Lawyer's High Level Review re Mission (Recommendation 5) Slides
Dear CCWG ACCT Co-Chairs, Members, Participants and ICANN Staff, We are writing to provide our very high level reactions to the slides on Mission (Recommendation 5) that were forwarded to us today by ICANN staff. (For ease of reference we have attached a copy of the slides that we have reviewed today.) We have 2 primary concerns or caveats that we raise now primarily to help make sure that expectations about what can be resolved in the drafting stage are realistic. 1) A common challenge in drafting Bylaws is determining what matters to try and nail down with exactitude and when to rely on general principles for interpretation in light of specific context by a reviewing body and the opportunity to revise the Bylaws further in the future if additional clarification is needed. We understand that the CCWG expects that the Bylaws drafters will be able to devise language that precisely, comprehensively, and unambiguously defines ICANN’s mission in a manner that reconciles the CCWG’s disparate views on content regulation versus contract enforceability, involuntary versus voluntary PICs, consumer trust and other matters of debate, leaving little if any room for misunderstanding. We think this expectation is not realistic. Based on our observation of the CCWG’s discussions, even if the CCWG is eventually able to agree on the line between what is in and outside ICANN’s mission conceptually, we do not believe drafting to that level of precision is possible. Anything we draft will, inevitably, leave room for conflicting interpretations due to the nature of language; the more we provide detailed rules and examples to reduce the areas requiring interpretation, the longer, more cumbersome, and less user-friendly the text will become. Ironically, efforts to address issues in greater detail may even create more opportunities for misinterpretation and loopholes. For clients facing similar dilemmas, a common approach is to draft general principles into governing documents and provide a mechanism for interpreting them in specific situations. We recommend that the CCWG agree upon and articulate mission principles at a general level appropriate for inclusion in the Bylaws, understanding that refinement and interpretation will be needed thereafter. If a party is materially affected by an ICANN determination that a PIC is outside (or within) the scope of ICANN’s mission, that party may challenge, via an IRP, the decision on the basis that ICANN has acted inconsistently with its Bylaws. The IRP panel’s decision will inform how the Bylaws are interpreted from that point onward. If the community disagrees with the IRP panel’s decision, it can further amend the mission through the Fundamental Bylaws amendment procedure; the community could also develop a mechanism other than the IRP specifically to review mission compliance of proposed PICs, if desired. 2) We note that, while the CCWG has accepted the concept of grandfathering some PICs, it has not yet clearly defined what it means by “grandfathering” PICs. We will need answers to the following questions in order to draft appropriate Bylaws: a) What is the effective cut-off date for the grandfathering? This could be a specified date in the future, or could be an event, such as the date of adoption of the relevant Fundamental Bylaw. b) Should RAs that are in the process of being put in place but have not yet been finalized and signed as of the effective date, be included or excluded? If that should depend on how far along in the process they are, what should be the standard for deciding that point? c) Should renewals of existing RAs, unchanged, that contain PICs covered by the grandfathering clause, be included? If so, should there be a limit on the number of renewals that will be covered? Should grandfathering cover PICs that are not modified, even though other provisions of the agreement are changed? d) What if an existing RA/RAA includes a grandfathered PIC, and the agreement is modified, by mutual agreement or otherwise -- is it still grandfathered? e) Should all grandfathering have a sunset date, i.e., a point far enough in the future on which all grandfathering protection will expire? We look forward to addressing these high-level issues with you and the CCWG in whatever manner is deemed most appropriate. We also have a question regarding the following language on Slide 2 of the deck: “ GAC/ALAC – seeks legal opinion on (i) constraints on Board’s ability to act on GAC advice and (ii) continuing ability to impose and enforce PICs and other “negotiated” registry provisions” We believe that we have already provided our response to (i). We do not recall that (ii) has been certified to us. We ask that the Co-Chairs and Staff please confirm. One other minor point: We note that on Slide 9 of the deck, the word “mission” has been replaced with “scope” in proposed Bylaw language. We think that “purpose” is a better word to use in this context. Once the content of the Mission Slides is incorporated into the relevant Recommendation and Annex we will review again for more detailed suggestions. Holly and Rosemary HOLLY J. GREGORY Partner and Co-Chair Global Corporate Governance & Executive Compensation Practice Sidley Austin LLP +1 212 839 5853 holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> From: Mathieu Weill [mailto:mathieu.weill@afnic.fr] Sent: Monday, January 18, 2016 2:02 PM To: Gregory, Holly; acct-staff@icann.org Cc: thomas@rickert.net; León Felipe Sánchez Ambía; Sidley ICANN CCWG; ICANN@adlercolvin.com; Grapsas, Rebecca Subject: RE: AGENDA - Call #78 Dear Holly, Despite the two previous discussions, we are I’m afraid not yet at the point of having a draft on this one. Your high level comments on the 3rd report might be useful however. Maybe that could help us make progress on this complex issue. De : Gregory, Holly [mailto:holly.gregory@sidley.com] Envoyé : lundi 18 janvier 2016 17:12 À : acct-staff@icann.org<mailto:acct-staff@icann.org> Cc : mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>; thomas@rickert.net<mailto:thomas@rickert.net>; León Felipe Sánchez Ambía; Sidley ICANN CCWG; ICANN@adlercolvin.com<mailto:ICANN@adlercolvin.com>; Grapsas, Rebecca Objet : AGENDA - Call #78 For the third reading of Recommendation 5, Annex 5,- Mission Statement - we are having difficulty finding the draft we are to review. Any assistance in providing us with the correct draft for review is greatly appreciated. Holly HOLLY J. GREGORY Partner and Co-Chair Global Corporate Governance & Executive Compensation Practice Sidley Austin LLP +1 212 839 5853 holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> ________________________________ From: accountability-cross-community-bounces@icann.orgOn<mailto:accountability-cross-community-bounces@icann.orgOn> Behalf OfAlice Jansen Sent: Friday, January 15, 2016 9:36:37 AM (UTC-08:00) Pacific Time (US & Canada) To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] AGENDA - Call #78 Dear all, In anticipation of your call #78 – Tuesday, 19 January 2016 - 12:00-15:00 UTC - (time converter<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.timeanddate.com_worl...>), please find below a proposed agenda: 1. Welcome, roll call, SoI (2 min) 2. Rec 7 – Scope of IRP- Second reading (20 min) - Note: Becky will be sending the first reading conclusions document 3. Rec 6 – Human Rights – Second reading (30 min) - see http://mm.icann.org/pipermail/accountability-cross-community/2016-January/009642.html<https://urldefense.proofpoint.com/v2/url?u=http-3A__mm.icann.org_pipermail_accountability-2Dcross-2Dcommunity_2016-2DJanuary_009642.html&d=CwMF-g&c=Od00qP2XTg0tXf_H69-T2w&r=AKn_gzAS4ANpCEqx2GjPwjUkqYPHaN7m0NQNyfQXAgk&m=SYkaiEp9fgl1luJDvf7UGYFG5_mtc4Ei7vj8Ti5VjzM&s=amzby7qrNCDWUcOc6jyhNP8OPIEGlVjN9nuTJZuv6kM&e=> 4. Rec 4 – Board removal liability mitigation – Third reading (10 min) - see http://mm.icann.org/pipermail/accountability-cross-community/2016-January/009645.html<https://urldefense.proofpoint.com/v2/url?u=http-3A__mm.icann.org_pipermail_accountability-2Dcross-2Dcommunity_2016-2DJanuary_009645.html&d=CwMF-g&c=Od00qP2XTg0tXf_H69-T2w&r=AKn_gzAS4ANpCEqx2GjPwjUkqYPHaN7m0NQNyfQXAgk&m=SYkaiEp9fgl1luJDvf7UGYFG5_mtc4Ei7vj8Ti5VjzM&s=pVyTYwu_EDz_AUScQBhxSHj9s_nM1LQi3ffyZYpRKeM&e=> 5. Rec 9 – AOC reviews (30 min) - First reading – see http://mm.icann.org/pipermail/accountability-cross-community/2016-January/009644.html<https://urldefense.proofpoint.com/v2/url?u=http-3A__mm.icann.org_pipermail_accountability-2Dcross-2Dcommunity_2016-2DJanuary_009644.html&d=CwMF-g&c=Od00qP2XTg0tXf_H69-T2w&r=AKn_gzAS4ANpCEqx2GjPwjUkqYPHaN7m0NQNyfQXAgk&m=SYkaiEp9fgl1luJDvf7UGYFG5_mtc4Ei7vj8Ti5VjzM&s=ecUcX5lTFQVz_syvKvUBZDISrPK3kU0x2Fc6qDEZ6E8&e=> Break (10 min) 6. Rec 5 – Mission Statement (45 min) - Third reading - Note: Becky will be sending an update 7. Rec 11 – GAC Advice – First reading (45 min) - see http://mm.icann.org/pipermail/accountability-cross-community/2016-January/009646.html<https://urldefense.proofpoint.com/v2/url?u=http-3A__mm.icann.org_pipermail_accountability-2Dcross-2Dcommunity_2016-2DJanuary_009646.html&d=CwMF-g&c=Od00qP2XTg0tXf_H69-T2w&r=AKn_gzAS4ANpCEqx2GjPwjUkqYPHaN7m0NQNyfQXAgk&m=SYkaiEp9fgl1luJDvf7UGYFG5_mtc4Ei7vj8Ti5VjzM&s=gXIsgS9NSc0xdAMiRADIRG3p1f-YOHy2yX_o3tckWrE&e=> 8. A.O.B (3 min) As a reminder, all documents can be found on the wiki at: https://community.icann.org/display/acctcrosscomm/Final+Report<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_display_acctcrosscomm_Final-2BReport&d=CwMF-g&c=Od00qP2XTg0tXf_H69-T2w&r=AKn_gzAS4ANpCEqx2GjPwjUkqYPHaN7m0NQNyfQXAgk&m=SYkaiEp9fgl1luJDvf7UGYFG5_mtc4Ei7vj8Ti5VjzM&s=jhKDO7lNcH6MjsD6ZzKosb08bZIQwYrXXnOJczXamRc&e=> Link to Adobe Connect: https://icann.adobeconnect.com/accountability<https://urldefense.proofpoint.com/v2/url?u=https-3A__icann.adobeconnect.com_accountability&d=CwMF-g&c=Od00qP2XTg0tXf_H69-T2w&r=AKn_gzAS4ANpCEqx2GjPwjUkqYPHaN7m0NQNyfQXAgk&m=SYkaiEp9fgl1luJDvf7UGYFG5_mtc4Ei7vj8Ti5VjzM&s=9eGg8Xk_ec4pWa0qwlq5fWa5wgH0ORzTxrl1MMNmyg0&e=>/ Thanks Best regards Alice **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. 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Dear CCWG ACCT Co-Chairs, Members, Participants and ICANN Staff, We are writing to raise with you a high-level concern regarding the proposal to reference the 2004 Address Supporting Organization MOU (the “MOU”) in ICANN’s Mission Statement (Bylaws Article I, Section 1), which was discussed on CCWG-ACCT Call #77 (January 14). In defining ICANN’s role in coordinating allocation and assignment at the top-most level of IP and AS numbers, Annex 05 from the Third Proposal provided as follows: “ICANN’s Mission is described in the ASO MoU between ICANN and RIRs.” We recommend against trying to further define ICANN’s Mission through cross-reference to the MOU in the Bylaws and suggest that any specific language that you deem of critical import to defining ICANN’s Mission be actually incorporated. (We could not find a clear statement of the ICANN Mission in the MOU.) As a general matter, referencing all or part of an external agreement in bylaws presents a number of problems. For example: · The bylaws may require a different process, parties, and threshold for amendment than the referenced agreement, and it is unclear legally which rules apply. This problem is certainly present here. Although the Mission will be a fundamental bylaw, the parties to the MOU could amend it on their own, circumventing the fundamental bylaw amendment process entirely. Alternatively, perhaps the MOU’s amendment provisions would be superceded by the fundamental bylaw amendment process. At a minimum, if the reference remains despite our advice, this issue should be addressed explicitly. · Referencing an outside agreement in bylaws may have the legal effect of incorporating it into the bylaws, putting all its terms on an equal footing with the bylaws, which can create problems if its provisions conflict with the bylaws in any way. This issue has a greater chance of arising where an entire agreement is incorporated by reference, and is clearly a problem here. For example, ICANN’s Bylaws are ultimately governed by California law, but the MOU provides that it will be governed by International Chamber of Commerce rules in Bermuda. Again, if the reference remains despite our advice, the CCWG should decide which document governs in case of conflict (either generally or on a topic-by-topic basis). · Although we generally recommend against it, clients have insisted on incorporating an entire existing agreement in their governing documents, essentially freezing the agreement as incorporated. It was suggested on the CCWG call that the Bylaws could reference the version of the MOU as of a specific date, excluding from the Bylaws future amendments to the MOU unless the community amended the Bylaws to update the reference in the Mission. While this strategy partially solves one problem, it leads to others. Assuming that the MOU incorporated in the Bylaws continues to evolve over time outside of the Bylaws, there will be two versions of the MOU -- the one in the Bylaws, and the one that documents the current understandings between the ASO and ICANN. At a minimum, this would be confusing; in a worst-case scenario, it could undermine the enforceability of the post-reference MOU. · Any outside agreement to be referenced in bylaws must be carefully reviewed to assess and address the sorts of consequences noted above. We have briefly reviewed a version of the MOU, and note that the MOU itself incorporates other documents by reference, including the earlier 2003 version of the ICANN Bylaws, creating a circularity in terms of providing legal advice on this provision in the future. While we originally thought it might be possible to work around these problems by inserting text from the MOU into the Bylaws describing this aspect of ICANN’s Mission, after our brief review of the MOU, it is not clear to us where or how it describes ICANN’s mission in any narrative text. As we read it the MOU sets out processes and mechanisms for developing policies but does not itself describe substantive limits on ICANN or purport to define ICANN’s Mission. Bylaws may of course include a process for developing a scope of corporate activities within the bounds of a larger mission, and the mission can be updated as appropriate to reflect developments that come out of this process, but the process itself cannot logically become part of the mission. We hope further CCWG discussion in light of our concern, regarding the goal that the ASO and the community seek by referencing the MOU in the Mission Statement, may provide a way forward without referencing the MOU itself in the Bylaws. Holly and Rosemary HOLLY J. GREGORY Partner and Co-Chair Global Corporate Governance & Executive Compensation Practice Sidley Austin LLP +1 212 839 5853 holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> **************************************************************************************************** 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. ****************************************************************************************************
Dear holly, Thank you very much for your clear legal view: There is a proverb in Persian language which could roughly translated as follows: “Whatever, the junior observes in a Mirror, the senior ( age) could observe in the Stone” I submitted exactly in one of message to the mailing list several weeks ago the same argument that that you described in this message that Article 1 of Fundamental Bylaws including Mission is the supreme / highest level of text in the ICANN text and thus issues such as MoU which as it self-described itself is merely Memorandum and nothing more than that should not appear in the highest level of the ICANN TEXT. I went even beyond your suggestion in arguing that cross reference in the legal document would almost provide the same level of the main text to the crossed referenced text. I therefore suggest , should we all agree by consensus to cross reference ANY MoU, paraphrase that by a term;” See also MoU XXX as an informative reference thus would not give a formative status to any MoU due to the fact that MoU does not have any mandatory status as it is a “ Memorandum of Understanding only. Something which has a memorandum status is just for memorandum “aide memoire “, In French, and nothing more than that. I have noticed that many such arguments that I have made were simply rejected for other grounds than professional But I am used to it and do not take it serious. Another Persian Proverb says “ I have told you whatever should I had told you , it is up to you to take it or reject it “ I do not wish to argue with anybody as I accept many thing that are not disturbing but I can not agree that mandatory legal terms / provisions contains or cross reference to non mandatory provisions due to the fact that the non-mandatory provision such as MoU may change with time thus the mandatory provisions would be subordinated with something which could easily change such as MoU. I SPENT 40 YEARS IN dealing with such DOMAIN Kavouss 2016-01-18 21:27 GMT+01:00 Gregory, Holly <holly.gregory@sidley.com>:
Dear CCWG ACCT Co-Chairs, Members, Participants and ICANN Staff,
We are writing to raise with you a high-level concern regarding the proposal to reference the 2004 Address Supporting Organization MOU (the “MOU”) in ICANN’s Mission Statement (Bylaws Article I, Section 1), which was discussed on CCWG-ACCT Call #77 (January 14).
In defining ICANN’s role in coordinating allocation and assignment at the top-most level of IP and AS numbers, Annex 05 from the Third Proposal provided as follows: “ICANN’s Mission is described in the ASO MoU between ICANN and RIRs.”
*We **recommend against trying to further define ICANN’s Mission through cross-reference to the MOU in the Bylaws and suggest that any specific language that you deem of critical import to defining ICANN’s Mission be actually incorporated. (We could not find a clear statement of the ICANN Mission in the MOU.)*
As a general matter, referencing all or part of an external agreement in bylaws presents a number of problems. For example:
· The bylaws may require a different process, parties, and threshold for amendment than the referenced agreement, and it is unclear legally which rules apply. This problem is certainly present here. Although the Mission will be a fundamental bylaw, the parties to the MOU could amend it on their own, circumventing the fundamental bylaw amendment process entirely. Alternatively, perhaps the MOU’s amendment provisions would be superceded by the fundamental bylaw amendment process. At a minimum, if the reference remains despite our advice, this issue should be addressed explicitly.
· Referencing an outside agreement in bylaws may have the legal effect of incorporating it into the bylaws, putting all its terms on an equal footing with the bylaws, which can create problems if its provisions conflict with the bylaws in any way. This issue has a greater chance of arising where an entire agreement is incorporated by reference, and is clearly a problem here. For example, ICANN’s Bylaws are ultimately governed by California law, but the MOU provides that it will be governed by International Chamber of Commerce rules in Bermuda. Again, if the reference remains despite our advice, the CCWG should decide which document governs in case of conflict (either generally or on a topic-by-topic basis).
· Although we generally recommend against it, clients have insisted on incorporating an entire existing agreement in their governing documents, essentially freezing the agreement as incorporated. It was suggested on the CCWG call that the Bylaws could reference the version of the MOU as of a specific date, excluding from the Bylaws future amendments to the MOU unless the community amended the Bylaws to update the reference in the Mission. While this strategy partially solves one problem, it leads to others. Assuming that the MOU incorporated in the Bylaws continues to evolve over time outside of the Bylaws, there will be two versions of the MOU -- the one in the Bylaws, and the one that documents the current understandings between the ASO and ICANN. At a minimum, this would be confusing; in a worst-case scenario, it could undermine the enforceability of the post-reference MOU.
· Any outside agreement to be referenced in bylaws must be carefully reviewed to assess and address the sorts of consequences noted above. We have briefly reviewed a version of the MOU, and note that the MOU itself incorporates other documents by reference, including the earlier 2003 version of the ICANN Bylaws, creating a circularity in terms of providing legal advice on this provision in the future.
While we originally thought it might be possible to work around these problems by inserting text from the MOU into the Bylaws describing this aspect of ICANN’s Mission, after our brief review of the MOU, it is not clear to us where or how it describes ICANN’s mission in any narrative text. As we read it the MOU sets out processes and mechanisms for developing policies but does not itself describe substantive limits on ICANN or purport to define ICANN’s Mission.
Bylaws may of course include a process for developing a scope of corporate activities within the bounds of a larger mission, and the mission can be updated as appropriate to reflect developments that come out of this process, but the process itself cannot logically become part of the mission.
We hope further CCWG discussion in light of our concern, regarding the goal that the ASO and the community seek by referencing the MOU in the Mission Statement, may provide a way forward without referencing the MOU itself in the Bylaws.
Holly and Rosemary
*HOLLY J. GREGORY* Partner and Co-Chair Global Corporate Governance & Executive Compensation Practice
*Sidley Austin LLP* +1 212 839 5853 holly.gregory@sidley.com
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Hi, I have a question. The current bylaws contain provisions for GNSO Operating Procedures
X.3.4. The GNSO Council is responsible for managing the policy development process of the GNSO. It shall adopt such procedures (the "GNSO Operating Procedures") as it sees fit to carry out that responsibility, provided that such procedures are approved by a majority vote of each House. The GNSO Operating Procedures shall be effective upon the expiration of a twenty-one (21) day public comment period, and shall be subject to Board oversight and review
Understanding that this is somewhat a different case than the ASO MOU, is it possible to do something that points to the current MOU and includes the condition under which the referenced MOU changes? avri On 18-Jan-16 15:27, Gregory, Holly wrote:
Dear CCWG ACCT Co-Chairs, Members, Participants and ICANN Staff,
We are writing to raise with you a high-level concern regarding the proposal to reference the 2004 Address Supporting Organization MOU (the “MOU”) in ICANN’s Mission Statement (Bylaws Article I, Section 1), which was discussed on CCWG-ACCT Call #77 (January 14).
In defining ICANN’s role in coordinating allocation and assignment at the top-most level of IP and AS numbers, Annex 05 from the Third Proposal provided as follows: “ICANN’s Mission is described in the ASO MoU between ICANN and RIRs.”
/We //recommend against trying to further define ICANN’s Mission through cross-reference to the MOU in the Bylaws and suggest that any specific language that you deem of critical import to defining ICANN’s Mission be actually incorporated. (We could not find a clear statement of the ICANN Mission in the MOU.)/
As a general matter, referencing all or part of an external agreement in bylaws presents a number of problems. For example:
· The bylaws may require a different process, parties, and threshold for amendment than the referenced agreement, and it is unclear legally which rules apply. This problem is certainly present here. Although the Mission will be a fundamental bylaw, the parties to the MOU could amend it on their own, circumventing the fundamental bylaw amendment process entirely. Alternatively, perhaps the MOU’s amendment provisions would be superceded by the fundamental bylaw amendment process. At a minimum, if the reference remains despite our advice, this issue should be addressed explicitly.
