we are not involved on an issue does not mean we have opined in any fashion. There may be a misconception on the level of comments from the lawyers wrt the 3rd draft. MWeill - we are editing the 3rd version currently - we have to consider your input more up front. But we have to find a way to make this efficient for everyone. Given we are working on recommendation by recommendation we could ask for legal comments on a per recommendation which has had a first reading. HJGregory - this sounds like a good idea, but the answer to dealing with lawyer comments is not to ignore them. TRickert - We agree with you but we have been working to incredibly tight schedules. RMFrei - we need to understand why our comments are taken or not. TRickert - Understand but the new interactive approach should handle this issue. Documents that go out after the first reading will include all the lawyer comments. We should also document which comments are accepted or not. HJGregory - this sounds acceptable. MWeill - next implementation HJGregory - support using the details to implementation. At some point the implementation cannot be made by the full CCWG. Also understand the cost implications for ICANN. As such implementation should not be with done with the full group. MWeill - was not the strategy of oversight groups for implementation not ok. HJGregory - concern that using the same group of people for oversight and uncertain they can get above trying to line edit vs checking for consistency. MWeill - Understand that this is a challenge and there is no way around it. This is in part because of community experience with other implementation exercises having generated unexpected results. HJGregory - Would encourage the co-chairs to help the oversight participants that the process is going to be different - it will not be interactive drafting - lawyers will draft the documents and the oversight will group can comment on if it matches the guidelines. We will get there. Implementation needs to be a different process. TRicket - Implementation is about ensuring that the group's wishes and the work product. But understand we have to streamline to make it efficient. HJGregory - Marrakesh - we have real concerns that we can be effective via the telephone. Understands it depends on what the requirements are given where we are. MWeill - currently expecting ICANN55 to scope WS2 and would not expect lawyers would be required for this. There would also implementation work on WS1. So we do not expect the draft Bylaws will be ready for ICANN 55. HJGregory - one approach could be for us to book refundable airline tickets and as time progresses we can decide if we are needed. As such we should make reservations which can be cancelled. MWeill - the IRP skill set would be needed in Marrakesh - but we would expect that the total number of lawyers on the ground would be less than previously. RMFei - I will probably sit this one out if the focus will be IRP. So I will wait to figure this out. HJGregory - what could we be doing to help you more.? please let us know. TRickert - thanks for the offer we will need to think about it some more. Things are moving quite a bit, commenting ad hoc on every suggestion that is circulated. After the first reading we publish this to the list and lawyer comments would be best there. HJGregory - agree with this. HJGregory - maybe the first step should be to reach out to Jones Day to understand their risk analysis of this. RMFrei - also not everything is black and white - there are some judgement call. TR and MW - in case lawyers have concerns about provisions that currently exist in the Bylaws, and may not be within the CCWG remit, they should discuss with JD first. RMFrei - on current process for reviewing changes to recs.? HJGregory - we should review materials from scratch? TRickert - the lawyers would share their high level comments on each recommendation / agenda item after 1st reading, then provide detailed feedback after 2nd reading . best to get your input after the first reading where you can insert your comments. Acceptable? HJGregory - yes. TRickert - certification of human rights question. The reason it makes sense to certify this because ICANN believes it is opening significant risk. Need to understand vs current risks. HJGregory - need to understand what you mean by human rights. HJGregory - this is it for us. Conclusion of the call. _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community