Hi all, Response to Greg inline (TL;DR - disagree with Seun and agree with Seth and Greg for removal of 'unless or'): On 05/02/2016 04:10 AM, Greg Shatan wrote:

I support the changes proposed by counsel, and I believe they make this section consistent with the intent of the CCWG Proposal.

You're entitled to your opinion, Seun, but stating it as if it were a fact doesn't make it a fact -- it's still your opinion that "what we have done is NOT in-line with the interpretation of what was written in the report." I disagree with your opinion.

In my opinion, what we had before was "NOT in-line with the interpretation of what was written in the report," and I've provided the basis for that in prior emails. What we have now -- suggested by counsel -- brings the Draft Bylaws in line with the CCWG Proposal.

I don't think what we had in the report was a "mistake" (and I don't think anyone actually said that even though you seem to think otherwise); rather what we had was an ambiguous phrase in the so-called "draft bylaw" in the Proposal (which was never meant to be used verbatim in the actual Bylaws), which was then clarified by repeated statements that the review of the FoI in WS2 would proceed the same way as the review and approval of the Proposal in WS1. The only "mistake" was what was in the Draft Bylaw circulated by comment, and that has now been corrected by the language proposed by counsel.

+1

Speaking to the other comments in this thread:

The review by the Chartering Organizations is covered by the clause "using the same process and criteria as for Work Stream 1 Recommendations." We don't need to spell that process out here.

"Unless and until" is a conjunctive clause commonly used in legal drafting. Like many of these "legal twins," it is a set phrase that often tends to be used without a second thought as to the slightly different meanings of the two words. Its use can tend to be reflexive by those who draft a lot of bylaws, contracts or similar legal documents. There's something comfortable about seeing these types of phrases. That said, in this instance, we would probably be fine with "until."

+1 Best, Niels

Greg

On Sun, May 1, 2016 at 6:38 PM, Seth Johnson <seth.p.johnson@gmail.com <mailto:seth.p.johnson@gmail.com>> wrote:

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 <mailto: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 <mailto:holly.gregory@sidley.com>> *Date:* 1 mai 2016 19:10:53 UTC+2 *Destinataire:* "'Mathieu Weill'" <mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>>, "'Thomas Rickert'" <thomas@rickert.net <mailto:thomas@rickert.net>>, León Felipe Sánchez Ambía <leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>>, "bylaws-coord@icann.org <mailto:bylaws-coord@icann.org>" <bylaws-coord@icann.org <mailto:bylaws-coord@icann.org>> *Cc:* ACCT-Staff <acct-staff@icann.org <mailto:acct-staff@icann.org>>, "Rosemary E. Fei" <rfei@adlercolvin.com <mailto:rfei@adlercolvin.com>>, "ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com>" <ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com>>, Sidley ICANN CCWG <sidleyicannccwg@sidley.com <mailto:sidleyicannccwg@sidley.com>>, "Samantha.Eisner@icann.org <mailto:Samantha.Eisner@icann.org>" <Samantha.Eisner@icann.org <mailto: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 thecase of the Board, using the same process and criteria used by the Boardto 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 <tel:%2B1%20212%20839%205853> holly.gregory@sidley.com <mailto:holly.gregory@sidley.com> www.sidley.com <http://www.sidley.com/>____

http://www.sidley.com/files/upload/signatures/SA-autosig.png <http://www.sidley.com/> *SIDLEY AUSTIN LLP*____

__ __

**************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately.

****************************************************************************************************

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community

-- Niels ten Oever Head of Digital Article 19 www.article19.org PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9