· Referencing an outside agreement in bylaws may have the legal effect of incorporating it into the bylaws, putting all its terms on an equal footing with the bylaws, which can create problems if its provisions conflict with the bylaws in any way. This issue has a greater chance of arising where an entire agreement is incorporated by reference, and is clearly a problem here. For example, ICANN’s Bylaws are ultimately governed by California law, but the MOU provides that it will be governed by International Chamber of Commerce rules in Bermuda. Again, if the reference remains despite our advice, the CCWG should decide which document governs in case of conflict (either generally or on a topic-by-topic basis).
· Although we generally recommend against it, clients have insisted on incorporating an entire existing agreement in their governing documents, essentially freezing the agreement as incorporated. It was suggested on the CCWG call that the Bylaws could reference the version of the MOU as of a specific date, excluding from the Bylaws future amendments to the MOU unless the community amended the Bylaws to update the reference in the Mission. While this strategy partially solves one problem, it leads to others. Assuming that the MOU incorporated in the Bylaws continues to evolve over time outside of the Bylaws, there will be two versions of the MOU -- the one in the Bylaws, and the one that documents the current understandings between the ASO and ICANN. At a minimum, this would be confusing; in a worst-case scenario, it could undermine the enforceability of the post-reference MOU.
· Any outside agreement to be referenced in bylaws must be carefully reviewed to assess and address the sorts of consequences noted above. We have briefly reviewed a version of the MOU, and note that the MOU itself incorporates other documents by reference, including the earlier 2003 version of the ICANN Bylaws, creating a circularity in terms of providing legal advice on this provision in the future.
While we originally thought it might be possible to work around these problems by inserting text from the MOU into the Bylaws describing this aspect of ICANN’s Mission, after our brief review of the MOU, it is not clear to us where or how it describes ICANN’s mission in any narrative text. As we read it the MOU sets out processes and mechanisms for developing policies but does not itself describe substantive limits on ICANN or purport to define ICANN’s Mission.
Bylaws may of course include a process for developing a scope of corporate activities within the bounds of a larger mission, and the mission can be updated as appropriate to reflect developments that come out of this process, but the process itself cannot logically become part of the mission.
We hope further CCWG discussion in light of our concern, regarding the goal that the ASO and the community seek by referencing the MOU in the Mission Statement, may provide a way forward without referencing the MOU itself in the Bylaws.
Holly and Rosemary
*HOLLY J. GREGORY* Partner and Co-Chair Global Corporate Governance & Executive Compensation Practice
*Sidley Austin LLP** *+1 212 839 5853 holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>
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****************************************************************************************************
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Dear All, Thank you very much for your kind comments In view of the reactions and feedback, I have modified my comments as follows Dear holly, Thank you very much for your clear legal view: I submitted exactly in one of message to the mailing list several weeks ago the same argument that that you described in this message that Article 1 of Fundamental Bylaws including Mission is the supreme / highest level of text in the ICANN text and thus issues such as MoU which as it self-described itself is merely Memorandum and nothing more than that should not appear in the highest level of the ICANN TEXT. I went even beyond your suggestion in arguing that cross reference in the legal document would almost provide the same level of the main text to the crossed referenced text. I therefore suggest , should we all agree by consensus to cross reference ANY MoU, paraphrase that by a term;” See also MoU XXX as an informative reference thus would not give a formative status to any MoU due to the fact that MoU does not have any mandatory status as it is a “ Memorandum of Understanding only. Something which has a memorandum status is just for memorandum “aide memoire “, In French, and nothing more than that. I do not wish to argue with anybody as I accept many thing that are not disturbing but I can not agree that mandatory legal terms / provisions contains or cross reference to non mandatory provisions due to the fact that the non-mandatory provision such as MoU may change with time thus the mandatory provisions would be subordinated with something which could easily change such as MoU. Kavouss Please thus read the previous message Void Regards Kavouss 2016-01-18 23:47 GMT+01:00 Avri Doria <avri@acm.org>:
Hi,
I have a question.
The current bylaws contain provisions for GNSO Operating Procedures
X.3.4. The GNSO Council is responsible for managing the policy development process of the GNSO. It shall adopt such procedures (the "GNSO Operating Procedures") as it sees fit to carry out that responsibility, provided that such procedures are approved by a majority vote of each House. The GNSO Operating Procedures shall be effective upon the expiration of a twenty-one (21) day public comment period, and shall be subject to Board oversight and review
Understanding that this is somewhat a different case than the ASO MOU, is it possible to do something that points to the current MOU and includes the condition under which the referenced MOU changes?
avri
On 18-Jan-16 15:27, Gregory, Holly wrote:
Dear CCWG ACCT Co-Chairs, Members, Participants and ICANN Staff,
We are writing to raise with you a high-level concern regarding the proposal to reference the 2004 Address Supporting Organization MOU (the “MOU”) in ICANN’s Mission Statement (Bylaws Article I, Section 1), which was discussed on CCWG-ACCT Call #77 (January 14).
In defining ICANN’s role in coordinating allocation and assignment at the top-most level of IP and AS numbers, Annex 05 from the Third Proposal provided as follows: “ICANN’s Mission is described in the ASO MoU between ICANN and RIRs.”
/We //recommend against trying to further define ICANN’s Mission through cross-reference to the MOU in the Bylaws and suggest that any specific language that you deem of critical import to defining ICANN’s Mission be actually incorporated. (We could not find a clear statement of the ICANN Mission in the MOU.)/
As a general matter, referencing all or part of an external agreement in bylaws presents a number of problems. For example:
· The bylaws may require a different process, parties, and threshold for amendment than the referenced agreement, and it is unclear legally which rules apply. This problem is certainly present here. Although the Mission will be a fundamental bylaw, the parties to the MOU could amend it on their own, circumventing the fundamental bylaw amendment process entirely. Alternatively, perhaps the MOU’s amendment provisions would be superceded by the fundamental bylaw amendment process. At a minimum, if the reference remains despite our advice, this issue should be addressed explicitly.
· Referencing an outside agreement in bylaws may have the legal effect of incorporating it into the bylaws, putting all its terms on an equal footing with the bylaws, which can create problems if its provisions conflict with the bylaws in any way. This issue has a greater chance of arising where an entire agreement is incorporated by reference, and is clearly a problem here. For example, ICANN’s Bylaws are ultimately governed by California law, but the MOU provides that it will be governed by International Chamber of Commerce rules in Bermuda. Again, if the reference remains despite our advice, the CCWG should decide which document governs in case of conflict (either generally or on a topic-by-topic basis).
· Although we generally recommend against it, clients have insisted on incorporating an entire existing agreement in their governing documents, essentially freezing the agreement as incorporated. It was suggested on the CCWG call that the Bylaws could reference the version of the MOU as of a specific date, excluding from the Bylaws future amendments to the MOU unless the community amended the Bylaws to update the reference in the Mission. While this strategy partially solves one problem, it leads to others. Assuming that the MOU incorporated in the Bylaws continues to evolve over time outside of the Bylaws, there will be two versions of the MOU -- the one in the Bylaws, and the one that documents the current understandings between the ASO and ICANN. At a minimum, this would be confusing; in a worst-case scenario, it could undermine the enforceability of the post-reference MOU.
· Any outside agreement to be referenced in bylaws must be carefully reviewed to assess and address the sorts of consequences noted above. We have briefly reviewed a version of the MOU, and note that the MOU itself incorporates other documents by reference, including the earlier 2003 version of the ICANN Bylaws, creating a circularity in terms of providing legal advice on this provision in the future.
While we originally thought it might be possible to work around these problems by inserting text from the MOU into the Bylaws describing this aspect of ICANN’s Mission, after our brief review of the MOU, it is not clear to us where or how it describes ICANN’s mission in any narrative text. As we read it the MOU sets out processes and mechanisms for developing policies but does not itself describe substantive limits on ICANN or purport to define ICANN’s Mission.
Bylaws may of course include a process for developing a scope of corporate activities within the bounds of a larger mission, and the mission can be updated as appropriate to reflect developments that come out of this process, but the process itself cannot logically become part of the mission.
We hope further CCWG discussion in light of our concern, regarding the goal that the ASO and the community seek by referencing the MOU in the Mission Statement, may provide a way forward without referencing the MOU itself in the Bylaws.
Holly and Rosemary
*HOLLY J. GREGORY* Partner and Co-Chair Global Corporate Governance & Executive Compensation Practice
*Sidley Austin LLP** *+1 212 839 5853 holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>
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Avri, The difference I see is that the GNSO Operating Procedures (along with the GNSO) are creations of the ICANN Bylaws. The language you quote is the language creating the GNSO Operating Procedures. To my mind, this is significantly different (a "difference in kind") from the ASO MoU, which is an outside agreement. Aside from that, there is the issue that our counsel could not glean a clear statement of ICANN's Mission (regarding IP addresses) from the ASO MoU. The statement that counsel is grappling with is unfortunately one of those that was thrown into the Proposal at a very high conceptual level and never really considered in any practical detail. Greg On Mon, Jan 18, 2016 at 10:22 PM, Kavouss Arasteh <kavouss.arasteh@gmail.com
wrote:
Dear All, Thank you very much for your kind comments In view of the reactions and feedback, I have modified my comments as follows
Dear holly,
Thank you very much for your clear legal view:
I submitted exactly in one of message to the mailing list several weeks ago the same argument that that you described in this message that
Article 1 of Fundamental Bylaws including Mission is the supreme / highest level of text in the ICANN text and thus issues such as MoU which as it self-described itself is merely Memorandum and nothing more than that should not appear in the highest level of the ICANN TEXT.
I went even beyond your suggestion in arguing that cross reference in the legal document would almost provide the same level of the main text to the crossed referenced text.
I therefore suggest , should we all agree by consensus to cross reference ANY MoU, paraphrase that by a term;” See also MoU XXX as an informative reference thus would not give a formative status to any MoU due to the fact that MoU does not have any mandatory status as it is a “ Memorandum of Understanding only. Something which has a memorandum status is just for memorandum “aide memoire “, In French, and nothing more than that.
I do not wish to argue with anybody as I accept many thing that are not disturbing but I can not agree that mandatory legal terms / provisions contains or cross reference to non mandatory provisions due to the fact that the non-mandatory provision such as MoU may change with time thus the mandatory provisions would be subordinated with something which could easily change such as MoU.
Kavouss
Please thus read the previous message Void
Regards
Kavouss
2016-01-18 23:47 GMT+01:00 Avri Doria <avri@acm.org>:
Hi,
I have a question.
The current bylaws contain provisions for GNSO Operating Procedures
X.3.4. The GNSO Council is responsible for managing the policy development process of the GNSO. It shall adopt such procedures (the "GNSO Operating Procedures") as it sees fit to carry out that responsibility, provided that such procedures are approved by a majority vote of each House. The GNSO Operating Procedures shall be effective upon the expiration of a twenty-one (21) day public comment period, and shall be subject to Board oversight and review
Understanding that this is somewhat a different case than the ASO MOU, is it possible to do something that points to the current MOU and includes the condition under which the referenced MOU changes?
avri
On 18-Jan-16 15:27, Gregory, Holly wrote:
Dear CCWG ACCT Co-Chairs, Members, Participants and ICANN Staff,
We are writing to raise with you a high-level concern regarding the proposal to reference the 2004 Address Supporting Organization MOU (the “MOU”) in ICANN’s Mission Statement (Bylaws Article I, Section 1), which was discussed on CCWG-ACCT Call #77 (January 14).
In defining ICANN’s role in coordinating allocation and assignment at the top-most level of IP and AS numbers, Annex 05 from the Third Proposal provided as follows: “ICANN’s Mission is described in the ASO MoU between ICANN and RIRs.”
/We //recommend against trying to further define ICANN’s Mission through cross-reference to the MOU in the Bylaws and suggest that any specific language that you deem of critical import to defining ICANN’s Mission be actually incorporated. (We could not find a clear statement of the ICANN Mission in the MOU.)/
As a general matter, referencing all or part of an external agreement in bylaws presents a number of problems. For example:
· The bylaws may require a different process, parties, and threshold for amendment than the referenced agreement, and it is unclear legally which rules apply. This problem is certainly present here. Although the Mission will be a fundamental bylaw, the parties to the MOU could amend it on their own, circumventing the fundamental bylaw amendment process entirely. Alternatively, perhaps the MOU’s amendment provisions would be superceded by the fundamental bylaw amendment process. At a minimum, if the reference remains despite our advice, this issue should be addressed explicitly.
· Referencing an outside agreement in bylaws may have the legal effect of incorporating it into the bylaws, putting all its terms on an equal footing with the bylaws, which can create problems if its provisions conflict with the bylaws in any way. This issue has a greater chance of arising where an entire agreement is incorporated by reference, and is clearly a problem here. For example, ICANN’s Bylaws are ultimately governed by California law, but the MOU provides that it will be governed by International Chamber of Commerce rules in Bermuda. Again, if the reference remains despite our advice, the CCWG should decide which document governs in case of conflict (either generally or on a topic-by-topic basis).
· Although we generally recommend against it, clients have insisted on incorporating an entire existing agreement in their governing documents, essentially freezing the agreement as incorporated. It was suggested on the CCWG call that the Bylaws could reference the version of the MOU as of a specific date, excluding from the Bylaws future amendments to the MOU unless the community amended the Bylaws to update the reference in the Mission. While this strategy partially solves one problem, it leads to others. Assuming that the MOU incorporated in the Bylaws continues to evolve over time outside of the Bylaws, there will be two versions of the MOU -- the one in the Bylaws, and the one that documents the current understandings between the ASO and ICANN. At a minimum, this would be confusing; in a worst-case scenario, it could undermine the enforceability of the post-reference MOU.
· Any outside agreement to be referenced in bylaws must be carefully reviewed to assess and address the sorts of consequences noted above. We have briefly reviewed a version of the MOU, and note that the MOU itself incorporates other documents by reference, including the earlier 2003 version of the ICANN Bylaws, creating a circularity in terms of providing legal advice on this provision in the future.
While we originally thought it might be possible to work around these problems by inserting text from the MOU into the Bylaws describing this aspect of ICANN’s Mission, after our brief review of the MOU, it is not clear to us where or how it describes ICANN’s mission in any narrative text. As we read it the MOU sets out processes and mechanisms for developing policies but does not itself describe substantive limits on ICANN or purport to define ICANN’s Mission.
Bylaws may of course include a process for developing a scope of corporate activities within the bounds of a larger mission, and the mission can be updated as appropriate to reflect developments that come out of this process, but the process itself cannot logically become part of the mission.
We hope further CCWG discussion in light of our concern, regarding the goal that the ASO and the community seek by referencing the MOU in the Mission Statement, may provide a way forward without referencing the MOU itself in the Bylaws.
Holly and Rosemary
*HOLLY J. GREGORY* Partner and Co-Chair Global Corporate Governance & Executive Compensation Practice
*Sidley Austin LLP** *+1 212 839 5853 holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>
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Dear Holly and all, Thank you for this analysis. I note the strong concern here is that with reference to the ASO about the Mission, the ICANN Mission on the number resources can be changed, with agreement between ICANN and RIRs, without going through the standard process of changes in the Bylaws. We had further discussions in the ASO and to address this concern, we would like to suggest the alternative text below: "Coordinates the allocation and assignment at the top-most level of Internet Protocol (“IP”) and Autonomous System (“AS”) numbers. Further, it ratifies, at the global level, policies related to these IP and AS numbers and developed according to the ASO-MoU." - While it still appears to reference the ASO MoU, the important difference from the previous text is that it is *not referenced to describe ICANN's Mission*. - What it basically says is that ICANN's Mission on the number resources is to ratify global policies according to the ASO MoU. i.e., If there are changes ICANN's Mission in its relation to ratification of global policies, expansion of its Mission, or deleting this part of the Mission, it will need to go through the standard process of the changes in the Bylaws. It will not change, expand or remove ICANN's Mission without the agreed process proposed in the CCWG, just like any other parts of the Mission Statement. - Given the reference to the ASO MoU on the alternative text is limited to the ratification of global policies, even if the MoU can be changed based on agreement between ICANN and RIRs (as it is today), the scope of change is limited to how ICANN ratifies the global policies on the number resources. - Until today, the ratification of global number resources policies has been based on agreement between ICANN and RIRs per what is described in the ASO MoU, which does not affect the wider ICANN communities outside the ASO. Izumi On 2016/01/19 5:27, Gregory, Holly wrote:
Dear CCWG ACCT Co-Chairs, Members, Participants and ICANN Staff,
We are writing to raise with you a high-level concern regarding the proposal to reference the 2004 Address Supporting Organization MOU (the “MOU”) in ICANN’s Mission Statement (Bylaws Article I, Section 1), which was discussed on CCWG-ACCT Call #77 (January 14).
In defining ICANN’s role in coordinating allocation and assignment at the top-most level of IP and AS numbers, Annex 05 from the Third Proposal provided as follows: “ICANN’s Mission is described in the ASO MoU between ICANN and RIRs.”
We recommend against trying to further define ICANN’s Mission through cross-reference to the MOU in the Bylaws and suggest that any specific language that you deem of critical import to defining ICANN’s Mission be actually incorporated. (We could not find a clear statement of the ICANN Mission in the MOU.) As a general matter, referencing all or part of an external agreement in bylaws presents a number of problems. For example:
· The bylaws may require a different process, parties, and threshold for amendment than the referenced agreement, and it is unclear legally which rules apply. This problem is certainly present here. Although the Mission will be a fundamental bylaw, the parties to the MOU could amend it on their own, circumventing the fundamental bylaw amendment process entirely. Alternatively, perhaps the MOU’s amendment provisions would be superceded by the fundamental bylaw amendment process. At a minimum, if the reference remains despite our advice, this issue should be addressed explicitly.
· Referencing an outside agreement in bylaws may have the legal effect of incorporating it into the bylaws, putting all its terms on an equal footing with the bylaws, which can create problems if its provisions conflict with the bylaws in any way. This issue has a greater chance of arising where an entire agreement is incorporated by reference, and is clearly a problem here. For example, ICANN’s Bylaws are ultimately governed by California law, but the MOU provides that it will be governed by International Chamber of Commerce rules in Bermuda. Again, if the reference remains despite our advice, the CCWG should decide which document governs in case of conflict (either generally or on a topic-by-topic basis).
· Although we generally recommend against it, clients have insisted on incorporating an entire existing agreement in their governing documents, essentially freezing the agreement as incorporated. It was suggested on the CCWG call that the Bylaws could reference the version of the MOU as of a specific date, excluding from the Bylaws future amendments to the MOU unless the community amended the Bylaws to update the reference in the Mission. While this strategy partially solves one problem, it leads to others. Assuming that the MOU incorporated in the Bylaws continues to evolve over time outside of the Bylaws, there will be two versions of the MOU -- the one in the Bylaws, and the one that documents the current understandings between the ASO and ICANN. At a minimum, this would be confusing; in a worst-case scenario, it could undermine the enforceability of the post-reference MOU.
· Any outside agreement to be referenced in bylaws must be carefully reviewed to assess and address the sorts of consequences noted above. We have briefly reviewed a version of the MOU, and note that the MOU itself incorporates other documents by reference, including the earlier 2003 version of the ICANN Bylaws, creating a circularity in terms of providing legal advice on this provision in the future.
While we originally thought it might be possible to work around these problems by inserting text from the MOU into the Bylaws describing this aspect of ICANN’s Mission, after our brief review of the MOU, it is not clear to us where or how it describes ICANN’s mission in any narrative text. As we read it the MOU sets out processes and mechanisms for developing policies but does not itself describe substantive limits on ICANN or purport to define ICANN’s Mission.
Bylaws may of course include a process for developing a scope of corporate activities within the bounds of a larger mission, and the mission can be updated as appropriate to reflect developments that come out of this process, but the process itself cannot logically become part of the mission.
We hope further CCWG discussion in light of our concern, regarding the goal that the ASO and the community seek by referencing the MOU in the Mission Statement, may provide a way forward without referencing the MOU itself in the Bylaws.
