Dear Distinguished Grec Thank you very much for your message. You are sticking to your own interpretation of Duly "duly taken into account" absolutely does not mean "followed." with which I disagree .I understand your views about the GAC but should not influence the very meaning of"duly taken into account. The qualifier " duly" does b not have such a NEGATIVE connotation as you describe, You went too far unfortunately.I am in this business for years and what I briefly describe in my earlier message reflecting the facts. I do not want to open a new round of exchange of e.-mail as I do not see any benefit to do so. We disagree because we can not agree with each other , with all "DUE RESPECT" By the way ,if I translate " DUE RESPECT " as you described I am sure that would not convey the exact meaning of "DUE RESPECT" if one interprets as having a negative sense/connotation as you have concluded With my best regards 2016-01-25 10:57 GMT+01:00 Malcolm Hutty <malcolm@linx.net>:
On 24/01/2016 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.
I also agree that this would be a substantial change.
To support that, I would ask you to consider the follow, not unlikely, scenario.
The GAC has advised the Board to do something, but what it has advised is not entirely clearly, and there is certainly ambiguity as to how it might be implemented. The Board has then done something. A materially affected party, unhappy with the Board's action and preferring an alternative that would take a more extreme view of the GAC advice, challenges the action in the IRP. The Board takes the view that it has taken the GAC's advice into account and that what it has done is reasonably consistent with the GAC advice; the complainant argues that the action was not consistent with it.
If the IRP finds that factually the complainant is correct to allege that the Board's action was not consisistent with the GAC advice, what is the consequence of that? It seems to vary according to which standard we choose:
- If the current standard applies, that the Board "duly take into account" GAC advice, the IRP may still find that the Board did do that: since they noted the GAC's advice, considered it, and believed (albeit incorrectly) that what they were doing constituted a reasonably implementation of it, it is hard to say they did not meet this standard. The IRP will however order the Board that to bring itself back into compliance with the bylaws it must notify the GAC that it has acted inconsistently, and try to find a mutually acceptable solution. The action, however, may stand: a solution need not necessarily involve cancelling the action, but might be found through supplementing the action with another.
- If Holly's standard applies, that the Board "must not act inconsistently" with GAC advice, then the mere finding that the Board has acted inconsistently invalidates that decision. The action must be quashed, if it is possible to do so; failure to do so would consistute perpetuating the bylaws breach.
This is a material change, that may significantly affect the outcome.
Personally, I do not believe this change is needed or desirable. For that reason, I respectfully disagree with accepting Holly's advice on this particular case.
Kind Regards,
Malcolm.
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