Any reason why the Core Value is not in force "unless" (and until) the FoI is done, when the CCWG Report only says "until"?  The FoI's presence in the By-laws is not conditional.  That is, it's not as if it's only in force *if* we work it out -- it *has* to be worked out!  :-)

If you make it conditional, the process could be forced to choose between a weak compromise or no FoI at all, which is really not a choice or compromise.  We don't want to set it up that that kind of brinksmanship is where the process ends up running aground.  The process should be one where we know we have to address the nature and role of the HR commitment and discuss it in terms of the *substance* of the issue, and reach compromises only on that basis -- and not run up against choices between unappealing compromises or nothing.

I asked this before, and it may be that there is a rationale, or perhaps this language somehow does not put us in this position.

I'd think that simply deleting the words "unless and" would be the best thing.

Seth

On Sun, May 1, 2016 at 4:42 PM, Mathieu Weill <mathieu.weill@afnic.fr> wrote:

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>
Date: 1 mai 2016 19:10:53 UTC+2
Destinataire: "'Mathieu Weill'" <mathieu.weill@afnic.fr>, "'Thomas Rickert'" <thomas@rickert.net>, León Felipe Sánchez Ambía <leonfelipe@sanchez.mx>, "bylaws-coord@icann.org" <bylaws-coord@icann.org>
Cc: ACCT-Staff <acct-staff@icann.org>, "Rosemary E. Fei" <rfei@adlercolvin.com>, "ICANN@adlercolvin.com" <ICANN@adlercolvin.com>, Sidley ICANN CCWG <sidleyicannccwg@sidley.com>, "Samantha.Eisner@icann.org" <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 the case of the Board, using the same process and criteria used by the Board to 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
holly.gregory@sidley.com
www.sidley.com

 SIDLEY AUSTIN LLP

 

 

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