Holly and Rosemary
HOLLY J. GREGORY Partner and Co-Chair Global Corporate Governance & Executive Compensation Practice
Sidley Austin LLP +1 212 839 5853 holly.gregory@sidley.com<mailto:holly.gregory@sidley.com>
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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 3 (Fundamental Bylaws) : To ensure that ICANN’s status as a California nonprofit public benefit corporation cannot be changed without Empowered Community approval, we recommend providing the Empowered Community with the right to approve any transfers of all or substantially all of the assets of ICANN. Without this protection, ICANN’s status as a California nonprofit public benefit corporation could be changed via transfer of assets and dissolution without Empowered Community approval. While language in Annex 3 now clarifies that changes to the Articles of Incorporation will require Empowered Community approval (in a similar process to changes to Fundamental Bylaws), and the Articles include provisions to the effect that ICANN is under California Nonprofit Public Benefit Corporation Law, there is a loophole that needs to be closed. While pursuant to Recommendation 3, Article provisions can only be changed with the approval of the Empowered Community, one common way of changing a corporation’s legal jurisdiction is NOT by amending articles but by the creation of a new entity in the desired jurisdiction followed by a transfer of all or substantially all the assets to the new entity. (Note that the other common approach is a merger, but the language in Annex 3 already protects the Empowered Community in that scenario since California law provides that a merger must be approved by anyone whose approval of an articles amendment is required, i.e., this would include the Empowered Community.) Therefore we recommend that a provision be added to the Articles (as allowed by Corporations Code Section 5911), requiring Empowered Community approval for a transfer of all or substantially all of the assets of ICANN. Such a provision would also protect the Empowered Community in case of a dissolution since any dissolution would be preceded by a transfer of assets. Annex 4 (Community IRP & Separation Powers): The Proposal currently provides that the Bylaws will require specific SO or AC concurrence in support of community IRP challenges against Board decisions that relate directly to that SO or AC. We recommend that consideration be given to the process through which this concurrence will be obtained with respect to ACs that have uniformly opted out of the escalation process (e.g., RSSAC or SSAC). See also the note below about another IRP concern. Depending how CCWG determines to address the concern, it may fit in Annex 4 or Annex 7 or both. Annex 7 (Scope of IRP) : Currently, the Proposal does not address in any detail who takes the actions necessary on the part of the Empowered Community to move the IRP and enforcement processes forward, once the Empowered Community has decided to act. We presume it is the chairs of the ACs and SOs working together as necessary but this has not been detailed. This issue is discussed in sections 4 and 5 of the memorandum we provided on November 6, 2015. (Link<https://community.icann.org/download/attachments/52896826/MemoonSoleDesignat...>). Note that this concern relates to both the IRP and enforcement generally and we would like clarification whether it is meant to be a Work Stream 2 issue or should be dealt with on a general basis now and then also addressed in more detail in Work Stream 2. (In either event, it will need to be mentioned in Annex 12.) We recommend that consideration be given to including language along the following lines at an appropriate place in the annexes concerning IRP and enforcement processes (and that appropriate mention be made in Annex 12 (Work Stream 2) regarding the need for additional implementation work on this issue) : When the Empowered Community has decided to shall pursue an IRP or enforcement litigation, the decision would be implemented by those chairs of the Supporting Organizations and Advisory Committees who supported the proposal. Those chairs of the SOs and ACs who supported the decision to file an Empowered Community IRP or undertake enforcement litigation would constitute a “Chairs Council” that would, by majority vote, act on behalf of the Empowered Community in taking any reasonably necessary ministerial steps to implement the decision to pursue the Empowered Community IRP, and to delegate and oversee tasks related to the Empowered Community IRP, including but not limited to engagement of legal counsel to represent the Empowered Community in the Empowered Community IRP, approve court filings, or to enforce an Empowered Community IRP Award in court if ultimately necessary. 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 holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> **************************************************************************************************** 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. ****************************************************************************************************
Holly, We sent Final draft Annex 3 out for legal review a few hours ago. Please accept the current changes in that document and then put in you changes using track changes including the point you make below. thanks B. On Fri, Jan 22, 2016 at 1:00 PM, Gregory, Holly <holly.gregory@sidley.com> wrote:
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 3 (Fundamental Bylaws) :* To ensure that ICANN’s status as a California nonprofit public benefit corporation cannot be changed without Empowered Community approval, we recommend providing the Empowered Community with the right to approve any transfers of all or substantially all of the assets of ICANN. Without this protection, ICANN’s status as a California nonprofit public benefit corporation could be changed via transfer of assets and dissolution without Empowered Community approval.
While language in Annex 3 now clarifies that changes to the Articles of Incorporation will require Empowered Community approval (in a similar process to changes to Fundamental Bylaws), and the Articles include provisions to the effect that ICANN is under California Nonprofit Public Benefit Corporation Law, there is a loophole that needs to be closed. While pursuant to Recommendation 3, Article provisions can only be changed with the approval of the Empowered Community, one common way of changing a corporation’s legal jurisdiction is NOT by amending articles but by the creation of a new entity in the desired jurisdiction followed by a transfer of all or substantially all the assets to the new entity. (Note that the other common approach is a merger, but the language in Annex 3 already protects the Empowered Community in that scenario since California law provides that a merger must be approved by anyone whose approval of an articles amendment is required, i.e., this would include the Empowered Community.) *Therefore we recommend that a provision be added to the Articles (as allowed by Corporations Code Section 5911), requiring Empowered Community approval for a transfer of all or substantially all of the assets of ICANN.* Such a provision would also protect the Empowered Community in case of a dissolution since any dissolution would be preceded by a transfer of assets.
*Annex 4 (Community IRP & Separation Powers):* The Proposal currently provides that the Bylaws will require specific SO or AC concurrence in support of community IRP challenges against Board decisions that relate directly to that SO or AC. *We recommend that consideration be given to the process through which this concurrence will be obtained with respect to ACs that have uniformly opted out of the escalation process (e.g., RSSAC or SSAC).* See also the note below about another IRP concern. Depending how CCWG determines to address the concern, it may fit in Annex 4 or Annex 7 or both.
*Annex 7 (Scope of IRP) *: Currently, the Proposal does not address in any detail who takes the actions necessary on the part of the Empowered Community to move the IRP and enforcement processes forward, once the Empowered Community has decided to act. We presume it is the chairs of the ACs and SOs working together as necessary but this has not been detailed. This issue is discussed in sections 4 and 5 of the memorandum we provided on November 6, 2015. (*Link <https://community.icann.org/download/attachments/52896826/MemoonSoleDesignator-CEVImplementation00730666-4xA3536-0001.pdf?version=1&modificationDate=1447167804000&api=v2>* ).
Note that this concern relates to both the IRP and enforcement generally and we would like clarification whether it is meant to be a Work Stream 2 issue or should be dealt with on a general basis now and then also addressed in more detail in Work Stream 2. (In either event, it will need to be mentioned in Annex 12.) *We recommend that consideration be given to including language along the following lines at an appropriate place in the annexes concerning IRP and enforcement processes (and that appropriate mention be made in Annex 12 (Work Stream 2) regarding the need for additional implementation work **on this issue) :*
*When the Empowered Community has decided to shall pursue an IRP or enforcement litigation, the decision would be implemented by those chairs of the Supporting Organizations and Advisory Committees who supported the proposal. Those chairs of the SOs and ACs who supported the decision to file an Empowered Community IRP or undertake enforcement litigation would constitute a “Chairs Council” that would, by majority vote, act on behalf of the Empowered Community in taking any reasonably necessary ministerial steps to implement the decision to pursue the Empowered Community IRP, and to delegate and oversee tasks related to the Empowered Community IRP, including but not limited to engagement of legal counsel to represent the Empowered Community in the Empowered Community IRP, approve court filings, or to enforce an Empowered Community IRP Award in court if ultimately necessary.*
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 holly.gregory@sidley.com
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Dear CCWG-ACCT Co-Chairs, Members, Participants and ICANN Staff, Attached please find detailed comments from Sidley and Adler on the 2nd reading conclusion drafts of Annexes 2 and 12. For your convenience, in addition to our comments we have attached the drafts that we are commenting on. Please note that while we are providing detailed comments on the Annexes on a rolling basis, we should have the opportunity to review the entire draft of the CCWG Proposal in full when it is in closer to final form. 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 holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> **************************************************************************************************** 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. ****************************************************************************************************
Dear CCWG-ACCT Co-Chairs, Members, Participants and ICANN Staff, Attached please find detailed comments from Sidley and Adler on the 2nd reading conclusion drafts of Annexes 1 and 4. For your convenience, in addition to our comments we have attached the drafts that we are commenting on. Please note that while we are providing detailed comments on the Annexes on a rolling basis, we should have the opportunity to review the entire draft of the CCWG Proposal in full when it is in closer to final form. 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 holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> **************************************************************************************************** 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. ****************************************************************************************************
Dear CCWG-ACCT Co-Chairs, Members, Participants and ICANN Staff, Attached please very light comments from Sidley and Adler on the Final Draft of Annex 12. (We are pleased to have been able to turn this in well under 24 hours!) Please note that while we should have the opportunity to review the entire draft of the CCWG Proposal in full when the full draft is available in close to final form. 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 holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> **************************************************************************************************** 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. ****************************************************************************************************
Dear CCWG-ACCT Co-Chairs, Members, Participants and ICANN Staff, We had a good discussion with ICANN lawyers (Sam and John) and with Kevin Espinola of Jones Day today as was certified to us regarding the Board’s understanding of the Human Rights language that we had proposed (set forth below). As we now understand the Board’s concern, while the language we proposed would not create any additional responsibilities beyond what currently exists in applicable law, providing a Human Rights commitment in the Bylaws opens the range of human rights topics to IRP challenge where Board action or inaction is perceived by someone to be out of line with human rights obligations under applicable law. Without benefit of the further definition around the scope of ICANN’s human rights obligations (the Framework for Interpretation) planned for Work Stream 2, in the interim there could be a slew of IRP challenges that have little actual merit from a legal perspective, placing the IRP panel (which may be comprised of persons without significant human rights law understanding) in a position of arbitrating a wide range of issues that may be driven by divergent interests that have little relevance to ICANN. This could result in a significant use of ICANN time and attention and scarce IRP resources with little actual added value in holding ICANN accountable. This is a legitimate concern. One solution that is in line with the discussion around options from the last CCWG call is to assure that the IRP process is not available until the Work Stream 2 effort to further articulate the human rights Framework for Interpretation is finished. The CCWG may wish to consider including in the Bylaws something along the following lines (the language in red is new; the language in black is essentially what we had proposed originally) : Within its Mission and in its operations, ICANN will respect internationally recognized Human Rights. This commitment shall not in any way create an obligation for ICANN, or any entity having a relationship with ICANN, to protect or enforce Human Rights beyond what may be required by applicable law. In particular, this does not create any additional obligation for ICANN to respond to or consider any complaint, request, or demand seeking the enforcement of Human Rights by ICANN. This Bylaw provision is not a valid basis for, and shall not give rise to, any IRP process until a Framework of Interpretation is developed as part of “Work Stream 2” by the CCWG-Accountability or another Cross Community Working Group chartered for such purpose by one or more Supporting Organizations or Advisory Committees. ICANN shall support the establishment and work of such a Group to facilitate development of the Framework of Interpretation as promptly as possible. Note that if the CCWG decides to move in this direction, Annex 12 (Work Stream 2) should include a reference to the commitment in the last sentence. 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 holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> **************************************************************************************************** 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. ****************************************************************************************************
Dear Holly, dear Rosemary, Thank you very much for this update. I believe the suggested amendment does address concerns on both sides but I would like to, of course, hear the feedback from the larger group. All, The suggested text would, in my view, guarantee that a commitment to respect human rights is in place as part of WS1 and would also provide the safeguard to avoid the abuse of the bylaw in the meantime the FOI is developed. Please share your feedback at your earliest convenience so we can continue our way forward on this issue and hopefully finalize it in the next call we include the item as part of our agenda. Thanks to our legal team and ICANN’s legal team for helping us understand the different concerns around the issue and proposing a way forward. Saludos, León
El 20/01/2016, a las 8:40 p.m., Gregory, Holly <holly.gregory@sidley.com> escribió:
Dear CCWG-ACCT Co-Chairs, Members, Participants and ICANN Staff,
We had a good discussion with ICANN lawyers (Sam and John) and with Kevin Espinola of Jones Day today as was certified to us regarding the Board’s understanding of the Human Rights language that we had proposed (set forth below). As we now understand the Board’s concern, while the language we proposed would not create any additional responsibilities beyond what currently exists in applicable law, providing a Human Rights commitment in the Bylaws opens the range of human rights topics to IRP challenge where Board action or inaction is perceived by someone to be out of line with human rights obligations under applicable law. Without benefit of the further definition around the scope of ICANN’s human rights obligations (the Framework for Interpretation) planned for Work Stream 2, in the interim there could be a slew of IRP challenges that have little actual merit from a legal perspective, placing the IRP panel (which may be comprised of persons without significant human rights law understanding) in a position of arbitrating a wide range of issues that may be driven by divergent interests that have little relevance to ICANN. This could result in a significant use of ICANN time and attention and scarce IRP resources with little actual added value in holding ICANN accountable. This is a legitimate concern. One solution that is in line with the discussion around options from the last CCWG call is to assure that the IRP process is not available until the Work Stream 2 effort to further articulate the human rights Framework for Interpretation is finished.
The CCWG may wish to consider including in the Bylaws something along the following lines (the language in red is new; the language in black is essentially what we had proposed originally) :
Within its Mission and in its operations, ICANN will respectinternationally recognized Human Rights. This commitment shall not in any way create an obligation for ICANN, or any entity having a relationship with ICANN, to protect or enforce Human Rights beyond what may be required by applicable law. In particular, this does not create any additional obligation for ICANN to respond to or consider any complaint, request, or demand seeking the enforcement of Human Rights by ICANN. This Bylaw provision is not a valid basis for, and shall not give rise to, any IRP process until a Framework of Interpretation is developed as part of “Work Stream 2” by the CCWG-Accountability or another Cross Community Working Group chartered for such purpose by one or more Supporting Organizations or Advisory Committees. ICANN shall support the establishment and work of such a Group to facilitate development of the Framework of Interpretation as promptly as possible.
Note that if the CCWG decides to move in this direction, Annex 12 (Work Stream 2) should include a reference to the commitment in the last sentence.
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 holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>
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On the face of it, this looks good to me. best, Jordan On 21 January 2016 at 15:59, León Felipe Sánchez Ambía < leonfelipe@sanchez.mx> wrote:
Dear Holly, dear Rosemary,
Thank you very much for this update.
I believe the suggested amendment does address concerns on both sides but I would like to, of course, hear the feedback from the larger group.
All,
The suggested text would, in my view, guarantee that a commitment to respect human rights is in place as part of WS1 and would also provide the safeguard to avoid the abuse of the bylaw in the meantime the FOI is developed.
Please share your feedback at your earliest convenience so we can continue our way forward on this issue and hopefully finalize it in the next call we include the item as part of our agenda.
Thanks to our legal team and ICANN’s legal team for helping us understand the different concerns around the issue and proposing a way forward.
Saludos,
León
El 20/01/2016, a las 8:40 p.m., Gregory, Holly <holly.gregory@sidley.com> escribió:
Dear CCWG-ACCT Co-Chairs, Members, Participants and ICANN Staff,
We had a good discussion with ICANN lawyers (Sam and John) and with Kevin Espinola of Jones Day today as was certified to us regarding the Board’s understanding of the Human Rights language that we had proposed (set forth below). As we now understand the Board’s concern, while the language we proposed would not create any additional responsibilities beyond what currently exists in applicable law, providing a Human Rights commitment in the Bylaws opens the range of human rights topics to IRP challenge where Board action or inaction is perceived by someone to be out of line with human rights obligations under applicable law. Without benefit of the further definition around the scope of ICANN’s human rights obligations (the Framework for Interpretation) planned for Work Stream 2, in the interim there could be a slew of IRP challenges that have little actual merit from a legal perspective, placing the IRP panel (which may be comprised of persons without significant human rights law understanding) in a position of arbitrating a wide range of issues that may be driven by divergent interests that have little relevance to ICANN. This could result in a significant use of ICANN time and attention and scarce IRP resources with little actual added value in holding ICANN accountable. This is a legitimate concern. One solution that is in line with the discussion around options from the last CCWG call is to assure that the IRP process is not available until the Work Stream 2 effort to further articulate the human rights Framework for Interpretation is finished.
The CCWG may wish to consider including in the Bylaws something along the following lines (the language in *red* is new; the language in black is essentially what we had proposed originally) :
*Within its Mission and in its operations, ICANN will respect**internationally recognized Human Rights. This commitment shall not* *in any way create an obligation for ICANN, or any entity having a* *relationship with ICANN, to protect or enforce Human Rights beyond* *what may be required by applicable law. In particular, this does not* *create any additional obligation for ICANN to respond to or consider* *any complaint, request, or demand seeking the enforcement of* *Human Rights by ICANN. This Bylaw provision **is not a valid basis for, and shall not give rise to, any IRP process until a Framework of Interpretation is developed as part of “Work Stream 2” by the CCWG-Accountability or another Cross Community Working Group chartered for such purpose by one or more Supporting Organizations or Advisory Committees. I**CANN shall support the establishment and work of such a Group to facilitate development of the Framework of Interpretation as promptly as possible.*
Note that if the CCWG decides to move in this direction, Annex 12 (Work Stream 2) should include a reference to the commitment in the last sentence.
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 holly.gregory@sidley.com
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-- Jordan Carter Chief Executive *InternetNZ* +64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz *A better world through a better Internet *
So long as the 'applicable law' clause remains, ICANN will have NO legal obligations to respect human rights, post transition, on a literal construction. Therefore the proposed addition, whilst harmless, is perfectly otiose. There are many lawyers involved in proposing the 'applicable law' language. I cannot believe you do not know that there is NO 'applicable law' once ICANN is no longer an instrumentality of the state. Otherwise please give an example of a single legal provision on human rights that would fall under 'applicable law'. Just one.
Dear Holley, Thank you very much for explanation and further clarifications. In fact the modified option c which closed to be emerging saying exactly the same thing due to the fact that CCWG retains the text as contained in the initial 3rd proposal by adding the following: “However i)) the effective date of coming into force of this part of Bylaws ( provisions/language relating to the Human Rights ) are postponed until the FOI are prepared, finalized and approved as part of work Stream 2.and ii) The IRP process will not be available in regard with Human Right until the Work Stream 2 effort to further articulate the human rights Framework for Interpretation is finalized - I prefer not to refer to " Dorming or Dormant* Bylaws " AS THESE TERMS ARE NOT EXACTLY LEGALLY VALID Regards Kavouss 2016-01-21 8:12 GMT+01:00 Nigel Roberts <nigel@channelisles.net>:
So long as the 'applicable law' clause remains, ICANN will have NO legal obligations to respect human rights, post transition, on a literal construction.
Therefore the proposed addition, whilst harmless, is perfectly otiose.
There are many lawyers involved in proposing the 'applicable law' language.
I cannot believe you do not know that there is NO 'applicable law' once ICANN is no longer an instrumentality of the state.
Otherwise please give an example of a single legal provision on human rights that would fall under 'applicable law'.
Just one.
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Just to clarify, laws that prohibit child labor, limit the hours that employees may be required to work without receiving over-time pay, require employers to refrain from limiting the ability of employees to freely associate for the purpose of pursuing unionization, protect against discrimination on the basis of race, gender, disability, or other criteria -- and there are more examples-- exist in many jurisdictions and are examples of "applicable laws" that protect human rights. HOLLY J. GREGORY Partner and Co-Chair Global Corporate Governance & Executive Compensation Practice Sidley Austin LLP +1 212 839 5853 holly.gregory@sidley.com -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Nigel Roberts Sent: Thursday, January 21, 2016 2:13 AM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Report on Lawyers Call re Human Rights So long as the 'applicable law' clause remains, ICANN will have NO legal obligations to respect human rights, post transition, on a literal construction. Therefore the proposed addition, whilst harmless, is perfectly otiose. There are many lawyers involved in proposing the 'applicable law' language. I cannot believe you do not know that there is NO 'applicable law' once ICANN is no longer an instrumentality of the state. Otherwise please give an example of a single legal provision on human rights that would fall under 'applicable law'. Just one. _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community **************************************************************************************************** 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. ****************************************************************************************************
Thanks, Holly for responding to this. I would that ICANN's obligation to operate in accordance with "applicable laws" has nothing to do with its current relationship to the US Government (and I heartily disagree with the characterization of ICANN as "an instrumentality of the state"). ICANN's obligation to operate in accordance with applicable laws (including applicable laws that protect Human Rights) will not change with the transition. Greg On Thu, Jan 21, 2016 at 8:35 PM, Gregory, Holly <holly.gregory@sidley.com> wrote:
Just to clarify, laws that prohibit child labor, limit the hours that employees may be required to work without receiving over-time pay, require employers to refrain from limiting the ability of employees to freely associate for the purpose of pursuing unionization, protect against discrimination on the basis of race, gender, disability, or other criteria -- and there are more examples-- exist in many jurisdictions and are examples of "applicable laws" that protect human rights.
HOLLY J. GREGORY Partner and Co-Chair Global Corporate Governance & Executive Compensation Practice
Sidley Austin LLP +1 212 839 5853 holly.gregory@sidley.com
-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] On Behalf Of Nigel Roberts Sent: Thursday, January 21, 2016 2:13 AM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Report on Lawyers Call re Human Rights
So long as the 'applicable law' clause remains, ICANN will have NO legal obligations to respect human rights, post transition, on a literal construction.
Therefore the proposed addition, whilst harmless, is perfectly otiose.
There are many lawyers involved in proposing the 'applicable law' language.
I cannot believe you do not know that there is NO 'applicable law' once ICANN is no longer an instrumentality of the state.
Otherwise please give an example of a single legal provision on human rights that would fall under 'applicable law'.
Just one.
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I'm referring to the same laws as Holly was. I have no idea why you think these do not apply to "non-state actors" -- that's exactly who they are supposed to apply to. I also have no idea why you apparently believe ICANN is currently bound by laws that apply to "state actors." ICANN is not currently a state actor. It is a private non-profit corporation incorporated and domiciled in the State of California which performs certain functions under a contract with the US Government. The contract includes a large number of provisions that apply to ICANN and all other government contractors, none of which make ICANN a "state actor." Greg On Friday, January 22, 2016, Nigel Roberts <nigel@channelisles.net> wrote:
Please quote your authority that any such laws exist in the US with effect on non-state actors.
(including applicable laws that protect Human Rights) will not change with
the transition.
Those laws certainly apply. But they are not laws on human rights. It seems to me that the correct understanding of the current position is that the CCWG intends that ICANN should be free of any human rights obligations that are not imposed on private sector bodies by US domestic legislation. On 22/01/16 07:34, Greg Shatan wrote:
I'm referring to the same laws as Holly was. I have no idea why you think these do not apply to "non-state actors" -- that's exactly who they are supposed to apply to.
I also have no idea why you apparently believe ICANN is currently bound by laws that apply to "state actors." ICANN is not currently a state actor. It is a private non-profit corporation incorporated and domiciled in the State of California which performs certain functions under a contract with the US Government. The contract includes a large number of provisions that apply to ICANN and all other government contractors, none of which make ICANN a "state actor."
Greg On Friday, January 22, 2016, Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net>> wrote:
Please quote your authority that any such laws exist in the US with effect on non-state actors.
(including applicable laws that protect Human Rights) will not change with the transition.
