On Sun, Jan 24, 2016 at 8:10 PM, Nigel Roberts <nigel@channelisles.net> wrote:

Paul is right to be concerned.

'duly taken in to account' means 'followed'.

On 24/01/16 21:32, Greg Shatan wrote:

Paul,

I was halfway through writing an email that said exactly that.

This may be due to the lawyers re-interpreting "duly taken into account"
in a way that I don't agree with and which I think is incorrect. We
have used the term many times in discussing how we deal with public
comments, and I have taken our meaning to be "we will consider it and
give it our full attention, but without any presumption that we will
adopt it." The additional language suggested by the lawyers as a
"clarification" would actually be a substantial change, along the lines
that you highlight. I would also note that this phrase has been in the
Bylaws for many year without any ambiguity noted until now.

Whatever the genesis of this problem, we need to reverse this creeping
presumption.

Greg

On Sun, Jan 24, 2016 at 4:09 PM, Paul Rosenzweig
<paul.rosenzweig@redbranchconsulting.com
<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote:

Is anyone else concerned about the commentary to Annex 11. As I
read our lawyer’s advice, we are now in the position of putting into
place a presumption that the Board will not act inconsistent with
GAC advice – which to me is more binding that making sure that the
advice is duly taken into account. The latter implies that it may
be taken account of and then diverged from, while the former
suggests not. I am not questioning the lawyer’s conclusions.
Rather I am suggesting that we have, mistakenly, created a situation
where government influence is definitely increased. I cannot
support that. More to the point I do not see how the NTIA will
approve it ….____

__ __

Paul____

__ __

Paul Rosenzweig____

paul.rosenzweig@redbranchconsulting.com
<mailto:paul.rosenzweigesq@redbranchconsulting.com> ____

O: +1 (202) 547-0660 <tel:%2B1%20%28202%29%20547-0660>____

M: +1 (202) 329-9650 <tel:%2B1%20%28202%29%20329-9650>____

VOIP: +1 (202) 738-1739 <tel:%2B1%20%28202%29%20738-1739>____

Skype: paul.rosenzweig1066____

Link to my PGP Key
<http://www.redbranchconsulting.com/index.php?option=com_content&view=article&id=19&Itemid=9>____

<http://www.rsaconference.com/events/us16?utm_source=signature&utm_medium=email&utm_campaign=speakers-us2016>____

__ __

*From:*Gregory, Holly [mailto:holly.gregory@sidley.com
<mailto:holly.gregory@sidley.com>]
*Sent:* Sunday, January 24, 2016 7:24 AM
*To:* 'Mathieu Weill' <mathieu.weill@afnic.fr
<mailto:mathieu.weill@afnic.fr>>; 'thomas@rickert.net
<mailto:thomas@rickert.net>' <thomas@rickert.net
<mailto:thomas@rickert.net>>; 'León Felipe Sánchez Ambía'
<leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>>;
'accountability-cross-community@icann.org
<mailto:accountability-cross-community@icann.org>'
<accountability-cross-community@icann.org
<mailto:accountability-cross-community@icann.org>>;
'acct-staff@icann.org <mailto:acct-staff@icann.org>'
<acct-staff@icann.org <mailto:acct-staff@icann.org>>
*Cc:* Sidley ICANN CCWG <sidleyicannccwg@sidley.com
<mailto:sidleyicannccwg@sidley.com>>; Greeley, Amy E.
<AGreeley@sidley.com <mailto:AGreeley@sidley.com>>; Grapsas, Rebecca
<rebecca.grapsas@sidley.com <mailto:rebecca.grapsas@sidley.com>>;
'ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com>'
<ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com>>
*Subject:* [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9,
10, 11____

__ __

__ __

__ __

Dear CCWG ACCT Co-Chairs, Members, Participants and ICANN Staff, ____

__ __

We are writing to raise with you the following issues that we
identified in our high-level review of the above- referenced
Annexes:____

__ __

*_Annex 1 (GAC as Decisional Participant)_*: We did not have any
high-level comments on this Annex.____

*______*

*_Annex 8 (Reconsideration)_*: With respect to the timing
requirements discussed in Paragraph 25 and elsewhere in the Annex,
there appears to be some inconsistency: If the Board Governance
Committee (BGC) takes its full 90 days to make a recommendation
after receiving the request, the Board would not meet its 60 day
timeline, and it would be tight for it to meet the 120 day time line
(particularly if the requestor files a rebuttal to the BGC’s
recommendation within 15 days of receipt). /We recommend that these
time frames be re-considered to remove the inconsistency, for
example by deleting the language relating to Board action within 60
days and, if necessary, providing the Board with additional time to
consider the BGC recommendations/.____

