I think #3 is a bit of a fantasy. The idea of all the lawyers sitting in a room, collaborating and singing Kumbaya is not likely to happen. There will inevitably be a back and forth between the sets of lawyers, and each set will need to confer with their clients. Think ping-pong, not tango. On Tue, Jun 30, 2015 at 2:07 AM, Mathieu Weill <mathieu.weill@afnic.fr> wrote:
Dear Greg,
Please note that a slightly amended version has been circulated for consideration during this CCWG call.
Best Mathieu
Le 30/06/2015 07:45, Greg Shatan a écrit :
My comments below.
Greg
On Wed, Jun 24, 2015 at 10:36 PM, Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au> wrote:
Hello All,
Just following up on my comments during the CCWG session this afternoon on the drafting process.
I recommend considering the following approach:
- Identify a sub-team of the CCWG to write a short brief for each bylaws change required - including any draft text that has been developed so far
GSS: Agree that we should have a brief/specifications/terms of reference/term sheet that the CCWG supports, and that the drafting should be done (and to a fair extent has already been done) by a smaller group, since drafting in a group of 40 would be painful and inefficient.
- Get the CCWG external council to confirm that the brief is achievable and is consistent with their earlier advice
GSS: Agree that we should have counsel review what we prepare.
- Get the ICANN legal team to draft bylaws changes consistent with the brief
GSS: Neither agree nor disagree. Whichever legal team prepares the first draft, the other legal team will do what is necessary to deal with issues they note in that draft. Twas ever thus. There may be a modest cost savings if ICANN inside counsel prepares the first draft, but reviewing the first draft will still be a reasonable amount of work for CCWG's counsel.
- the CCWG sub-team confirms that the language meets the brief
GSS: Here is where I most decidedly disagree. We are preparing legal instruments here, with language that needs to be prepared to a particular standard and with a particular style and vocabulary. If ICANN legal prepares the first draft, it will need to go back to CCWG counsel to be reviewed and revised prior to or at the same time as the CCWG itself reviews the draft. I expect ICANN would do the same if we operate in the other direction. In any event, first drafts are rarely, if ever, the final draft; there is always some improvement necessary, even if the parties have agreed completely on their intentions (which is also not that common). It's just the nature of the activity. Of course, the further apart the parties are on substance, the more "rounds" of drafts it takes to come to rest. But, in any event we can expect at least a couple of rounds of drafts before ICANN and the CCWG are satisfied with the result. And we clearly need our counsel to take a leading role from their point of view in "doing the necessary" to make sure the by-law drafts meet the needs and expectations of the CCWG. (Brief soapbox moment: There is as much skill, knowledge and experience involved in the art of legal drafting as there is in any other sophisticated professional activity. The fact that it does not involve manual or numerical dexterity seems to make people think that laymen are more likely to do a credible job of legal drafting, than they would performing surgery or plotting the trajectory of a rocket. DIY legal drafting is a rotten idea, with its own costs and consequences, though admittedly not physical death or destruction -- at least not immediately.)
- where necessary (e.g. if the CCWG sub team does not believe that the draft meets the requirements) get the CCWG external council to confirm that the draft is consistent with the objectives of the brief (use this last step when necessary as we are using public funds to pay for the extra advice and we should be prudent with expenditure)
GSS: I would not characterize this as "extra advice" -- it is critical, core and necessary advice. The bylaws are one of the points of legal execution; it would be highly imprudent to shy away from using counsel at this point, of all points. And the job of outside counsel is not merely to confirm the draft is consistent with the objectives of the brief; it's their job to help us get it right from the CCWG's point of view. As for the use of "public funds" -- perhaps this is a semantic difference, but I think of "public funds" as those appropriated and expended by governments, and we heard numerous times in BA that ICANN is not a government. Semantics aside, all involved are using the same funds, by whatever name, and I hope that ICANN legal, if it takes the first draft, will keep that in mind as they draft so that they come as close as possible to the brief of the CCWG, so that the CCWG's counsel does not have too revise too much when it undertakes its review. "Public funds" aside, what is most important is that we are operating in the "public eye" and keenly aware of the "public trust" that has been placed on the CCWG just as much as it has been placed on ICANN-the-corporation. This is an inflection point in ICANN's history -- not getting it right will have much greater costs -- financial, reputational, governance-wise, etc. -- than a few hours of careful legal review and revision process of the legal tools (i.e., the bylaws) that we are using to achieve a great deal of the objectives that we will have spent thousands and thousands of unpaid and paid hours, a good deal of money, and a great deal of blood, sweat and tears to accomplish. This is not the time to become gun-shy about getting appropriate legal advice -- there is far too much riding on this part of the process to do so.
Consistent with the above, we have every responsibility to work in a cost-effective and efficient manner with counsel and to demand the same from them. Perversely, it's my experience that trying to cut corners with counsel tends to end up costing more and taking more time and/or achieving a less desirable result than staying the course with counsel.
- once the CCWG sub team is happy with the text - it should be reviewed by the whole CCWG, before posting for public comment
GSS: I think it goes without saying that the CCWG will need to review and support everything that is going to be posted for public comment, including without limitation the bylaws. That said, there's no harm in saying it.
For example, you could write a short brief on the changes required to incorporate the AoC reviews. This could include simply a cut and paste of the relevant AoC text - along with any tweeks agreed within the CCWG - maybe changing the proposed timing of reviews, or perhaps the membership of the review team etc.
- ICANN legal can then draft language for the bylaws that is consistent across the whole bylaws document
GSS: I expect that consistency across the bylaws -- both proposed and existing -- will be an element of drafting and review at every step along the way. That said, I'm sure that when the individual pieces all come to rest, there will be an overall review by ICANN legal and CCWG counsel focused on consistency so that both ICANN legal and the CCWG are satisfied that any inconsistencies or unintended consequences have been dealt with. After all, we are all equally invested in getting it right.
Regards, Bruce Tonkin
Best regards,
Greg
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