Holly This clearly shows the source of the confusion. The laws you quote, are domestic US laws on specific issues (some of which do act to protect human rights) Domestic legal obligation obviouls do not need to be stated or quoted in the ByLaws, since they apply as a matter of domestic law. But none of the rights in the UDHR apply to ICANN as a private company, such as the right to a fair hearing, the right to property etc. As a private company, there is no obligation on ICANN, for example, to ensure fair hearing of parties affected by its decisions. On 22/01/16 01:35, Gregory, Holly wrote:
Just to clarify, laws that prohibit child labor, limit the hours that employees may be required to work without receiving over-time pay, require employers to refrain from limiting the ability of employees to freely associate for the purpose of pursuing unionization, protect against discrimination on the basis of race, gender, disability, or other criteria -- and there are more examples-- exist in many jurisdictions and are examples of "applicable laws" that protect human rights.
HOLLY J. GREGORY Partner and Co-Chair Global Corporate Governance & Executive Compensation Practice
Sidley Austin LLP +1 212 839 5853 holly.gregory@sidley.com
-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Nigel Roberts Sent: Thursday, January 21, 2016 2:13 AM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Report on Lawyers Call re Human Rights
So long as the 'applicable law' clause remains, ICANN will have NO legal obligations to respect human rights, post transition, on a literal construction.
Therefore the proposed addition, whilst harmless, is perfectly otiose.
There are many lawyers involved in proposing the 'applicable law' language.
I cannot believe you do not know that there is NO 'applicable law' once ICANN is no longer an instrumentality of the state.
Otherwise please give an example of a single legal provision on human rights that would fall under 'applicable law'.
Just one.
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And ICANN deals with entities in virtually every country in the world, so Universal Human Rights should cover it... el On 2016-01-22 09:19, Nigel Roberts wrote:
Holly
This clearly shows the source of the confusion. The laws you quote, are domestic US laws on specific issues (some of which do act to protect human rights)
Domestic legal obligation obviouls do not need to be stated or quoted in the ByLaws, since they apply as a matter of domestic law.
But none of the rights in the UDHR apply to ICANN as a private company, such as the right to a fair hearing, the right to property etc.
As a private company, there is no obligation on ICANN, for example, to ensure fair hearing of parties affected by its decisions. [...] -- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/
But the UDHR is non-binding. Further, these HR instruments apply only to state actors, which is why it's essential for the ICANN bylaws to categorically commit to respecting human rights. CCWG intends to at least have this commitment in place in WS1, since it isn't explicitly stated anywhere. The framework of interpretation, to be developed in WS2, will make clear how we go about the implementation. In the mean time, ICANN's obligations to obey domestic law (applicable law) continues, unchanged. Aarti Bhavana | Research Fellow Centre for Communication Governance | National Law University, Delhi | Sector-14, Dwarka, New Delhi - 110078 | Cell: (+91) 965-464-6846 | Fax: (+91) 11-280-34256 | www.ccgdelhi.org . www.ccgtlr.org <http://www.ccgdelhi.org/> | On 22 January 2016 at 13:06, Dr Eberhard W Lisse <el@lisse.na> wrote:
And ICANN deals with entities in virtually every country in the world, so Universal Human Rights should cover it...
el
On 2016-01-22 09:19, Nigel Roberts wrote:
Holly
This clearly shows the source of the confusion. The laws you quote, are domestic US laws on specific issues (some of which do act to protect human rights)
Domestic legal obligation obviouls do not need to be stated or quoted in the ByLaws, since they apply as a matter of domestic law.
But none of the rights in the UDHR apply to ICANN as a private company, such as the right to a fair hearing, the right to property etc.
As a private company, there is no obligation on ICANN, for example, to ensure fair hearing of parties affected by its decisions. [...] -- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/
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Because they are not binding means we need to bind ICANN to them el [...] On 22 Jan 2016, 09:56 +0200, Aarti Bhavana<aarti.bhavana@nludelhi.ac.in>, wrote:
But the UDHR is non-binding. Further, these HR instruments apply only to state actors, which is why it's essential for the ICANN bylaws to categorically commit to respecting human rights. CCWG intends to at least have this commitment in place in WS1, since it isn't explicitly stated anywhere. The framework of interpretation, to be developed in WS2, will make clear how we go about the implementation. In the mean time, ICANN's obligations to obey domestic law (applicable law) continues, unchanged.
Aarti Bhavana | Research Fellow Centre for Communication Governance | National Law University, Delhi |Sector-14, Dwarka, New Delhi - 110078 | Cell: (+91) 965-464-6846| Fax: (+91) 11-280-34256|www.ccgdelhi.org(http://www.ccgdelhi.org/).www.ccgtlr.org(http://www.ccgdelhi.org/)|
On 22 January 2016 at 13:06, Dr Eberhard W Lisse<el@lisse.na(mailto:el@lisse.na)>wrote:
And ICANN deals with entities in virtually every country in the world, so Universal Human Rights should cover it...
el
On 2016-01-22 09:19, Nigel Roberts wrote:
Holly
This clearly shows the source of the confusion.The laws you quote, are domestic US laws on specific issues (some of which do act to protect human rights)
Domestic legal obligation obviouls do not need to be stated or quoted in the ByLaws, since they apply as a matter of domestic law.
But none of the rights in the UDHR apply to ICANN as a private company, such as the right to a fair hearing, the right to property etc.
As a private company, there is no obligation on ICANN, for example, to ensure fair hearing of parties affected by its decisions. [...] -- Dr. Eberhard W. Lisse\/ Obstetrician&Gynaecologist (Saar) el@lisse.NA/ *|Telephone: +264 81 124 6733 (cell) PO Box 8421\/ Bachbrecht, Namibia;____/
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Dear All, The discussions go far beyound from what was envisaged. I tend to agree with Nigel view points There will be ample opprtunities to discuss.analyze all aspects of the matter within the FWI AT ws2 Regards Kavouss
I think that we are all in agreement that the commitment to respect human rights should be included in the ICANN bylaws together with the FoI by Work Stream 2. We are also all in agreement that a recommendation to include those commitments and FoI in the ICANN bylaws should be part of the Work Stream 1 final proposal. The issue is: should it be an interim bylaw in which the commitments are included without the frame of interpretation before the transition. What is the use of the interim bylaw if the FoI is not there yet? How can we avoid the risk to have those commitments applied to the content which is not in the remit of ICANN? We are speaking about a period of a few months between the transition and the completion of the work stream 2 work. If it is so dangerous to stay for this short period without the commitments in the bylaws, why we don’t create another interim bylaw that include the accountability mechanisms for the community that we said we will address them in WS 2? We are about to transfer a part of the powers from the ICANN board to the community, so the accountability mechanisms for the community are too important, and yet, we accepted to stay this short period without them in the ICANN bylaws. I’m not a lawyer, and can’t say if the language proposed by Holly and Rosemary (in red) would really make the interim bylaw dormant till the FoI is developed. If it does, I will support it even if I find it useless to create an interim bylaw that will absolutely stay dormant. ----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114 +216 52 385 114 -----------------------------------------------------------------------------
Le 22 janv. 2016 à 09:54, Kavouss Arasteh <kavouss.arasteh@gmail.com> a écrit :
Dear All, The discussions go far beyound from what was envisaged. I tend to agree with Nigel view points There will be ample opprtunities to discuss.analyze all aspects of the matter within the FWI AT ws2 Regards Kavouss
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On Fri, Jan 22, 2016 at 12:14 PM, Tijani BEN JEMAA < tijani.benjemaa@topnet.tn> wrote:
I’m not a lawyer, and can’t say if the language proposed by Holly and Rosemary (in red) would really make the interim bylaw dormant till the FoI is developed. If it does, I will support it even if I find it useless to create an interim bylaw that will absolutely stay dormant.
+1~ Cheers!
----------------------------------------------------------------------------- *Tijani BEN JEMAA* Executive Director Mediterranean Federation of Internet Associations (*FMAI*) Phone: +216 98 330 114 +216 52 385 114
-----------------------------------------------------------------------------
Le 22 janv. 2016 à 09:54, Kavouss Arasteh <kavouss.arasteh@gmail.com> a écrit :
Dear All, The discussions go far beyound from what was envisaged. I tend to agree with Nigel view points There will be ample opprtunities to discuss.analyze all aspects of the matter within the FWI AT ws2 Regards Kavouss
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-- ------------------------------------------------------------------------ *Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email: <http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>* Bringing another down does not take you up - think about your action!
Tijani, With respect, your summary is inaccurate. A number of people obviously do not share those views. Paul and I, for instance, are on record having serious misgivings about the HR commitment being in the bylaws: https://community.icann.org/download/attachments/56136438/4.%20b)%20Heritage.... My preference is to move this entirely to WS2, which the current debate is only strengthening. I know that many, perhaps a majority, disagree. But if opinions were as universal as you indicated, I would think this issue would be resolved by now. Best, Brett ________________________________ Brett Schaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097 heritage.org<http://heritage.org/> On Jan 22, 2016, at 6:17 AM, Tijani BEN JEMAA <tijani.benjemaa@topnet.tn<mailto:tijani.benjemaa@topnet.tn>> wrote: I think that we are all in agreement that the commitment to respect human rights should be included in the ICANN bylaws together with the FoI by Work Stream 2. We are also all in agreement that a recommendation to include those commitments and FoI in the ICANN bylaws should be part of the Work Stream 1 final proposal. The issue is: should it be an interim bylaw in which the commitments are included without the frame of interpretation before the transition. What is the use of the interim bylaw if the FoI is not there yet? How can we avoid the risk to have those commitments applied to the content which is not in the remit of ICANN? We are speaking about a period of a few months between the transition and the completion of the work stream 2 work. If it is so dangerous to stay for this short period without the commitments in the bylaws, why we don’t create another interim bylaw that include the accountability mechanisms for the community that we said we will address them in WS 2? We are about to transfer a part of the powers from the ICANN board to the community, so the accountability mechanisms for the community are too important, and yet, we accepted to stay this short period without them in the ICANN bylaws. I’m not a lawyer, and can’t say if the language proposed by Holly and Rosemary (in red) would really make the interim bylaw dormant till the FoI is developed. If it does, I will support it even if I find it useless to create an interim bylaw that will absolutely stay dormant. ----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114 +216 52 385 114 ----------------------------------------------------------------------------- Le 22 janv. 2016 à 09:54, Kavouss Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> a écrit : Dear All, The discussions go far beyound from what was envisaged. I tend to agree with Nigel view points There will be ample opprtunities to discuss.analyze all aspects of the matter within the FWI AT ws2 Regards Kavouss _______________________________________________ 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<https://mm.icann.org/mailman/listinfo/accountability-cross-community> _______________________________________________ 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
I most certainly am not in agreement to postpone sine die. el -- Sent from Dr Lisse's iPad mini 4
On 22 Jan 2016, at 13:14, Tijani BEN JEMAA <tijani.benjemaa@topnet.tn> wrote:
I think that we are all in agreement that the commitment to respect human rights should be included in the ICANN bylaws together with the FoI by Work Stream 2. We are also all in agreement that a recommendation to include those commitments and FoI in the ICANN bylaws should be part of the Work Stream 1 final proposal. The issue is: should it be an interim bylaw in which the commitments are included without the frame of interpretation before the transition.
What is the use of the interim bylaw if the FoI is not there yet? How can we avoid the risk to have those commitments applied to the content which is not in the remit of ICANN? We are speaking about a period of a few months between the transition and the completion of the work stream 2 work.
If it is so dangerous to stay for this short period without the commitments in the bylaws, why we don’t create another interim bylaw that include the accountability mechanisms for the community that we said we will address them in WS 2? We are about to transfer a part of the powers from the ICANN board to the community, so the accountability mechanisms for the community are too important, and yet, we accepted to stay this short period without them in the ICANN bylaws.
I’m not a lawyer, and can’t say if the language proposed by Holly and Rosemary (in red) would really make the interim bylaw dormant till the FoI is developed. If it does, I will support it even if I find it useless to create an interim bylaw that will absolutely stay dormant.
----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114 +216 52 385 114 -----------------------------------------------------------------------------
Le 22 janv. 2016 à 09:54, Kavouss Arasteh <kavouss.arasteh@gmail.com> a écrit :
Dear All, The discussions go far beyound from what was envisaged. I tend to agree with Nigel view points There will be ample opprtunities to discuss.analyze all aspects of the matter within the FWI AT ws2 Regards Kavouss
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On 22/01/16 07:55, Aarti Bhavana wrote:
But the UDHR is non-binding. Further, these HR instruments apply only to state actors, which is why it's essential for the ICANN bylaws to categorically commit to respecting human rights. CCWG intends to at least have this commitment in place in WS1, since it isn't explicitly stated anywhere.
Exactly. I fully support that position. But the qualifications proposed in the current draft, designed legally to limit ICANN to 'applicable law' appear to have the intention, and certainly would have the effect of entirely remove this commitment, since UDHR (or ECHR, or EU Charter) rights are not applicable law in dualist states, such as the USA.
Hi Nigel, The way I see it, the proposed language is to ensure that there is exists a formal human rights commitment. How exactly this commitment is implemented (for e.g., is there a commitment towards UDHR, ICCPR, ICESCR, UNGP, ECHR, etc) is something slated to be discussed in WS2. So while the bylaw language does not do much by itself, it does create the path for further development in WS2, which is absolutely necessary, since we don't know what the post-transition ICANN environment will look like. Best, Aarti On 22 Jan 2016 1:58 pm, "Nigel Roberts" <nigel@channelisles.net> wrote:
On 22/01/16 07:55, Aarti Bhavana wrote:
But the UDHR is non-binding. Further, these HR instruments apply only to state actors, which is why it's essential for the ICANN bylaws to categorically commit to respecting human rights. CCWG intends to at least have this commitment in place in WS1, since it isn't explicitly stated anywhere.
Exactly. I fully support that position.
But the qualifications proposed in the current draft, designed legally to limit ICANN to 'applicable law' appear to have the intention, and certainly would have the effect of entirely remove this commitment, since UDHR (or ECHR, or EU Charter) rights are not applicable law in dualist states, such as the USA. _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Agreed, and I'm content with the approach, so long as three points are covered. 1. The commitment to respect human rights in a PTI must be explicit. 2. There cannot be words that dilute or remove the obligation 3. That the development of a framework for corporate respect for human rights is a binding commitment on ICANN that it can't punt into the weeds once it gets its freedom from State control. On 22/01/16 10:35, Aarti Bhavana wrote:
Hi Nigel,
The way I see it, the proposed language is to ensure that there is exists a formal human rights commitment. How exactly this commitment is implemented (for e.g., is there a commitment towards UDHR, ICCPR, ICESCR, UNGP, ECHR, etc) is something slated to be discussed in WS2. So while the bylaw language does not do much by itself, it does create the path for further development in WS2, which is absolutely necessary, since we don't know what the post-transition ICANN environment will look like.
Best,
Aarti
On 22 Jan 2016 1:58 pm, "Nigel Roberts" <nigel@channelisles.net <mailto:nigel@channelisles.net>> wrote:
On 22/01/16 07:55, Aarti Bhavana wrote:
But the UDHR is non-binding. Further, these HR instruments apply only to state actors, which is why it's essential for the ICANN bylaws to categorically commit to respecting human rights. CCWG intends to at least have this commitment in place in WS1, since it isn't explicitly stated anywhere.
Exactly. I fully support that position.
But the qualifications proposed in the current draft, designed legally to limit ICANN to 'applicable law' appear to have the intention, and certainly would have the effect of entirely remove this commitment, since UDHR (or ECHR, or EU Charter) rights are not applicable law in dualist states, such as the USA. _______________________________________________ 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
On 22 Jan 2016 8:56 a.m., "Aarti Bhavana" <aarti.bhavana@nludelhi.ac.in> wrote:
CCWG intends to at least have this commitment in place in WS1, since it isn't explicitly stated anywhere.
SO: I assume the "anywhere" referred to here implies other non-icann organisations that have such interests in human right. As to the intent of WS1, I am not sure what you stated above is the intent, especially if "respect" implies a binding requirement.
The framework of interpretation, to be developed in WS2, will make clear how we go about the implementation. In the mean time, ICANN's obligations to obey domestic law (applicable law) continues, unchanged.
SO: Isn't the lack of framework an important reason why we should not get any HR commitment from ICANN other than the commitment to work with the community to ensure that the framework is developed in WS2. It's interesting how this HR topic has stylishly become a major topic in WS1, perhaps it was a mistake that WP4 was setup in the first place. That act and its current resultant effect is now making some of us sound/look as if we don't care about HR as much as others, which obviously in not the case. I for one care about HR but not without having appropriate scope of understanding/implementation in an environment like that of ICANN. In my county politicians accused of corrupt practice gets remanded in prison awaiting trial but during the period lawyers of same politician file violation of HR law suit. It becomes difficult for a typical citizen like me to find reason on such HR for an individual that has denied many citizen right to livelihood by embezzling public funds. So my point is that we need to carefully address human rights issues within ICANN, otherwise it could cause more problems than we thought/think we are solving. Regards
Aarti Bhavana | Research Fellow Centre for Communication Governance | National Law University, Delhi
| Sector-14, Dwarka, New Delhi - 110078 | Cell: (+91) 965-464-6846 | Fax: (+91) 11-280-34256 | www.ccgdelhi.org . www.ccgtlr.org |
On 22 January 2016 at 13:06, Dr Eberhard W Lisse <el@lisse.na> wrote:
And ICANN deals with entities in virtually every country in the world, so Universal Human Rights should cover it...
el
On 2016-01-22 09:19, Nigel Roberts wrote:
Holly
This clearly shows the source of the confusion. The laws you quote, are domestic US laws on specific issues (some of which do act to protect human rights)
Domestic legal obligation obviouls do not need to be stated or quoted in the ByLaws, since they apply as a matter of domestic law.
But none of the rights in the UDHR apply to ICANN as a private company, such as the right to a fair hearing, the right to property etc.
As a private company, there is no obligation on ICANN, for example, to ensure fair hearing of parties affected by its decisions. [...] -- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/
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Hi Seun, No, I was referring to the ICANN bylaws. There is no formal commitment to respect HR in the ICANN bylaws, and given the HR implications of ICANN policies, it's essential to at least have this explicit commitment. As I mentioned previously, this commitment sets us up for further discussion in WS2. While it would have been ideal to have the FOI as well right now, the next best alternative is to at least have the commitment in place while we work out the details of the FOI and how to bind ICANN to specific instruments. As Kavouss said, these details are to be discussed in WS2. I'm not sure what exactly you meant by your point on corrupt politicians. :) But I do support the need to put down a commitment on HR in WS1. And with the redline language proposed, the risk of a premature IRP is also eliminated. Best, Aarti Aarti Bhavana | Research Fellow Centre for Communication Governance | National Law University, Delhi | Sector-14, Dwarka, New Delhi - 110078 | Cell: (+91) 965-464-6846 | Fax: (+91) 11-280-34256 | www.ccgdelhi.org . www.ccgtlr.org <http://www.ccgdelhi.org/> | On 22 January 2016 at 14:07, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
On 22 Jan 2016 8:56 a.m., "Aarti Bhavana" <aarti.bhavana@nludelhi.ac.in> wrote:
CCWG intends to at least have this commitment in place in WS1, since it isn't explicitly stated anywhere.
SO: I assume the "anywhere" referred to here implies other non-icann organisations that have such interests in human right. As to the intent of WS1, I am not sure what you stated above is the intent, especially if "respect" implies a binding requirement.
The framework of interpretation, to be developed in WS2, will make clear how we go about the implementation. In the mean time, ICANN's obligations to obey domestic law (applicable law) continues, unchanged.
SO: Isn't the lack of framework an important reason why we should not get any HR commitment from ICANN other than the commitment to work with the community to ensure that the framework is developed in WS2.
It's interesting how this HR topic has stylishly become a major topic in WS1, perhaps it was a mistake that WP4 was setup in the first place. That act and its current resultant effect is now making some of us sound/look as if we don't care about HR as much as others, which obviously in not the case. I for one care about HR but not without having appropriate scope of understanding/implementation in an environment like that of ICANN.
In my county politicians accused of corrupt practice gets remanded in prison awaiting trial but during the period lawyers of same politician file violation of HR law suit. It becomes difficult for a typical citizen like me to find reason on such HR for an individual that has denied many citizen right to livelihood by embezzling public funds. So my point is that we need to carefully address human rights issues within ICANN, otherwise it could cause more problems than we thought/think we are solving.
Regards
Aarti Bhavana | Research Fellow Centre for Communication Governance | National Law University, Delhi
| Sector-14, Dwarka, New Delhi - 110078 | Cell: (+91) 965-464-6846 | Fax: (+91) 11-280-34256 | www.ccgdelhi.org . www.ccgtlr.org |
On 22 January 2016 at 13:06, Dr Eberhard W Lisse <el@lisse.na> wrote:
And ICANN deals with entities in virtually every country in the world, so Universal Human Rights should cover it...
el
On 2016-01-22 09:19, Nigel Roberts wrote:
Holly
This clearly shows the source of the confusion. The laws you quote, are domestic US laws on specific issues (some of which do act to protect human rights)
Domestic legal obligation obviouls do not need to be stated or quoted in the ByLaws, since they apply as a matter of domestic law.
But none of the rights in the UDHR apply to ICANN as a private company, such as the right to a fair hearing, the right to property etc.
As a private company, there is no obligation on ICANN, for example, to ensure fair hearing of parties affected by its decisions. [...] -- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/
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Nigel, It seems like you want ICANN to act as if it were a government. I think that's beyond even the most aggressive interpretation that has been espoused of what we are trying to do here. If nothing else, it shows how far we are from a common understanding of the intent and effect of the Human Rights bylaw. Greg On Friday, January 22, 2016, Nigel Roberts <nigel@channelisles.net> wrote:
Holly
This clearly shows the source of the confusion. The laws you quote, are domestic US laws on specific issues (some of which do act to protect human rights)
Domestic legal obligation obviouls do not need to be stated or quoted in the ByLaws, since they apply as a matter of domestic law.