__ __

*_Annex 9 (AOC Reviews)_*: /We recommend that consideration be given
to further clarifying the Review Team provision in Paragraph 54 (1)
to specify the type of “diversity” desired (geographic or otherwise)
for Review Team members and (2) to state whether, in determining the
composition of the members of the Review Teams they select, the
group of chairs can solicit additional nominees or appoint less than
21 members to avoid potential overrepresentation of particular ACs
or SOs if some nominate less than 3 members./ ____

__ __

*_Annex 10 (SO/AC Accountability)_*: We did not have any high-level
comments on this Annex. ____

*______*

*_Annex 11 (GAC Advice)_*: ____

__ __

We were asked to review the current Bylaws provision addressing GAC
advice and determine whether the ambiguities we identified in our
review of the proposed revisions to this provision are new or stem
from ambiguities under the current Bylaws text. We have determined
that there are ambiguities under the current Bylaws text, which
provides as follows:____

*ICANN Bylaws Article XI, Section 2.1.j.*The advice of the
Governmental Advisory Committee on public policy matters shall be
/duly taken into account/, both in the formulation and adoption of
policies. In the event that the ICANN Board determines to take an
action that is not consistent with the Governmental Advisory
Committee advice, it shall so inform the Committee and state the
reasons why it decided not to follow that advice. The Governmental
Advisory Committee and the ICANN Board will then try, in good faith
and in a timely and efficient manner, to find a mutually acceptable
solution.____

__ __

The phrase “duly taken into account” is ambiguous, but reading it
together with the next sentence, which requires that the Board
follow a specific procedure before taking actions inconsistent with
GAC advice, we believe the best interpretation of this phrase is to
mean “do not act inconsistently with.” Based on this
interpretation, /we recommend the following clarification
(underlined) to the first sentence of this Bylaws provision: “The
advice of the Gov//ernmental Advisory Committee on public policy
matters shall be duly taken into account, both in the formulation
and adoption of policies_, and**ICANN shall not act inconsistently
with that advice except as otherwise provided in this paragraph_/.” ____

__ __

We also note that there is no meaningful legal distinction between
voting and determining to take an action, as some commenters have
suggested. The only way the Board can legally determine or decide
anything under California law is by voting. ____

__ __

The proposed addition to the current Bylaws text is underlined
below:____

__ __

*ICANN Bylaws Article XI, Section 2.1.j.*The advice of the
Governmental Advisory Committee on public policy matters shall be
duly taken into account, both in the formulation and adoption of
policies. In the event that the ICANN Board determines to take an
action that is not consistent with the Governmental Advisory
Committee advice, it shall so inform the Committee and state the
reasons why it decided not to follow that advice. _Any Governmental
Advisory Committee advice approved by a full Governmental Advisory
Committee consensus, understood to mean the practice of adopting
decisions by general agreement in the absence of any formal
objection, may only be rejected by a vote of 2/3 of the Board,
and_ the Governmental Advisory Committee and the ICANN Board will
then try, in good faith and in a timely and efficient manner, to
find a mutually acceptable solution.____

__ __

Based on our interpretation of the current Bylaws text, described
above, we believe this proposed provision results in the following
process:____

__1.__If GAC provides advice (whether by a full GAC consensus or a
lesser approval threshold), the ICANN Board must “duly take[] into
account” that advice -- i.e., ICANN must not act inconsistently with
that advice, unless #2 and/or #3 below apply. ____

__2.__If GAC provides advice (whether by a full GAC consensus or a
lesser approval threshold), and the ICANN Board decides to take an
action inconsistent with that advice, the ICANN Board must first
give GAC notice and provide a rationale. ____

__·__In addition, f the GAC advice was by a full GAC consensus, the
ICANN Board may decide to take an action inconsistent with that
advice only by a vote of 2/3 of the ICANN Board. If that 2/3
threshold is reached, GAC and ICANN must then try in good faith to
find a mutually acceptable solution. If the 2/3 threshold is not
reached, ICANN is required to act consistently with the consensus
GAC advice. ____

/We recommend that consideration be given to further clarifying this
process, and we agree with commenters who have concluded that the
proposed provision does not impose an affirmative obligation upon
ICANN’s Board to vote on GAC consensus advice every time that advice
is provided/. ____

We note that additional Bylaws language is being proposed to clarify
that, in any case, the Board needs to act in compliance with the
ICANN Bylaws. Thus, if the Board were to determine that following
GAC advice would result in non-compliance with the Bylaws, the Board
should be able to reject the advice (with a majority or two-thirds
vote, depending on whether the GAC advice was consensus advice) and
explain its position to GAC. ____

Please let us know if we can assist in any way with your further
consideration of these issues.____

__ __

Kind regards,____

Holly and Rosemary____

__ __

*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@sidley.com <mailto:holly.gregory@sidley.com>____

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<http://www.sidley.com/>*SIDLEY AUSTIN LLP*____

____

__ __

__ __

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