But none of the rights in the UDHR apply to ICANN as a private company, such as the right to a fair hearing, the right to property etc.
As a private company, there is no obligation on ICANN, for example, to ensure fair hearing of parties affected by its decisions.
On 22/01/16 01:35, Gregory, Holly wrote:
Just to clarify, laws that prohibit child labor, limit the hours that employees may be required to work without receiving over-time pay, require employers to refrain from limiting the ability of employees to freely associate for the purpose of pursuing unionization, protect against discrimination on the basis of race, gender, disability, or other criteria -- and there are more examples-- exist in many jurisdictions and are examples of "applicable laws" that protect human rights.
HOLLY J. GREGORY Partner and Co-Chair Global Corporate Governance & Executive Compensation Practice
Sidley Austin LLP +1 212 839 5853 holly.gregory@sidley.com
-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] On Behalf Of Nigel Roberts Sent: Thursday, January 21, 2016 2:13 AM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Report on Lawyers Call re Human Rights
So long as the 'applicable law' clause remains, ICANN will have NO legal obligations to respect human rights, post transition, on a literal construction.
Therefore the proposed addition, whilst harmless, is perfectly otiose.
There are many lawyers involved in proposing the 'applicable law' language.
I cannot believe you do not know that there is NO 'applicable law' once ICANN is no longer an instrumentality of the state.
Otherwise please give an example of a single legal provision on human rights that would fall under 'applicable law'.
Just one.
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No. I want ICANN to formally commit to respect the rights set out in the Universal Declaration of Human RIghts, and do so willingly and proactively. That's it. On 22/01/16 07:40, Greg Shatan wrote:
Nigel,
It seems like you want ICANN to act as if it were a government. I think that's beyond even the most aggressive interpretation that has been espoused of what we are trying to do here.
If nothing else, it shows how far we are from a common understanding of the intent and effect of the Human Rights bylaw.
Greg
On Friday, January 22, 2016, Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net>> wrote:
Holly
This clearly shows the source of the confusion. The laws you quote, are domestic US laws on specific issues (some of which do act to protect human rights)
Domestic legal obligation obviouls do not need to be stated or quoted in the ByLaws, since they apply as a matter of domestic law.
But none of the rights in the UDHR apply to ICANN as a private company, such as the right to a fair hearing, the right to property etc.
As a private company, there is no obligation on ICANN, for example, to ensure fair hearing of parties affected by its decisions.
On 22/01/16 01:35, Gregory, Holly wrote:
Just to clarify, laws that prohibit child labor, limit the hours that employees may be required to work without receiving over-time pay, require employers to refrain from limiting the ability of employees to freely associate for the purpose of pursuing unionization, protect against discrimination on the basis of race, gender, disability, or other criteria -- and there are more examples-- exist in many jurisdictions and are examples of "applicable laws" that protect human rights.
HOLLY J. GREGORY Partner and Co-Chair Global Corporate Governance & Executive Compensation Practice
Sidley Austin LLP +1 212 839 5853 holly.gregory@sidley.com
-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Nigel Roberts Sent: Thursday, January 21, 2016 2:13 AM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Report on Lawyers Call re Human Rights
So long as the 'applicable law' clause remains, ICANN will have NO legal obligations to respect human rights, post transition, on a literal construction.
Therefore the proposed addition, whilst harmless, is perfectly otiose.
There are many lawyers involved in proposing the 'applicable law' language.
I cannot believe you do not know that there is NO 'applicable law' once ICANN is no longer an instrumentality of the state.
Otherwise please give an example of a single legal provision on human rights that would fall under 'applicable law'.
Just one.
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I think this addresses a piece of the problem, and its good as far as it goes. However, it leaves most of the problem untouched. Aside from the IRP, how is ICANN supposed to determine if its conduct violates the Bylaw before the Framework of Interpretation is available? How is the community (or portions of the community) supposed to determine if its conduct violates the Bylaw before the FoI is available? What happens if new policies or programs or reviews are proposed based on the new HR Bylaw? What happens when the Framework of Interpretation comes on the scene after a year of ad hoc interpretation of the Bylaw? While there are not an unlimited number of variables, there were sufficient and significantly different possibilities discussed in WP4 and the CCWG that the work of WS2, and particularly the FoI, was commissioned. One answer is that the Human Rights bylaw simply should not be applied until its implementation is clarified by the FoI. But what if there is a truly egregious Human Rights violation being considered, where there is no disagreement in the community that it is indeed a violation, no matter what standard or interpretation is being used? (It's kind of hard to believe that ICANN would consider such an egregious violation, but nothing's impossible.) That would seem to be an easy case. But what if the ICANN Board believes and demonstrates to its own satisfaction that it is not heading into a Human Rights violation? Does the Board get the final word (at least until the FOI is in place)? What if some stakeholders see a Bylaws violation and others don't? How is this resolved? Does the Bylaw change how that difference would be resolved today? I suppose the answer could be that (1) we are reaffirming ICANN's commitment to Human Rights, not asking it to make new and different commitments to Human Rights, and (2) we are replacing the backstop of the US Government (as Avri points out) rather than creating a new and different Human Rights regime within ICANN. Both of the tenets indicate that what ICANN has been doing to date is consistent with its Human Rights obligations, and thus that extensive new work is not called for. At the same time, it maintains ICANN's Human Rights commitments as a bulwark against degradation of ICANN's [existing] Human Rights standards. These two tenets could be used to guide both WS2 and any interpretation of the Bylaw during the interim period before the FoI is in place. While these two tenets seem solidly consistent with our work to date, I don't believe they are stated as guidance in our Proposal. (If they are, that's great.) However, if these seem controversial to some, perhaps we need to wait until the FoI is in place and there is an agreement on how to interpret the Bylaw before we use it at all. I think this all feeds back into our discussion of Options "a", "b" and "c." Greg On Wed, Jan 20, 2016 at 9:59 PM, León Felipe Sánchez Ambía < leonfelipe@sanchez.mx> wrote:
Dear Holly, dear Rosemary,
Thank you very much for this update.
I believe the suggested amendment does address concerns on both sides but I would like to, of course, hear the feedback from the larger group.
All,
The suggested text would, in my view, guarantee that a commitment to respect human rights is in place as part of WS1 and would also provide the safeguard to avoid the abuse of the bylaw in the meantime the FOI is developed.
Please share your feedback at your earliest convenience so we can continue our way forward on this issue and hopefully finalize it in the next call we include the item as part of our agenda.
Thanks to our legal team and ICANN’s legal team for helping us understand the different concerns around the issue and proposing a way forward.
Saludos,
León
El 20/01/2016, a las 8:40 p.m., Gregory, Holly <holly.gregory@sidley.com> escribió:
Dear CCWG-ACCT Co-Chairs, Members, Participants and ICANN Staff,
We had a good discussion with ICANN lawyers (Sam and John) and with Kevin Espinola of Jones Day today as was certified to us regarding the Board’s understanding of the Human Rights language that we had proposed (set forth below). As we now understand the Board’s concern, while the language we proposed would not create any additional responsibilities beyond what currently exists in applicable law, providing a Human Rights commitment in the Bylaws opens the range of human rights topics to IRP challenge where Board action or inaction is perceived by someone to be out of line with human rights obligations under applicable law. Without benefit of the further definition around the scope of ICANN’s human rights obligations (the Framework for Interpretation) planned for Work Stream 2, in the interim there could be a slew of IRP challenges that have little actual merit from a legal perspective, placing the IRP panel (which may be comprised of persons without significant human rights law understanding) in a position of arbitrating a wide range of issues that may be driven by divergent interests that have little relevance to ICANN. This could result in a significant use of ICANN time and attention and scarce IRP resources with little actual added value in holding ICANN accountable. This is a legitimate concern. One solution that is in line with the discussion around options from the last CCWG call is to assure that the IRP process is not available until the Work Stream 2 effort to further articulate the human rights Framework for Interpretation is finished.
The CCWG may wish to consider including in the Bylaws something along the following lines (the language in *red* is new; the language in black is essentially what we had proposed originally) :
*Within its Mission and in its operations, ICANN will respect**internationally recognized Human Rights. This commitment shall not* *in any way create an obligation for ICANN, or any entity having a* *relationship with ICANN, to protect or enforce Human Rights beyond* *what may be required by applicable law. In particular, this does not* *create any additional obligation for ICANN to respond to or consider* *any complaint, request, or demand seeking the enforcement of* *Human Rights by ICANN. This Bylaw provision **is not a valid basis for, and shall not give rise to, any IRP process until a Framework of Interpretation is developed as part of “Work Stream 2” by the CCWG-Accountability or another Cross Community Working Group chartered for such purpose by one or more Supporting Organizations or Advisory Committees. I**CANN shall support the establishment and work of such a Group to facilitate development of the Framework of Interpretation as promptly as possible.*
Note that if the CCWG decides to move in this direction, Annex 12 (Work Stream 2) should include a reference to the commitment in the last sentence.
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 holly.gregory@sidley.com
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Thank you Holly. One concern I have with the suggested red language is that it presupposes that the FOI will allow for HR claims to be brought before IRP. That appears logical because if we have an HR commitment in bylaws then presumably an HR violation by ICANN would violate that bylaw. But in my personal opinion it seems possible that an FOI could conclude that HR violations are proper matters for courts alone to decide, especially given the bylaw language regarding “applicable law” (in my view an essential part of this bylaw). There are avenues open today to remedy HR violations in the courts. One HR, for example under UDHR, is the right to freedom from arbitrary interference with one’s privacy. There are plenty of privacy laws around the world and courts are experienced in applying them. So, for example, if someone wants to claim that WHOIS violates his or her privacy the door is open to make the claim in court, either where they live or where ICANN operates. Do we want an IRP panel to be developing HR law as a separate body of law? It doesn’t make sense to me - we will be standing up an IRP panel focused on DNS, not on HR. So I see possible merit in the Board’s concerns as summarized by you as potentially creating: “a slew of IRP challenges that have little actual merit from a legal perspective, placing the IRP panel (which may be comprised of persons without significant human rights law understanding) in a position of arbitrating a wide range of issues that may be driven by divergent interests that have little relevance to ICANN.” In my opinion, we should at least allow WS2 to consider these concerns fully, without appearing to lock in the result that IRP will hear these matters. Thank you David McAuley From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Gregory, Holly Sent: Wednesday, January 20, 2016 9:41 PM To: 'Mathieu Weill'; 'thomas@rickert.net'; 'León Felipe Sánchez Ambía'; 'accountability-cross-community@icann.org'; 'acct-staff@icann.org' Cc: 'ICANN@adlercolvin.com'; (john.jeffrey@icann.org); Sidley ICANN CCWG; Greeley, Amy E.; Grapsas, Rebecca Subject: [CCWG-ACCT] Report on Lawyers Call re Human Rights Dear CCWG-ACCT Co-Chairs, Members, Participants and ICANN Staff, We had a good discussion with ICANN lawyers (Sam and John) and with Kevin Espinola of Jones Day today as was certified to us regarding the Board’s understanding of the Human Rights language that we had proposed (set forth below). As we now understand the Board’s concern, while the language we proposed would not create any additional responsibilities beyond what currently exists in applicable law, providing a Human Rights commitment in the Bylaws opens the range of human rights topics to IRP challenge where Board action or inaction is perceived by someone to be out of line with human rights obligations under applicable law. Without benefit of the further definition around the scope of ICANN’s human rights obligations (the Framework for Interpretation) planned for Work Stream 2, in the interim there could be a slew of IRP challenges that have little actual merit from a legal perspective, placing the IRP panel (which may be comprised of persons without significant human rights law understanding) in a position of arbitrating a wide range of issues that may be driven by divergent interests that have little relevance to ICANN. This could result in a significant use of ICANN time and attention and scarce IRP resources with little actual added value in holding ICANN accountable. This is a legitimate concern. One solution that is in line with the discussion around options from the last CCWG call is to assure that the IRP process is not available until the Work Stream 2 effort to further articulate the human rights Framework for Interpretation is finished. The CCWG may wish to consider including in the Bylaws something along the following lines (the language in red is new; the language in black is essentially what we had proposed originally) : Within its Mission and in its operations, ICANN will respect internationally recognized Human Rights. This commitment shall not in any way create an obligation for ICANN, or any entity having a relationship with ICANN, to protect or enforce Human Rights beyond what may be required by applicable law. In particular, this does not create any additional obligation for ICANN to respond to or consider any complaint, request, or demand seeking the enforcement of Human Rights by ICANN. This Bylaw provision is not a valid basis for, and shall not give rise to, any IRP process until a Framework of Interpretation is developed as part of “Work Stream 2” by the CCWG-Accountability or another Cross Community Working Group chartered for such purpose by one or more Supporting Organizations or Advisory Committees. ICANN shall support the establishment and work of such a Group to facilitate development of the Framework of Interpretation as promptly as possible. Note that if the CCWG decides to move in this direction, Annex 12 (Work Stream 2) should include a reference to the commitment in the last sentence. 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 holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> **************************************************************************************************** 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. ****************************************************************************************************
I agree with the concern you state David, and believe that we could tweak the language to make clear that there is no predetermination that IRP will apply, should work stream 2 so decide. Sent with Good (www.good.com) ________________________________ From: McAuley, David Sent: Thursday, January 21, 2016 11:30:39 AM To: Gregory, Holly; 'Mathieu Weill'; 'thomas@rickert.net'; 'León Felipe Sánchez Ambía'; 'accountability-cross-community@icann.org'; 'acct-staff@icann.org' Cc: 'ICANN@adlercolvin.com'; (john.jeffrey@icann.org); Sidley ICANN CCWG; Greeley, Amy E.; Grapsas, Rebecca Subject: RE: Report on Lawyers Call re Human Rights Thank you Holly. One concern I have with the suggested red language is that it presupposes that the FOI will allow for HR claims to be brought before IRP. That appears logical because if we have an HR commitment in bylaws then presumably an HR violation by ICANN would violate that bylaw. But in my personal opinion it seems possible that an FOI could conclude that HR violations are proper matters for courts alone to decide, especially given the bylaw language regarding “applicable law” (in my view an essential part of this bylaw). There are avenues open today to remedy HR violations in the courts. One HR, for example under UDHR, is the right to freedom from arbitrary interference with one’s privacy. There are plenty of privacy laws around the world and courts are experienced in applying them. So, for example, if someone wants to claim that WHOIS violates his or her privacy the door is open to make the claim in court, either where they live or where ICANN operates. Do we want an IRP panel to be developing HR law as a separate body of law? It doesn’t make sense to me - we will be standing up an IRP panel focused on DNS, not on HR. So I see possible merit in the Board’s concerns as summarized by you as potentially creating: “a slew of IRP challenges that have little actual merit from a legal perspective, placing the IRP panel (which may be comprised of persons without significant human rights law understanding) in a position of arbitrating a wide range of issues that may be driven by divergent interests that have little relevance to ICANN.” In my opinion, we should at least allow WS2 to consider these concerns fully, without appearing to lock in the result that IRP will hear these matters. Thank you David McAuley From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Gregory, Holly Sent: Wednesday, January 20, 2016 9:41 PM To: 'Mathieu Weill'; 'thomas@rickert.net'; 'León Felipe Sánchez Ambía'; 'accountability-cross-community@icann.org'; 'acct-staff@icann.org' Cc: 'ICANN@adlercolvin.com'; (john.jeffrey@icann.org); Sidley ICANN CCWG; Greeley, Amy E.; Grapsas, Rebecca Subject: [CCWG-ACCT] Report on Lawyers Call re Human Rights Dear CCWG-ACCT Co-Chairs, Members, Participants and ICANN Staff, We had a good discussion with ICANN lawyers (Sam and John) and with Kevin Espinola of Jones Day today as was certified to us regarding the Board’s understanding of the Human Rights language that we had proposed (set forth below). As we now understand the Board’s concern, while the language we proposed would not create any additional responsibilities beyond what currently exists in applicable law, providing a Human Rights commitment in the Bylaws opens the range of human rights topics to IRP challenge where Board action or inaction is perceived by someone to be out of line with human rights obligations under applicable law. Without benefit of the further definition around the scope of ICANN’s human rights obligations (the Framework for Interpretation) planned for Work Stream 2, in the interim there could be a slew of IRP challenges that have little actual merit from a legal perspective, placing the IRP panel (which may be comprised of persons without significant human rights law understanding) in a position of arbitrating a wide range of issues that may be driven by divergent interests that have little relevance to ICANN. This could result in a significant use of ICANN time and attention and scarce IRP resources with little actual added value in holding ICANN accountable. This is a legitimate concern. One solution that is in line with the discussion around options from the last CCWG call is to assure that the IRP process is not available until the Work Stream 2 effort to further articulate the human rights Framework for Interpretation is finished. The CCWG may wish to consider including in the Bylaws something along the following lines (the language in red is new; the language in black is essentially what we had proposed originally) : Within its Mission and in its operations, ICANN will respect internationally recognized Human Rights. This commitment shall not in any way create an obligation for ICANN, or any entity having a relationship with ICANN, to protect or enforce Human Rights beyond what may be required by applicable law. In particular, this does not create any additional obligation for ICANN to respond to or consider any complaint, request, or demand seeking the enforcement of Human Rights by ICANN. This Bylaw provision is not a valid basis for, and shall not give rise to, any IRP process until a Framework of Interpretation is developed as part of “Work Stream 2” by the CCWG-Accountability or another Cross Community Working Group chartered for such purpose by one or more Supporting Organizations or Advisory Committees. ICANN shall support the establishment and work of such a Group to facilitate development of the Framework of Interpretation as promptly as possible. Note that if the CCWG decides to move in this direction, Annex 12 (Work Stream 2) should include a reference to the commitment in the last sentence. 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 holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> **************************************************************************************************** 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. ****************************************************************************************************
Thanks David: you put into words a number of things that have been seriously worrying me: very helpful! From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of McAuley, David Sent: 21 January 2016 17:31 To: Gregory, Holly <holly.gregory@sidley.com>; 'Mathieu Weill' <mathieu.weill@afnic.fr>; 'thomas@rickert.net' <thomas@rickert.net>; 'León Felipe Sánchez Ambía' <leonfelipe@sanchez.mx>; 'accountability-cross-community@icann.org' <accountability-cross-community@icann.org>; 'acct-staff@icann.org' <acct-staff@icann.org> Cc: Sidley ICANN CCWG <sidleyicannccwg@sidley.com>; Greeley, Amy E. <AGreeley@sidley.com>; Grapsas, Rebecca <rebecca.grapsas@sidley.com>; 'ICANN@adlercolvin.com' <ICANN@adlercolvin.com>; (john.jeffrey@icann.org) <john.jeffrey@icann.org> Subject: Re: [CCWG-ACCT] Report on Lawyers Call re Human Rights Thank you Holly. One concern I have with the suggested red language is that it presupposes that the FOI will allow for HR claims to be brought before IRP. That appears logical because if we have an HR commitment in bylaws then presumably an HR violation by ICANN would violate that bylaw. But in my personal opinion it seems possible that an FOI could conclude that HR violations are proper matters for courts alone to decide, especially given the bylaw language regarding “applicable law” (in my view an essential part of this bylaw). There are avenues open today to remedy HR violations in the courts. One HR, for example under UDHR, is the right to freedom from arbitrary interference with one’s privacy. There are plenty of privacy laws around the world and courts are experienced in applying them. So, for example, if someone wants to claim that WHOIS violates his or her privacy the door is open to make the claim in court, either where they live or where ICANN operates. Do we want an IRP panel to be developing HR law as a separate body of law? It doesn’t make sense to me - we will be standing up an IRP panel focused on DNS, not on HR. So I see possible merit in the Board’s concerns as summarized by you as potentially creating: “a slew of IRP challenges that have little actual merit from a legal perspective, placing the IRP panel (which may be comprised of persons without significant human rights law understanding) in a position of arbitrating a wide range of issues that may be driven by divergent interests that have little relevance to ICANN.” In my opinion, we should at least allow WS2 to consider these concerns fully, without appearing to lock in the result that IRP will hear these matters. Thank you David McAuley From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Gregory, Holly Sent: Wednesday, January 20, 2016 9:41 PM To: 'Mathieu Weill'; 'thomas@rickert.net'; 'León Felipe Sánchez Ambía'; 'accountability-cross-community@icann.org'; 'acct-staff@icann.org' Cc: 'ICANN@adlercolvin.com'; (john.jeffrey@icann.org<mailto:john.jeffrey@icann.org>); Sidley ICANN CCWG; Greeley, Amy E.; Grapsas, Rebecca Subject: [CCWG-ACCT] Report on Lawyers Call re Human Rights Dear CCWG-ACCT Co-Chairs, Members, Participants and ICANN Staff, We had a good discussion with ICANN lawyers (Sam and John) and with Kevin Espinola of Jones Day today as was certified to us regarding the Board’s understanding of the Human Rights language that we had proposed (set forth below). As we now understand the Board’s concern, while the language we proposed would not create any additional responsibilities beyond what currently exists in applicable law, providing a Human Rights commitment in the Bylaws opens the range of human rights topics to IRP challenge where Board action or inaction is perceived by someone to be out of line with human rights obligations under applicable law. Without benefit of the further definition around the scope of ICANN’s human rights obligations (the Framework for Interpretation) planned for Work Stream 2, in the interim there could be a slew of IRP challenges that have little actual merit from a legal perspective, placing the IRP panel (which may be comprised of persons without significant human rights law understanding) in a position of arbitrating a wide range of issues that may be driven by divergent interests that have little relevance to ICANN. This could result in a significant use of ICANN time and attention and scarce IRP resources with little actual added value in holding ICANN accountable. This is a legitimate concern. One solution that is in line with the discussion around options from the last CCWG call is to assure that the IRP process is not available until the Work Stream 2 effort to further articulate the human rights Framework for Interpretation is finished. The CCWG may wish to consider including in the Bylaws something along the following lines (the language in red is new; the language in black is essentially what we had proposed originally) : Within its Mission and in its operations, ICANN will respect internationally recognized Human Rights. This commitment shall not in any way create an obligation for ICANN, or any entity having a relationship with ICANN, to protect or enforce Human Rights beyond what may be required by applicable law. In particular, this does not create any additional obligation for ICANN to respond to or consider any complaint, request, or demand seeking the enforcement of Human Rights by ICANN. This Bylaw provision is not a valid basis for, and shall not give rise to, any IRP process until a Framework of Interpretation is developed as part of “Work Stream 2” by the CCWG-Accountability or another Cross Community Working Group chartered for such purpose by one or more Supporting Organizations or Advisory Committees. ICANN shall support the establishment and work of such a Group to facilitate development of the Framework of Interpretation as promptly as possible. Note that if the CCWG decides to move in this direction, Annex 12 (Work Stream 2) should include a reference to the commitment in the last sentence. 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 holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> **************************************************************************************************** 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. ****************************************************************************************************
I just want to point out that concern for Human Rights goes beyond the enforcement issue. In fact in my mind that has always been an ancillary issue. My prime concern with including respect for human rights was originaly, and remains, is the possibility of including considerations of human rights, including freedom of expression and for an open Internet, in discussion of policy development. At this point once the transition occurs, assuming it does at some point, people will be able to claim that as a private company human rights do not concern us. and therefore are out of scope in policy development. I think it important we avoid that, and the by laws statement of respect for human rights is the stake in the ground that allows human rights to remain relevant to ICANN. It is this notion of support for human rights that I think we lose when we put all of our concern on IRP and the courts. avri On 21-Jan-16 13:28, Martin Boyle wrote:
Thanks David: you put into words a number of things that have been seriously worrying me: very helpful!
*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *McAuley, David *Sent:* 21 January 2016 17:31 *To:* Gregory, Holly <holly.gregory@sidley.com>; 'Mathieu Weill' <mathieu.weill@afnic.fr>; 'thomas@rickert.net' <thomas@rickert.net>; 'León Felipe Sánchez Ambía' <leonfelipe@sanchez.mx>; 'accountability-cross-community@icann.org' <accountability-cross-community@icann.org>; 'acct-staff@icann.org' <acct-staff@icann.org> *Cc:* Sidley ICANN CCWG <sidleyicannccwg@sidley.com>; Greeley, Amy E. <AGreeley@sidley.com>; Grapsas, Rebecca <rebecca.grapsas@sidley.com>; 'ICANN@adlercolvin.com' <ICANN@adlercolvin.com>; (john.jeffrey@icann.org) <john.jeffrey@icann.org> *Subject:* Re: [CCWG-ACCT] Report on Lawyers Call re Human Rights
Thank you Holly.
One concern I have with the suggested red language is that it presupposes that the FOI will allow for HR claims to be brought before IRP. That appears logical because if we have an HR commitment in bylaws then presumably an HR violation by ICANN would violate that bylaw.
But in my personal opinion it seems possible that an FOI could conclude that HR violations are proper matters for courts alone to decide, especially given the bylaw language regarding “applicable law” (in my view an essential part of this bylaw).
There are avenues open today to remedy HR violations in the courts. One HR, for example under UDHR, is the right to freedom from arbitrary interference with one’s privacy. There are plenty of privacy laws around the world and courts are experienced in applying them. So, for example, if someone wants to claim that WHOIS violates his or her privacy the door is open to make the claim in court, either where they live or where ICANN operates.
Do we want an IRP panel to be developing HR law as a separate body of law? It doesn’t make sense to me - we will be standing up an IRP panel focused on DNS, not on HR.
So I see possible merit in the Board’s concerns as summarized by you as potentially creating:
“a slew of IRP challenges that have little actual merit from a legal perspective, placing the IRP panel (which may be comprised of persons without significant human rights law understanding) in a position of arbitrating a wide range of issues that may be driven by divergent interests that have little relevance to ICANN.”
In my opinion, we should at least allow WS2 to consider these concerns fully, without appearing to lock in the result that IRP will hear these matters.
Thank you
David McAuley
*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Gregory, Holly *Sent:* Wednesday, January 20, 2016 9:41 PM *To:* 'Mathieu Weill'; 'thomas@rickert.net'; 'León Felipe Sánchez Ambía'; 'accountability-cross-community@icann.org'; 'acct-staff@icann.org' *Cc:* 'ICANN@adlercolvin.com'; (john.jeffrey@icann.org <mailto:john.jeffrey@icann.org>); Sidley ICANN CCWG; Greeley, Amy E.; Grapsas, Rebecca *Subject:* [CCWG-ACCT] Report on Lawyers Call re Human Rights
Dear CCWG-ACCT Co-Chairs, Members, Participants and ICANN Staff,
We had a good discussion with ICANN lawyers (Sam and John) and with Kevin Espinola of Jones Day today as was certified to us regarding the Board’s understanding of the Human Rights language that we had proposed (set forth below). As we now understand the Board’s concern, while the language we proposed would not create any additional responsibilities beyond what currently exists in applicable law, providing a Human Rights commitment in the Bylaws opens the range of human rights topics to IRP challenge where Board action or inaction is perceived by someone to be out of line with human rights obligations under applicable law. Without benefit of the further definition around the scope of ICANN’s human rights obligations (the Framework for Interpretation) planned for Work Stream 2, in the interim there could be a slew of IRP challenges that have little actual merit from a legal perspective, placing the IRP panel (which may be comprised of persons without significant human rights law understanding) in a position of arbitrating a wide range of issues that may be driven by divergent interests that have little relevance to ICANN. This could result in a significant use of ICANN time and attention and scarce IRP resources with little actual added value in holding ICANN accountable.
This is a legitimate concern. One solution that is in line with the discussion around options from the last CCWG call is to assure that the IRP process is not available until the Work Stream 2 effort to further articulate the human rights Framework for Interpretation is finished.
The CCWG may wish to consider including in the Bylaws something along the following lines (the language in *red* is new; the language in black is essentially what we had proposed originally) :
/Within its Mission and in its operations, ICANN will respect//internationally recognized Human Rights. This commitment shall not/ /in any way create an obligation for ICANN, or any entity having a/ /relationship with ICANN, to protect or enforce Human Rights beyond/ /what may be required by applicable law. In particular, this does not/ /create any additional obligation for ICANN to respond to or consider/ /any complaint, request, or demand seeking the enforcement of/ /Human Rights by ICANN. *This Bylaw provision */*is not a valid basis for, and shall not give rise to, any IRP/process/ /until a Framework of Interpretation is developed as part of “Work Stream 2” by the CCWG-Accountability or another Cross Community Working Group chartered for such/ /purpose by one or more Supporting Organizations or Advisory Committees. ICANN shall support the establishment and work of such a Group to facilitate development of the Framework of Interpretation as promptly as possible./*
* *
Note that if the CCWG decides to move in this direction, Annex 12 (Work Stream 2) should include a reference to the commitment in the last sentence.
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 holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>
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Hi, On Thu, Jan 21, 2016 at 03:02:12PM -0500, Avri Doria wrote:
discussion of policy development. At this point once the transition occurs, assuming it does at some point, people will be able to claim that as a private company human rights do not concern us. and therefore are out of scope in policy development.
I hadn't understood that angle before, so thanks for stating it. But I don't see how if follows. It seems to me that the whole point of the tussle of policy development is to consider a wide variety of considerations and input. It seems to me that the source of that lies in the community, and therefore it is the community, and not the corporation, that needs the commitment to human rights. Why isn't it better that the human rights considerations be part of the constraint on some or all of the various constituency groups, rather than part of the ICANN bylaws? (In case it's not clear, I don't intend that as a rhetorical question.) Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com
Avri and Andrew's emails raise a question about the fundamental intention of this Bylaw, both generally and specificallyas it relates to policy development: Is the intent to maintain ICANN's commitment to Human Rights after the transitionand provide a bulwark against any claims (well founded or otherwise) that the transition empowers or allows ICANN to walk away from its commitment to Human Rights? Or is the intent to create new and different commitments to Human Rights that do not currently exist? Specifically, is the intent to create a basis for new and different Human Rights considerations in policy development (and for that matter, AC advice) beyond what now exists? Greg On Thu, Jan 21, 2016 at 6:11 PM, Andrew Sullivan <ajs@anvilwalrusden.com> wrote:
Hi,
On Thu, Jan 21, 2016 at 03:02:12PM -0500, Avri Doria wrote:
discussion of policy development. At this point once the transition occurs, assuming it does at some point, people will be able to claim that as a private company human rights do not concern us. and therefore are out of scope in policy development.
I hadn't understood that angle before, so thanks for stating it. But I don't see how if follows.
It seems to me that the whole point of the tussle of policy development is to consider a wide variety of considerations and input. It seems to me that the source of that lies in the community, and therefore it is the community, and not the corporation, that needs the commitment to human rights. Why isn't it better that the human rights considerations be part of the constraint on some or all of the various constituency groups, rather than part of the ICANN bylaws? (In case it's not clear, I don't intend that as a rhetorical question.)
Best regards,
A
-- Andrew Sullivan ajs@anvilwalrusden.com _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
On 21-Jan-16 18:11, Andrew Sullivan wrote:
Why isn't it better that the human rights considerations be part of the constraint on some or all of the various constituency groups, rather than part of the ICANN bylaws? (In case it's not clear, I don't intend that as a rhetorical question.)
Good thing you included a note about this not being a rhetorical claim against Human Rights commitment at ICANN, but a question. I would have reacted to it as rhetoric and moved on. So thanks In one sense you may have a point, why do we need any core value and commitments in the ByLaws. For example why do we need core values dealing with market mechanisms and a competitive environment? Shouldn't the stakeholders be able to bring that concern as part of the regular tussle? Why do we need any bylaws beyond the purely administrative? All of the core value fluff could be left subject to the tussle of participants. Yet we seem to have a continuing sense that reflecting core values and commitments in the bylaws in important. So why is a commitment to rights such a hard commitment for ICANN to make? I do not accept that it just a fear of litigation tht has been shown to be unfounded. I do not presume to understand this ICANN aversion to freedom of speech and an open Internet with free flow of information, I can just be sure that nobody fights such a simple statement without some intent. NTIA requires that we show how we are going to maintain the openness of the Internet including the freedom of expression and the free flow of information. Without the Human Rights commitment we have nothing that show that. We do not have a core value related to the open Internet, freedom of expression and the free flow of information, nor a higher level commitment that would include these concerns. Today that commitment is met by having a public review by the NTIA every few years to ascertain whether ICANN is keeping a commitment to freedom of speech/expression, and can remove the contract to another IANA Function Operator if we fail to do that or to live up to any of our other obligations. As a contractor to the government, ICANN is subject to the government's fulfilling its obligation for human rights, and if we fail we lose the contract. After transition there is no such obligation or check and blances, neither in law nor in our current bylaws. Therefore, the need for a commitment. Some argue that we do not need a bylaw for a commitment. I beg to disagree. Without a bylaw or a contract, ICANN is not bound to any commitment. history shows us that. They are just words that can be ignored and postponed for as long as the corporation and its Board wish. If we allow IANA to transition away from the US government without a commitment to Human Rights, especially freedom of expression and the free flow of information we are just as likely to forget about such values in the hurly-burly of day to day business wheeling and dealing. We can argue on whether NTIA and Congress could accept a transition that does not guarantee freedom of speech/expression or the maintenance of a open Internet or the free flow of information. Perhaps we should test with congress about how they would feel if we were to try and escape that commitment by refusing to put such the commitment to repsect human rights into the bylaws. Personally I do not believe Congress will accept anything that abandons the value of an open Internet, freedom of speech/expression and the free flow of information. As a citizen, I would certainly ask my congressional representatives to thwart such a move. As a citizen I would prefer we continue to work past this election until we can guarantee basic respect for human rights over abandoning the commitment we currently have by virtue of the contract. It is better to continue being subject to a government contract that can be removed if we start to infringe these rights. I personally trust NTIA more than I trust ICANN without a commitment to human rights. If we need a FOI in order to understand what it means to respect human rights when making policy then we had better get that done before we try to move on. I do not think the FOI is necessary, but if others do, then we better start working on it. So no, it is not better to leave human rights up to the overwhelming press of financial interests that rule ICANN without any method of redress. And without a bylaw, there will be no discussion of human rights impact on the work we do. It would be out of scope. avri --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
-----Original Message----- NTIA requires that we show how we are going to maintain the openness of the Internet including the freedom of expression and the free flow of information. Without the Human Rights commitment we have nothing that show that.
Bingo. She's right. What else needs to be said about this? --MM
Hi Avri, While appreciating your typically well-considered point of view, I disagree with part of what you said. I personally think the concern expressed by the board over HR is well-founded and so take respectful issue with some of those comment below. You said: "I do not presume to understand this ICANN aversion to freedom of speech and an open Internet with free flow of information, I can just be sure that nobody fights such a simple statement without some intent." Two concerns: First, ICANN hasn't been averse to an open Internet with free-flowing information insofar as I have seen. And we have no reason to fear that, IMO. In fact CCWG intends to clarify this as stated in the third draft proposal at paragraph 214 (in a Fundamental Bylaw, no less): "Clarify that ICANN's Mission is limited to coordinating the development and implementation of policies that are designed to ensure the stable and secure operation of the Domain Name System and are reasonably necessary to facilitate its openness, interoperability, resilience, and/or stability." An open Internet is open to free expression - and that is ICANN's role. Second, as to ". nobody fights such a simple statement ." Freedom of speech is a simple statement but not a simple concept. As just one example, over the past few days I have been reading a debate on the IRTF list about whether or not a DDoS attack might in some circumstances be an expression of free speech. It seems absurd and the debate seems largely settling on that conclusion but debate is nonetheless made - how could we even risk such an argument to come before IRP? That's why some of us want "applicable law" to be explicit as it invokes a body of law developed by courts and countries (not just in US) who are better equipped to grapple with these concepts. I think we can all envision the classic argument over where one's right of free expression ends vis-à-vis someone else's right to privacy - it could get complicated. Why should we risk embroiling ICANN in these disputes in an IRP - the panel is not designed for that, IMO, not to mention that absent a statement about "applicable law" we would be asking IRP panelists to develop new law, as they deem fit, applicable only to ICANN. You also said: "And without a bylaw, there will be no discussion of human rights impact on the work we do. It would be out of scope." I just don't see it - there will be a fundamental bylaw as noted above and we will get to an HR FOI in WS2. David McAuley -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Avri Doria Sent: Friday, January 22, 2016 9:29 AM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Report on Lawyers Call re Human Rights On 21-Jan-16 18:11, Andrew Sullivan wrote:
Why isn't it better that the human rights considerations be part of the constraint on some or all of the various constituency groups, rather than part of the ICANN bylaws? (In case it's not clear, I don't intend that as a rhetorical question.)
Good thing you included a note about this not being a rhetorical claim against Human Rights commitment at ICANN, but a question. I would have reacted to it as rhetoric and moved on. So thanks In one sense you may have a point, why do we need any core value and commitments in the ByLaws. For example why do we need core values dealing with market mechanisms and a competitive environment? Shouldn't the stakeholders be able to bring that concern as part of the regular tussle? Why do we need any bylaws beyond the purely administrative? All of the core value fluff could be left subject to the tussle of participants. Yet we seem to have a continuing sense that reflecting core values and commitments in the bylaws in important. So why is a commitment to rights such a hard commitment for ICANN to make? I do not accept that it just a fear of litigation tht has been shown to be unfounded. I do not presume to understand this ICANN aversion to freedom of speech and an open Internet with free flow of information, I can just be sure that nobody fights such a simple statement without some intent. NTIA requires that we show how we are going to maintain the openness of the Internet including the freedom of expression and the free flow of information. Without the Human Rights commitment we have nothing that show that. We do not have a core value related to the open Internet, freedom of expression and the free flow of information, nor a higher level commitment that would include these concerns. Today that commitment is met by having a public review by the NTIA every few years to ascertain whether ICANN is keeping a commitment to freedom of speech/expression, and can remove the contract to another IANA Function Operator if we fail to do that or to live up to any of our other obligations. As a contractor to the government, ICANN is subject to the government's fulfilling its obligation for human rights, and if we fail we lose the contract. After transition there is no such obligation or check and blances, neither in law nor in our current bylaws. Therefore, the need for a commitment. Some argue that we do not need a bylaw for a commitment. I beg to disagree. Without a bylaw or a contract, ICANN is not bound to any commitment. history shows us that. They are just words that can be ignored and postponed for as long as the corporation and its Board wish. If we allow IANA to transition away from the US government without a commitment to Human Rights, especially freedom of expression and the free flow of information we are just as likely to forget about such values in the hurly-burly of day to day business wheeling and dealing. We can argue on whether NTIA and Congress could accept a transition that does not guarantee freedom of speech/expression or the maintenance of a open Internet or the free flow of information. Perhaps we should test with congress about how they would feel if we were to try and escape that commitment by refusing to put such the commitment to repsect human rights into the bylaws. Personally I do not believe Congress will accept anything that abandons the value of an open Internet, freedom of speech/expression and the free flow of information. As a citizen, I would certainly ask my congressional representatives to thwart such a move. As a citizen I would prefer we continue to work past this election until we can guarantee basic respect for human rights over abandoning the commitment we currently have by virtue of the contract. It is better to continue being subject to a government contract that can be removed if we start to infringe these rights. I personally trust NTIA more than I trust ICANN without a commitment to human rights. If we need a FOI in order to understand what it means to respect human rights when making policy then we had better get that done before we try to move on. I do not think the FOI is necessary, but if others do, then we better start working on it. So no, it is not better to leave human rights up to the overwhelming press of financial interests that rule ICANN without any method of redress. And without a bylaw, there will be no discussion of human rights impact on the work we do. It would be out of scope. avri --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-----Original Message----- It seems to me that the whole point of the tussle of policy development is to consider a wide variety of considerations and input. It seems to me that the source of that lies in the community, and therefore it is the community, and not the corporation, that needs the commitment to human rights.
The answer to this is simple: the only way to bind "the community" as a whole to respect HR is to require the corporation that approves and implements its policy making to respect HR. --MM
On 22 Jan 2016 5:29 p.m., "Mueller, Milton L" <milton@gatech.edu> wrote:
-----Original Message----- It seems to me that the whole point of the tussle of policy development
is to
consider a wide variety of considerations and input. It seems to me that the source of that lies in the community, and therefore it is the community, and not the corporation, that needs the commitment to human rights.
The answer to this is simple: the only way to bind "the community" as a whole to respect HR is to require the corporation that approves and implements its policy making to respect HR.
SO: Very strong but I hope this is not true considering that the corporation (ICANN) serves not just the names but the numbers and protocol communities. Regards
--MM _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear CCWG-ACCT Co-Chairs, Members, Participants and ICANN Staff, Attached please find comments from Sidley and Adler on the Final Draft of Annex 3 (Standard Bylaws, Fundamental Bylaws and Articles of Incorporation). Please note that we will give it one more review when we review the entire draft of the CCWG Proposal in close to final form. 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 holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> **************************************************************************************************** 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. ****************************************************************************************************
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 Governmental 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 holly.gregory@sidley.com<mailto:holly.gregory@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. ****************************************************************************************************
Dear CCWG ACCT Co-Chairs, Members, Participants and ICANN Staff, Just a reminder that in addition to the high level concerns and detailed edits we have noted to date, it will be important in the final review to use consistent terminology for the concepts and entities discussed and ensure that the glossary is up to date. This will be especially important as to how “Sole Designator”, “Empowered Community” and “community” are used. Also note that when we begin drafting Bylaws it will be important to come up with the actual name that will be used for the Sole Designator formed as an unincorporated association. 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 holly.gregory@sidley.com<mailto:holly.gregory@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. ****************************************************************************************************
Dear CCWG ACCT Co-Chairs, Members, Participants and ICANN Staff, Just a reminder that in addition to the high level concerns and detailed edits we have noted to date, it will be important in the final review to use consistent terminology for the concepts and entities discussed and ensure that the glossary is up to date. This will be especially important as to how “Sole Designator”, “Empowered Community” and “community” are used. Also note that when we begin drafting Bylaws it will be important to come up with the actual name that will be used for the Sole Designator formed as an unincorporated association. 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 holly.gregory@sidley.com<mailto:holly.gregory@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. ****************************************************************************************************
URGEBT Dear Holly, I raised an important questions while sent to Co/Chairs but in fact addressed to you. That was relating to Board's comments indicating that inspection power is limited to the "Community" and not to " Sole Designator" I sought your legal view on that , This is the second occasions that Board made such statement.Your reply should kindly include, among others, the differences, if any and the scope of responsibilities of each as per Californian Law. This is an important issue for our next week meetings Kavousd Sent from my iPhone
On 24 Jan 2016, at 15:15, Gregory, Holly <holly.gregory@sidley.com> wrote:
Dear CCWG ACCT Co-Chairs, Members, Participants and ICANN Staff,
Just a reminder that in addition to the high level concerns and detailed edits we have noted to date, it will be important in the final review to use consistent terminology for the concepts and entities discussed and ensure that the glossary is up to date. This will be especially important as to how “Sole Designator”, “Empowered Community” and “community” are used.
Also note that when we begin drafting Bylaws it will be important to come up with the actual name that will be used for the Sole Designator formed as an unincorporated association.
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 holly.gregory@sidley.com SIDLEY AUSTIN LLP
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Hi Kavouss, We are happy to address this question but need it to be certified by the co-chairs first as per the agreed process. Kind regards, Holly Sent with Good (www.good.com) ________________________________ From: Kavouss Arasteh Sent: Sunday, January 24, 2016 08:38:26 AM To: Gregory, Holly Cc: Mathieu Weill; thomas@rickert.net; León Felipe Sánchez Ambía; acct-staff@icann.org; accountability-cross-community@icann.org; Sidley ICANN CCWG; Greeley, Amy E.; Grapsas, Rebecca; ICANN@adlercolvin.com Subject: Re: [CCWG-ACCT] Global Issue re Consistency of Terminology URGEBT Dear Holly, I raised an important questions while sent to Co/Chairs but in fact addressed to you. That was relating to Board's comments indicating that inspection power is limited to the "Community" and not to " Sole Designator" I sought your legal view on that , This is the second occasions that Board made such statement.Your reply should kindly include, among others, the differences, if any and the scope of responsibilities of each as per Californian Law. This is an important issue for our next week meetings Kavousd Sent from my iPhone On 24 Jan 2016, at 15:15, Gregory, Holly <holly.gregory@sidley.com<mailto:holly.gregory@sidley.com>> wrote: Dear CCWG ACCT Co-Chairs, Members, Participants and ICANN Staff, Just a reminder that in addition to the high level concerns and detailed edits we have noted to date, it will be important in the final review to use consistent terminology for the concepts and entities discussed and ensure that the glossary is up to date. This will be especially important as to how “Sole Designator”, “Empowered Community” and “community” are used. Also note that when we begin drafting Bylaws it will be important to come up with the actual name that will be used for the Sole Designator formed as an unincorporated association. 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 holly.gregory@sidley.com<mailto:holly.gregory@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<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMFaQ&c=Od00qP2XTg0tXf_H69-T2w&r=AKn_gzAS4ANpCEqx2GjPwjUkqYPHaN7m0NQNyfQXAgk&m=BPASAAKtMqp0yYdEVCZY99_ZFaMVKX0fAzItQL_XwUU&s=iohoLPyGUqAucj38OppEnI0lsIA_LZoNQ-dtN3dM5Ds&e=>
Dear Holly, Yes but I have noted that you were replying to some questions directly to the persons raised it; I knew the differences but wanted that the statement made by Bruce be confirmed. Regards Kavouss 2016-01-24 16:35 GMT+01:00 Gregory, Holly <holly.gregory@sidley.com>:
Hi Kavouss, We are happy to address this question but need it to be certified by the co-chairs first as per the agreed process. Kind regards, Holly
Sent with Good (www.good.com)
------------------------------ *From:* Kavouss Arasteh *Sent:* Sunday, January 24, 2016 08:38:26 AM *To:* Gregory, Holly *Cc:* Mathieu Weill; thomas@rickert.net; León Felipe Sánchez Ambía; acct-staff@icann.org; accountability-cross-community@icann.org; Sidley ICANN CCWG; Greeley, Amy E.; Grapsas, Rebecca; ICANN@adlercolvin.com *Subject:* Re: [CCWG-ACCT] Global Issue re Consistency of Terminology
URGEBT Dear Holly, I raised an important questions while sent to Co/Chairs but in fact addressed to you. That was relating to Board's comments indicating that inspection power is limited to the "Community" and not to " Sole Designator" I sought your legal view on that , This is the second occasions that Board made such statement.Your reply should kindly include, among others, the differences, if any and the scope of responsibilities of each as per Californian Law. This is an important issue for our next week meetings Kavousd
Sent from my iPhone
On 24 Jan 2016, at 15:15, Gregory, Holly <holly.gregory@sidley.com> wrote:
Dear CCWG ACCT Co-Chairs, Members, Participants and ICANN Staff,
Just a reminder that in addition to the high level concerns and detailed edits we have noted to date, it will be important in the final review to use consistent terminology for the concepts and entities discussed and ensure that the glossary is up to date. This will be especially important as to how “Sole Designator”, “Empowered Community” and “community” are used.
Also note that when we begin drafting Bylaws it will be important to come up with the actual name that will be used for the Sole Designator formed as an unincorporated association.
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 holly.gregory@sidley.com
[image: http://www.sidley.com/files/upload/signatures/SA-autosig.png] <http://www.sidley.com/> *SIDLEY AUSTIN LLP*
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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 <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> Link to my PGP Key <http://www.rsaconference.com/events/us16?utm_source=signature&utm_medium=ema...> From: Gregory, Holly [mailto:holly.gregory@sidley.com] Sent: Sunday, January 24, 2016 7:24 AM To: 'Mathieu Weill' <mathieu.weill@afnic.fr>; 'thomas@rickert.net' <thomas@rickert.net>; 'León Felipe Sánchez Ambía' <leonfelipe@sanchez.mx>; 'accountability-cross-community@icann.org' <accountability-cross-community@icann.org>; 'acct-staff@icann.org' <acct-staff@icann.org> Cc: Sidley ICANN CCWG <sidleyicannccwg@sidley.com>; Greeley, Amy E. <AGreeley@sidley.com>; Grapsas, Rebecca <rebecca.grapsas@sidley.com>; 'ICANN@adlercolvin.com' <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 Governmental 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 holly.gregory@sidley.com <mailto:holly.gregory@sidley.com> <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. ****************************************************************************************************
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> 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 <paul.rosenzweigesq@redbranchconsulting.com>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
Skype: paul.rosenzweig1066
Link to my PGP Key <http://www.redbranchconsulting.com/index.php?option=com_content&view=article...>
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*From:* Gregory, Holly [mailto:holly.gregory@sidley.com] *Sent:* Sunday, January 24, 2016 7:24 AM *To:* 'Mathieu Weill' <mathieu.weill@afnic.fr>; 'thomas@rickert.net' < thomas@rickert.net>; 'León Felipe Sánchez Ambía' <leonfelipe@sanchez.mx>; 'accountability-cross-community@icann.org' < accountability-cross-community@icann.org>; 'acct-staff@icann.org' < acct-staff@icann.org> *Cc:* Sidley ICANN CCWG <sidleyicannccwg@sidley.com>; Greeley, Amy E. < AGreeley@sidley.com>; Grapsas, Rebecca <rebecca.grapsas@sidley.com>; ' ICANN@adlercolvin.com' <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 holly.gregory@sidley.com
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Paul and Greg are entirely correct that there is no current requirement that GAC advice "must" be followed under the current interpretation, and we need to be careful that we do not change this important principle. And I don’t believe the US Congress or NTIA will accept an “accountability” proposal with such a requirement. We’ve strayed so far beyond organizational accountability / good governance and into the realm of entirely reformulating ICANN in a way that significantly alters and empowers governments over ICANN’s operations that we seriously risk killing the success of the entire proposal and all of other our other efforts to make ICANN accountable. Robin
On Jan 24, 2016, at 1:32 PM, Greg Shatan <gregshatanipc@gmail.com> 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...> <image001.png> <http://www.rsaconference.com/events/us16?utm_source=signature&utm_medium=ema...>
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 Governmental 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>
<image002.jpg> <http://www.sidley.com/> SIDLEY AUSTIN LLP
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Very much agree with Paul and Greg. Not at all how I understand duly take into account nor how I understood our discussions assumed it would work. ________________________________ Brett Schaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097 heritage.org<http://heritage.org/> __________ On Jan 24, 2016, at 4:34 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> 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...> <image001.png><http://www.rsaconference.com/events/us16?utm_source=signature&utm_medium=ema...> 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 Governmental 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> <image002.jpg><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<https://mm.icann.org/mailman/listinfo/accountability-cross-community> _______________________________________________ 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
Completely agree with the concerns raised. On 24/01/2016 22:11, Schaefer, Brett wrote:
Very much agree with Paul and Greg. Not at all how I understand duly take into account nor how I understood our discussions assumed it would work.
________________________________ Brett Schaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097 heritage.org<http://heritage.org/>
__________
On Jan 24, 2016, at 4:34 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> 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...> <image001.png><http://www.rsaconference.com/events/us16?utm_source=signature&utm_medium=ema...>
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 Governmental 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> <image002.jpg><http://www.sidley.com/> SIDLEY AUSTIN LLP
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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>____
__ __
*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>____
Image removed by sender. 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.
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"duly taken into account" absolutely does not mean "followed." 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...
____
< http://www.rsaconference.com/events/us16?utm_source=signature&utm_medium=ema...
____
__ __
*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>____
Image removed by sender. http://www.sidley.com/files/upload/signatures/SA-autosig.png <http://www.sidley.com/>*SIDLEY AUSTIN LLP*____
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Hi, Not lawyer and definitely of the opinion that we have understood it the way Greg et al have understood it up to this point. But legally, how is "duly taken into account" different from "taken into account" avri On 24-Jan-16 20:22, Greg Shatan wrote:
"duly taken into account" absolutely does not mean "followed."
On Sun, Jan 24, 2016 at 8:10 PM, Nigel Roberts <nigel@channelisles.net <mailto: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> <mailto: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.rosenzweig@redbranchconsulting.com> <mailto:paul.rosenzweigesq@redbranchconsulting.com <mailto:paul.rosenzweigesq@redbranchconsulting.com>> ____
O: +1 (202) 547-0660 <tel:%2B1%20%28202%29%20547-0660> <tel:%2B1%20%28202%29%20547-0660>____
M: +1 (202) 329-9650 <tel:%2B1%20%28202%29%20329-9650> <tel:%2B1%20%28202%29%20329-9650>____
VOIP: +1 (202) 738-1739 <tel:%2B1%20%28202%29%20738-1739> <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>____
__ __
*From:*Gregory, Holly [mailto:holly.gregory@sidley.com <mailto:holly.gregory@sidley.com> <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> <mailto:mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>>>; 'thomas@rickert.net <mailto:thomas@rickert.net> <mailto:thomas@rickert.net <mailto:thomas@rickert.net>>' <thomas@rickert.net <mailto:thomas@rickert.net> <mailto:thomas@rickert.net <mailto:thomas@rickert.net>>>; 'León Felipe Sánchez Ambía' <leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx> <mailto:leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>>>; 'accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>' <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>>; 'acct-staff@icann.org <mailto:acct-staff@icann.org> <mailto:acct-staff@icann.org <mailto:acct-staff@icann.org>>' <acct-staff@icann.org <mailto:acct-staff@icann.org> <mailto:acct-staff@icann.org <mailto:acct-staff@icann.org>>> *Cc:* Sidley ICANN CCWG <sidleyicannccwg@sidley.com <mailto:sidleyicannccwg@sidley.com> <mailto:sidleyicannccwg@sidley.com <mailto:sidleyicannccwg@sidley.com>>>; Greeley, Amy E. <AGreeley@sidley.com <mailto:AGreeley@sidley.com> <mailto:AGreeley@sidley.com <mailto:AGreeley@sidley.com>>>; Grapsas, Rebecca <rebecca.grapsas@sidley.com <mailto:rebecca.grapsas@sidley.com> <mailto:rebecca.grapsas@sidley.com <mailto:rebecca.grapsas@sidley.com>>>; 'ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com> <mailto:ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com>>' <ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com> <mailto: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> <tel:%2B1%20212%20839%205853> holly.gregory@sidley.com <mailto:holly.gregory@sidley.com> <mailto:holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>>____
Image removed by sender. http://www.sidley.com/files/upload/signatures/SA-autosig.png <http://www.sidley.com/>*SIDLEY AUSTIN LLP*____
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Avri, I don't have a formal legal definition of "duly" at my fingertips -- but generally, when "due" or "duly" is used in a legal context, it connotes a reasonable and appropriate level of attention and care, with an implication that more (rather than less) was done by the party. Greg On Sun, Jan 24, 2016 at 10:06 PM, Avri Doria <avri@acm.org> wrote:
Hi,
Not lawyer and definitely of the opinion that we have understood it the way Greg et al have understood it up to this point.
But legally, how is "duly taken into account" different from "taken into account"
avri
On 24-Jan-16 20:22, Greg Shatan wrote:
"duly taken into account" absolutely does not mean "followed."
On Sun, Jan 24, 2016 at 8:10 PM, Nigel Roberts <nigel@channelisles.net <mailto: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> <mailto: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.rosenzweig@redbranchconsulting.com> <mailto:paul.rosenzweigesq@redbranchconsulting.com <mailto:paul.rosenzweigesq@redbranchconsulting.com>> ____
O: +1 (202) 547-0660 <tel:%2B1%20%28202%29%20547-0660> <tel:%2B1%20%28202%29%20547-0660>____
M: +1 (202) 329-9650 <tel:%2B1%20%28202%29%20329-9650> <tel:%2B1%20%28202%29%20329-9650>____
VOIP: +1 (202) 738-1739 <tel:%2B1%20%28202%29%20738-1739> <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... ____
< http://www.rsaconference.com/events/us16?utm_source=signature&utm_medium=ema... ____
__ __
*From:*Gregory, Holly [mailto:holly.gregory@sidley.com <mailto:holly.gregory@sidley.com> <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> <mailto:mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>>>; 'thomas@rickert.net <mailto:thomas@rickert.net> <mailto:thomas@rickert.net <mailto:thomas@rickert.net>>' <thomas@rickert.net <mailto:thomas@rickert.net> <mailto:thomas@rickert.net <mailto:thomas@rickert.net>>>; 'León Felipe Sánchez Ambía' <leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx> <mailto:leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>>>; 'accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>' <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>>; 'acct-staff@icann.org <mailto:acct-staff@icann.org> <mailto:acct-staff@icann.org <mailto:acct-staff@icann.org>>' <acct-staff@icann.org <mailto:acct-staff@icann.org> <mailto:acct-staff@icann.org <mailto:acct-staff@icann.org>>> *Cc:* Sidley ICANN CCWG <sidleyicannccwg@sidley.com <mailto:sidleyicannccwg@sidley.com> <mailto:sidleyicannccwg@sidley.com <mailto:sidleyicannccwg@sidley.com>>>; Greeley, Amy E. <AGreeley@sidley.com <mailto:AGreeley@sidley.com> <mailto:AGreeley@sidley.com <mailto:AGreeley@sidley.com>>>; Grapsas, Rebecca <rebecca.grapsas@sidley.com <mailto:rebecca.grapsas@sidley.com> <mailto:rebecca.grapsas@sidley.com <mailto:rebecca.grapsas@sidley.com>>>; 'ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com> <mailto:ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com>>' <ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com> <mailto: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> <tel:%2B1%20212%20839%205853> holly.gregory@sidley.com <mailto:holly.gregory@sidley.com> <mailto:holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>>____
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From Black's Law Dictionary via Westlaw:
Duly: In due or proper form or manner ; according to legal requirements.Regularly; upon a proper foundation, as distinguished from mere form. Robertson v.Perkins, 129 U. S. 233, 9 Sup. Ct. 279, 32 L. Ed. 6S6; Brownell v. Greenwich, 114 N. Y.518, 22 N. E. 24, 4 L. R. A. 6S5; Leth- brldge v. New York (Super. N. Y.) 15 N. Y. Supp.502; Allen v. Pancoast, 20 N. J. Law, 74; Van Arsdale v. Van Arsdale, 20 N. J. Law, 423;Dunning v. Coleman. 27 La. Ann. 48; Young v. Wright, 52 Cal. 410; White v. Johnson,27 Or. 282, 40 Pac. 511, 50 Am. St. Rep. 726. Law Dictionary: What is DULY? definition of DULY (Black's Law Dictionary) ---------------------------------------- From: "Greg Shatan" <gregshatanipc@gmail.com> Sent: Monday, January 25, 2016 3:33 AM To: "Avri Doria" <avri@acm.org> Cc: "accountability-cross-community@icann.org" <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11 Avri, I don't have a formal legal definition of "duly" at my fingertips -- but generally, when "due" or "duly" is used in a legal context, it connotes a reasonable and appropriate level of attention and care, with an implication that more (rather than less) was done by the party. Greg On Sun, Jan 24, 2016 at 10:06 PM, Avri Doria <avri@acm.org> wrote: Hi, Not lawyer and definitely of the opinion that we have understood it the way Greg et al have understood it up to this point. But legally, how is "duly taken into account" different from "taken into account" avri On 24-Jan-16 20:22, Greg Shatan wrote:
"duly taken into account" absolutely does not mean "followed."
On Sun, Jan 24, 2016 at 8:10 PM, Nigel Roberts <nigel@channelisles.net > <mailto: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>
<mailto: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.rosenzweig@redbranchconsulting.com> <mailto:paul.rosenzweigesq@redbranchconsulting.com <mailto:paul.rosenzweigesq@redbranchconsulting.com>> ____
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M: +1 (202) 329-9650 <tel:%2B1%20%28202%29%20329-9650> <tel:%2B1%20%28202%29%20329-9650>____
VOIP: +1 (202) 738-1739 <tel:%2B1%20%28202%29%20738-1739> <tel:%2B1%20%28202%29%20738-1739>____
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Link to my PGP Key
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*From:*Gregory, Holly [mailto:holly.gregory@sidley.com <mailto:holly.gregory@sidley.com> <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> <mailto:mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>>>; 'thomas@rickert.net <mailto:thomas@rickert.net> <mailto:thomas@rickert.net <mailto:thomas@rickert.net>>' <thomas@rickert.net <mailto:thomas@rickert.net> <mailto:thomas@rickert.net <mailto:thomas@rickert.net>>>; 'León Felipe Sánchez Ambía' <leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx> <mailto:leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>>>; 'accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>' <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>>; 'acct-staff@icann.org <mailto:acct-staff@icann.org> <mailto:acct-staff@icann.org <mailto:acct-staff@icann.org>>' <acct-staff@icann.org <mailto:acct-staff@icann.org> <mailto:acct-staff@icann.org <mailto:acct-staff@icann.org>>> *Cc:* Sidley ICANN CCWG <sidleyicannccwg@sidley.com <mailto:sidleyicannccwg@sidley.com> <mailto:sidleyicannccwg@sidley.com <mailto:sidleyicannccwg@sidley.com>>>; Greeley, Amy E. <AGreeley@sidley.com <mailto:AGreeley@sidley.com> <mailto:AGreeley@sidley.com <mailto:AGreeley@sidley.com>>>; Grapsas, Rebecca <rebecca.grapsas@sidley.com <mailto:rebecca.grapsas@sidley.com> <mailto:rebecca.grapsas@sidley.com <mailto:rebecca.grapsas@sidley.com>>>; 'ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com> <mailto:ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com>>' <ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com> <mailto: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> <tel:%2B1%20212%20839%205853> holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>
<mailto:holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>>____
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Dear All Since many years I am struggling with the use of the term" Duely" ,"Due course" " Due account",Due action",undue interference" and ,,,, These are qualifiers used to provide some degree of flexibility and manoeuvring . Their use , depend on the circumstances and conditions in which they are used. Their use are also depending on degree of judgement which were / are practices by those using it. I suggest the lawyers review the revised text for the text under consideration , in particular with the replacement of " consistent with GAC advice" which caused difficulties for some , in using the current language in the Bylaw , as close as possible Regards Kavouss Sent from my iPhone
On 25 Jan 2016, at 06:01, Edward Morris <egmorris1@toast.net> wrote:
From Black's Law Dictionary via Westlaw:
Duly:
In due or proper form or manner ; according to legal requirements.Regularly; upon a proper foundation, as distinguished from mere form. Robertson v.Perkins, 129 U. S. 233, 9 Sup. Ct. 279, 32 L. Ed. 6S6; Brownell v. Greenwich, 114 N. Y.518, 22 N. E. 24, 4 L. R. A. 6S5; Leth- brldge v. New York (Super. N. Y.) 15 N. Y. Supp.502; Allen v. Pancoast, 20 N. J. Law, 74; Van Arsdale v. Van Arsdale, 20 N. J. Law, 423;Dunning v. Coleman. 27 La. Ann. 48; Young v. Wright, 52 Cal. 410; White v. Johnson,27 Or. 282, 40 Pac. 511, 50 Am. St. Rep. 726. Law Dictionary: What is DULY? definition of DULY (Black's Law Dictionary)
From: "Greg Shatan" <gregshatanipc@gmail.com> Sent: Monday, January 25, 2016 3:33 AM To: "Avri Doria" <avri@acm.org> Cc: "accountability-cross-community@icann.org" <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11
Avri,
I don't have a formal legal definition of "duly" at my fingertips -- but generally, when "due" or "duly" is used in a legal context, it connotes a reasonable and appropriate level of attention and care, with an implication that more (rather than less) was done by the party.
Greg
On Sun, Jan 24, 2016 at 10:06 PM, Avri Doria <avri@acm.org> wrote: Hi,
Not lawyer and definitely of the opinion that we have understood it the way Greg et al have understood it up to this point.
But legally, how is "duly taken into account" different from "taken into account"
avri
On 24-Jan-16 20:22, Greg Shatan wrote:
"duly taken into account" absolutely does not mean "followed."
On Sun, Jan 24, 2016 at 8:10 PM, Nigel Roberts <nigel@channelisles.net <mailto: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> <mailto: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.rosenzweig@redbranchconsulting.com> <mailto:paul.rosenzweigesq@redbranchconsulting.com <mailto:paul.rosenzweigesq@redbranchconsulting.com>> ____
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VOIP: +1 (202) 738-1739 <tel:%2B1%20%28202%29%20738-1739> <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>____
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*From:*Gregory, Holly [mailto:holly.gregory@sidley.com <mailto:holly.gregory@sidley.com> <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> <mailto:mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>>>; 'thomas@rickert.net <mailto:thomas@rickert.net> <mailto:thomas@rickert.net <mailto:thomas@rickert.net>>' <thomas@rickert.net <mailto:thomas@rickert.net> <mailto:thomas@rickert.net <mailto:thomas@rickert.net>>>; 'León Felipe Sánchez Ambía' <leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx> <mailto:leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>>>; 'accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>' <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>>; 'acct-staff@icann.org <mailto:acct-staff@icann.org> <mailto:acct-staff@icann.org <mailto:acct-staff@icann.org>>' <acct-staff@icann.org <mailto:acct-staff@icann.org> <mailto:acct-staff@icann.org <mailto:acct-staff@icann.org>>> *Cc:* Sidley ICANN CCWG <sidleyicannccwg@sidley.com <mailto:sidleyicannccwg@sidley.com> <mailto:sidleyicannccwg@sidley.com <mailto:sidleyicannccwg@sidley.com>>>; Greeley, Amy E. <AGreeley@sidley.com <mailto:AGreeley@sidley.com> <mailto:AGreeley@sidley.com <mailto:AGreeley@sidley.com>>>; Grapsas, Rebecca <rebecca.grapsas@sidley.com <mailto:rebecca.grapsas@sidley.com> <mailto:rebecca.grapsas@sidley.com <mailto:rebecca.grapsas@sidley.com>>>; 'ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com> <mailto:ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com>>' <ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com> <mailto:ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com>>> *Subject:* [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11____
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Dear CCWG ACCT Co-Chairs, Members, Participants and ICANN Staff, ____
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We are writing to raise with you the following issues that we identified in our high-level review of the above- referenced Annexes:____
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*_Annex 1 (GAC as Decisional Participant)_*: We did not have any high-level comments on this Annex.____
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*_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/.____
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*_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./ ____
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*_Annex 10 (SO/AC Accountability)_*: We did not have any high-level comments on this Annex. ____
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*_Annex 11 (GAC Advice)_*: ____
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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.____
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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_/.” ____
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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. ____
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The proposed addition to the current Bylaws text is underlined below:____
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*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.____
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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.____
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Kind regards,____
Holly and Rosemary____
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*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> <tel:%2B1%20212%20839%205853> holly.gregory@sidley.com <mailto:holly.gregory@sidley.com> <mailto:holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>>____
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There is an apocryphal story I learned when working at DEC in the 1980s. Apparentl a contract was negotiated to supply hardware and software one time. The hardware was supplied on with one year's support, 4 hour response. The software was supplied with a support on a 'best' efforts basis. Now, as many people know, in the IT industry "best efforts" support means "We'll do what we can if there's nothing more important on" and that's what the drafters of the contract INTENDED. But (again, remember this is a cautionary tale), it seems that the jurisdiction in which the customer was interpreted "best efforts" extremely literally. That is to say, it was judged not on the standard of what a reasonable support company in the same industry would be able to do without being negligent, but on the standard of the best possible outcome with the best possible effort. Many people, in writing policy documents include words such as 'duly' to imply an obligation of order. But such words can have modifying effect in the eyes of the lawyers and judges (who are, first and foremost lawyers) interpreting them. This is one of the reasons the English legal system, post-Woolf, has diverged from the traditional common-law approach of using Latin, and jargon phrases, and instead drafting skill is now measured by how simply a document can be written. To quote Strunk and White (or was it Ernest Gowers?) "Omit needless words". and "Eschew obfuscation". On 25/01/16 08:34, Kavouss Arasteh wrote:
Dear All Since many years I am struggling with the use of the term" Duely" ,"Due course" " Due account",Due action",undue interference" and ,,,, These are qualifiers used to provide some degree of flexibility and manoeuvring . Their use , depend on the circumstances and conditions in which they are used. Their use are also depending on degree of judgement which were / are practices by those using it. I suggest the lawyers review the revised text for the text under consideration , in particular with the replacement of " consistent with GAC advice" which caused difficulties for some , in using the current language in the Bylaw , as close as possible Regards Kavouss
Sent from my iPhone
On 25 Jan 2016, at 06:01, Edward Morris <egmorris1@toast.net <mailto:egmorris1@toast.net>> wrote:
From Black's Law Dictionary via Westlaw: *Duly: * In due or proper form or manner ; according to legal requirements.Regularly; upon a proper foundation, as distinguished from mere form. Robertson v.Perkins, 129 U. S. 233, 9 Sup. Ct. 279, 32 L. Ed. 6S6; Brownell v. Greenwich, 114 N. Y.518, 22 N. E. 24, 4 L. R. A. 6S5; Leth- brldge v. New York (Super. N. Y.) 15 N. Y. Supp.502; Allen v. Pancoast, 20 N. J. Law, 74; Van Arsdale v. Van Arsdale, 20 N. J. Law, 423;Dunning v. Coleman. 27 La. Ann. 48; Young v. Wright, 52 Cal. 410; White v. Johnson,27 Or. 282, 40 Pac. 511, 50 Am. St. Rep. 726. Law Dictionary: What is DULY? definition of DULY (Black's Law Dictionary) ------------------------------------------------------------------------ *From*: "Greg Shatan" <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> *Sent*: Monday, January 25, 2016 3:33 AM *To*: "Avri Doria" <avri@acm.org <mailto:avri@acm.org>> *Cc*: "accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> *Subject*: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11 Avri, I don't have a formal legal definition of "duly" at my fingertips -- but generally, when "due" or "duly" is used in a legal context, it connotes a reasonable and appropriate level of attention and care, with an implication that more (rather than less) was done by the party. Greg On Sun, Jan 24, 2016 at 10:06 PM, Avri Doria <avri@acm.org <mailto:avri@acm.org>> wrote:
Hi,
Not lawyer and definitely of the opinion that we have understood it the way Greg et al have understood it up to this point.
But legally, how is "duly taken into account" different from "taken into account"
avri
On 24-Jan-16 20:22, Greg Shatan wrote: > "duly taken into account" absolutely does not mean "followed." > > On Sun, Jan 24, 2016 at 8:10 PM, Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net> > <mailto:nigel@channelisles.net <mailto: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> > <mailto:paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> > <mailto:paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> > <mailto: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.rosenzweig@redbranchconsulting.com> > <mailto:paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> > <mailto:paul.rosenzweigesq@redbranchconsulting.com <mailto:paul.rosenzweigesq@redbranchconsulting.com> > <mailto:paul.rosenzweigesq@redbranchconsulting.com <mailto:paul.rosenzweigesq@redbranchconsulting.com>>> ____ > > O:+1 (202) 547-0660 <tel:%2B1%20%28202%29%20547-0660> <tel:%2B1%20%28202%29%20547-0660> > <tel:%2B1%20%28202%29%20547-0660>____ > > M: +1 (202) 329-9650 <tel:%2B1%20%28202%29%20329-9650> > <tel:%2B1%20%28202%29%20329-9650>____ > > VOIP: +1 (202) 738-1739 <tel:%2B1%20%28202%29%20738-1739> > <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> > <mailto:holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>> > <mailto:holly.gregory@sidley.com <mailto:holly.gregory@sidley.com> > <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> > <mailto:mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>> > <mailto:mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr> > <mailto:mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>>>>; 'thomas@rickert.net <mailto:thomas@rickert.net> > <mailto:thomas@rickert.net <mailto:thomas@rickert.net>> > <mailto:thomas@rickert.net <mailto:thomas@rickert.net> <mailto:thomas@rickert.net <mailto:thomas@rickert.net>>>' > <thomas@rickert.net <mailto:thomas@rickert.net> <mailto:thomas@rickert.net <mailto:thomas@rickert.net>> > <mailto:thomas@rickert.net <mailto:thomas@rickert.net> <mailto:thomas@rickert.net <mailto:thomas@rickert.net>>>>; > 'León Felipe Sánchez Ambía' > <leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx> <mailto:leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>> > <mailto:leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx> <mailto:leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>>>>; > 'accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>>' > <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>>>; > 'acct-staff@icann.org <mailto:acct-staff@icann.org> <mailto:acct-staff@icann.org <mailto:acct-staff@icann.org>> > <mailto:acct-staff@icann.org <mailto:acct-staff@icann.org> <mailto:acct-staff@icann.org <mailto:acct-staff@icann.org>>>' > <acct-staff@icann.org <mailto:acct-staff@icann.org> <mailto:acct-staff@icann.org <mailto:acct-staff@icann.org>> > <mailto:acct-staff@icann.org <mailto:acct-staff@icann.org> <mailto:acct-staff@icann.org <mailto:acct-staff@icann.org>>>> > *Cc:* Sidley ICANN CCWG <sidleyicannccwg@sidley.com <mailto:sidleyicannccwg@sidley.com> > <mailto:sidleyicannccwg@sidley.com <mailto:sidleyicannccwg@sidley.com>> > <mailto:sidleyicannccwg@sidley.com <mailto:sidleyicannccwg@sidley.com> > <mailto:sidleyicannccwg@sidley.com <mailto:sidleyicannccwg@sidley.com>>>>; Greeley, Amy E. > <AGreeley@sidley.com <mailto:AGreeley@sidley.com> <mailto:AGreeley@sidley.com <mailto:AGreeley@sidley.com>> > <mailto:AGreeley@sidley.com <mailto:AGreeley@sidley.com> <mailto:AGreeley@sidley.com <mailto:AGreeley@sidley.com>>>>; > Grapsas, Rebecca > <rebecca.grapsas@sidley.com <mailto:rebecca.grapsas@sidley.com> > <mailto:rebecca.grapsas@sidley.com <mailto:rebecca.grapsas@sidley.com>> > <mailto:rebecca.grapsas@sidley.com <mailto:rebecca.grapsas@sidley.com> > <mailto:rebecca.grapsas@sidley.com <mailto:rebecca.grapsas@sidley.com>>>>; > 'ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com> <mailto:ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com>> > <mailto:ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com> <mailto:ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com>>>' > <ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com> <mailto:ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com>> > <mailto:ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com> <mailto: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> > <tel:%2B1%20212%20839%205853> >holly.gregory@sidley.com <mailto:holly.gregory@sidley.com> <mailto:holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>> > <mailto:holly.gregory@sidley.com <mailto:holly.gregory@sidley.com> > <mailto:holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>>>____ > > Image removed by sender. >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> > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>> > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>>> > >https://mm.icann.org/mailman/listinfo/accountability-cross-community > > > > > _______________________________________________ > Accountability-Cross-Community mailing list >Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>> >https://mm.icann.org/mailman/listinfo/accountability-cross-community > > _______________________________________________ > Accountability-Cross-Community mailing list >Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>> >https://mm.icann.org/mailman/listinfo/accountability-cross-community > > > > > _______________________________________________ > 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
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May I conclude that Rosemary, when she wrote ³the phrase ³duly taken into account² is ambiguous² was correct? But that she was wrong on another point: this is not a problem in this particular case, but an advantage? (in the sense that the ICANN Board can ³easily² say that they have duly taken the advice into account and that it would be quite difficult for the GAC to prove otherwise) Best, Roelof On 25-01-16 11:54, "accountability-cross-community-bounces@icann.org on behalf of Nigel Roberts" <accountability-cross-community-bounces@icann.org on behalf of nigel@channelisles.net> wrote:
There is an apocryphal story I learned when working at DEC in the 1980s.
Apparentl a contract was negotiated to supply hardware and software one time.
The hardware was supplied on with one year's support, 4 hour response. The software was supplied with a support on a 'best' efforts basis.
Now, as many people know, in the IT industry "best efforts" support means "We'll do what we can if there's nothing more important on" and that's what the drafters of the contract INTENDED.
But (again, remember this is a cautionary tale), it seems that the jurisdiction in which the customer was interpreted "best efforts" extremely literally.
That is to say, it was judged not on the standard of what a reasonable support company in the same industry would be able to do without being negligent, but on the standard of the best possible outcome with the best possible effort.
Many people, in writing policy documents include words such as 'duly' to imply an obligation of order. But such words can have modifying effect in the eyes of the lawyers and judges (who are, first and foremost lawyers) interpreting them.
This is one of the reasons the English legal system, post-Woolf, has diverged from the traditional common-law approach of using Latin, and jargon phrases, and instead drafting skill is now measured by how simply a document can be written.
To quote Strunk and White (or was it Ernest Gowers?)
"Omit needless words".
and
"Eschew obfuscation".
On 25/01/16 08:34, Kavouss Arasteh wrote:
Dear All Since many years I am struggling with the use of the term" Duely" ,"Due course" " Due account",Due action",undue interference" and ,,,, These are qualifiers used to provide some degree of flexibility and manoeuvring . Their use , depend on the circumstances and conditions in which they are used. Their use are also depending on degree of judgement which were / are practices by those using it. I suggest the lawyers review the revised text for the text under consideration , in particular with the replacement of " consistent with GAC advice" which caused difficulties for some , in using the current language in the Bylaw , as close as possible Regards Kavouss
Sent from my iPhone
On 25 Jan 2016, at 06:01, Edward Morris <egmorris1@toast.net <mailto:egmorris1@toast.net>> wrote:
From Black's Law Dictionary via Westlaw: *Duly: * In due or proper form or manner ; according to legal requirements.Regularly; upon a proper foundation, as distinguished from mere form. Robertson v.Perkins, 129 U. S. 233, 9 Sup. Ct. 279, 32 L. Ed. 6S6; Brownell v. Greenwich, 114 N. Y.518, 22 N. E. 24, 4 L. R. A. 6S5; Leth- brldge v. New York (Super. N. Y.) 15 N. Y. Supp.502; Allen v. Pancoast, 20 N. J. Law, 74; Van Arsdale v. Van Arsdale, 20 N. J. Law, 423;Dunning v. Coleman. 27 La. Ann. 48; Young v. Wright, 52 Cal. 410; White v. Johnson,27 Or. 282, 40 Pac. 511, 50 Am. St. Rep. 726. Law Dictionary: What is DULY? definition of DULY (Black's Law Dictionary)
------------------------------------------------------------------------ *From*: "Greg Shatan" <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> *Sent*: Monday, January 25, 2016 3:33 AM *To*: "Avri Doria" <avri@acm.org <mailto:avri@acm.org>> *Cc*: "accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> *Subject*: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11 Avri, I don't have a formal legal definition of "duly" at my fingertips -- but generally, when "due" or "duly" is used in a legal context, it connotes a reasonable and appropriate level of attention and care, with an implication that more (rather than less) was done by the party. Greg On Sun, Jan 24, 2016 at 10:06 PM, Avri Doria <avri@acm.org <mailto:avri@acm.org>> wrote:
Hi,
Not lawyer and definitely of the opinion that we have understood it the way Greg et al have understood it up to this point.
But legally, how is "duly taken into account" different from "taken into account"
avri
On 24-Jan-16 20:22, Greg Shatan wrote: > "duly taken into account" absolutely does not mean "followed." > > On Sun, Jan 24, 2016 at 8:10 PM, Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net> > <mailto:nigel@channelisles.net <mailto: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> > <mailto:paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> > <mailto:paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> > <mailto:paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>>>> wrote: > > Is anyone else concerned about the commentary to Annex > 11. As I > read our lawyer¹s 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 lawyer¹s 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 Š.____ > > __ __ > > Paul____ > > __ __ > > Paul Rosenzweig____ > >paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> > <mailto:paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> > <mailto:paul.rosenzweigesq@redbranchconsulting.com <mailto:paul.rosenzweigesq@redbranchconsulting.com> > <mailto:paul.rosenzweigesq@redbranchconsulting.com <mailto:paul.rosenzweigesq@redbranchconsulting.com>>> ____ > > O:+1 (202) 547-0660 <tel:%2B1%20%28202%29%20547-0660> <tel:%2B1%20%28202%29%20547-0660> > <tel:%2B1%20%28202%29%20547-0660>____ > > M: +1 (202) 329-9650 <tel:%2B1%20%28202%29%20329-9650> > <tel:%2B1%20%28202%29%20329-9650>____ > > VOIP: +1 (202) 738-1739 <tel:%2B1%20%28202%29%20738-1739> > <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=ar ticle&id=19&Itemid=9>____ > > > <http://www.rsaconference.com/events/us16?utm_source=signature&utm_mediu m=email&utm_campaign=speakers-us2016>____ > > __ __ > > *From:*Gregory, Holly [mailto:holly.gregory@sidley.com <mailto:holly.gregory@sidley.com> > <mailto:holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>> > <mailto:holly.gregory@sidley.com <mailto:holly.gregory@sidley.com> > <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> > <mailto:mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>> > <mailto:mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr> > <mailto:mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>>>>; 'thomas@rickert.net <mailto:thomas@rickert.net> > <mailto:thomas@rickert.net <mailto:thomas@rickert.net>> > <mailto:thomas@rickert.net <mailto:thomas@rickert.net> <mailto:thomas@rickert.net <mailto:thomas@rickert.net>>>' > <thomas@rickert.net <mailto:thomas@rickert.net> <mailto:thomas@rickert.net <mailto:thomas@rickert.net>> > <mailto:thomas@rickert.net <mailto:thomas@rickert.net> <mailto:thomas@rickert.net <mailto:thomas@rickert.net>>>>; > 'León Felipe Sánchez Ambía' > <leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx> <mailto:leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>> > <mailto:leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx> <mailto:leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>>>>; > 'accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>>' > <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>>>; > 'acct-staff@icann.org <mailto:acct-staff@icann.org> <mailto:acct-staff@icann.org <mailto:acct-staff@icann.org>> > <mailto:acct-staff@icann.org <mailto:acct-staff@icann.org> <mailto:acct-staff@icann.org <mailto:acct-staff@icann.org>>>' > <acct-staff@icann.org <mailto:acct-staff@icann.org> <mailto:acct-staff@icann.org <mailto:acct-staff@icann.org>> > <mailto:acct-staff@icann.org <mailto:acct-staff@icann.org> <mailto:acct-staff@icann.org <mailto:acct-staff@icann.org>>>> > *Cc:* Sidley ICANN CCWG <sidleyicannccwg@sidley.com <mailto:sidleyicannccwg@sidley.com> > <mailto:sidleyicannccwg@sidley.com <mailto:sidleyicannccwg@sidley.com>> > <mailto:sidleyicannccwg@sidley.com <mailto:sidleyicannccwg@sidley.com> > <mailto:sidleyicannccwg@sidley.com <mailto:sidleyicannccwg@sidley.com>>>>; Greeley, Amy E. > <AGreeley@sidley.com <mailto:AGreeley@sidley.com> <mailto:AGreeley@sidley.com <mailto:AGreeley@sidley.com>> > <mailto:AGreeley@sidley.com <mailto:AGreeley@sidley.com> <mailto:AGreeley@sidley.com <mailto:AGreeley@sidley.com>>>>; > Grapsas, Rebecca > <rebecca.grapsas@sidley.com <mailto:rebecca.grapsas@sidley.com> > <mailto:rebecca.grapsas@sidley.com <mailto:rebecca.grapsas@sidley.com>> > <mailto:rebecca.grapsas@sidley.com <mailto:rebecca.grapsas@sidley.com> > <mailto:rebecca.grapsas@sidley.com <mailto:rebecca.grapsas@sidley.com>>>>; > 'ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com> <mailto:ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com>> > <mailto:ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com> <mailto:ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com>>>' > <ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com> <mailto:ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com>> > <mailto:ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com> <mailto: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 BGC¹s > 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 ³diversity² 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 ³duly taken into account² 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 ³do not act inconsistently with.² Based on this > interpretation, /we recommend the following clarification > (underlined) to the first sentence of this Bylaws > provision: ³The > 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_/.² ____ > > __ __ > > 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 ³duly > take[] into > account² 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 > ICANN¹s 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. 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Dear all, I am not comfortable with such freedom of action by ICANN. "Duly" does not mean freedom of action. What is the basis and RATIONALE for such interpretation. If people wants to escape from reality and valid reasons and appropriate treatment they SHOULD NOT make such an open-ended and totally vague interpretations. It is surprising ti hear that. Regards Kavouss Sent from my iPhone
On 25 Jan 2016, at 14:04, Roelof Meijer <Roelof.Meijer@sidn.nl> wrote:
May I conclude that Rosemary, when she wrote ³the phrase ³duly taken into account² is ambiguous² was correct? But that she was wrong on another point: this is not a problem in this particular case, but an advantage? (in the sense that the ICANN Board can ³easily² say that they have duly taken the advice into account and that it would be quite difficult for the GAC to prove otherwise)
Best,
Roelof
On 25-01-16 11:54, "accountability-cross-community-bounces@icann.org on behalf of Nigel Roberts" <accountability-cross-community-bounces@icann.org on behalf of nigel@channelisles.net> wrote:
There is an apocryphal story I learned when working at DEC in the 1980s.
Apparentl a contract was negotiated to supply hardware and software one time.
The hardware was supplied on with one year's support, 4 hour response. The software was supplied with a support on a 'best' efforts basis.
Now, as many people know, in the IT industry "best efforts" support means "We'll do what we can if there's nothing more important on" and that's what the drafters of the contract INTENDED.
But (again, remember this is a cautionary tale), it seems that the jurisdiction in which the customer was interpreted "best efforts" extremely literally.
That is to say, it was judged not on the standard of what a reasonable support company in the same industry would be able to do without being negligent, but on the standard of the best possible outcome with the best possible effort.
Many people, in writing policy documents include words such as 'duly' to imply an obligation of order. But such words can have modifying effect in the eyes of the lawyers and judges (who are, first and foremost lawyers) interpreting them.
This is one of the reasons the English legal system, post-Woolf, has diverged from the traditional common-law approach of using Latin, and jargon phrases, and instead drafting skill is now measured by how simply a document can be written.
To quote Strunk and White (or was it Ernest Gowers?)
"Omit needless words".
and
"Eschew obfuscation".
On 25/01/16 08:34, Kavouss Arasteh wrote: Dear All Since many years I am struggling with the use of the term" Duely" ,"Due course" " Due account",Due action",undue interference" and ,,,, These are qualifiers used to provide some degree of flexibility and manoeuvring . Their use , depend on the circumstances and conditions in which they are used. Their use are also depending on degree of judgement which were / are practices by those using it. I suggest the lawyers review the revised text for the text under consideration , in particular with the replacement of " consistent with GAC advice" which caused difficulties for some , in using the current language in the Bylaw , as close as possible Regards Kavouss
Sent from my iPhone
On 25 Jan 2016, at 06:01, Edward Morris <egmorris1@toast.net <mailto:egmorris1@toast.net>> wrote:
From Black's Law Dictionary via Westlaw: *Duly: * In due or proper form or manner ; according to legal requirements.Regularly; upon a proper foundation, as distinguished from mere form. Robertson v.Perkins, 129 U. S. 233, 9 Sup. Ct. 279, 32 L. Ed. 6S6; Brownell v. Greenwich, 114 N. Y.518, 22 N. E. 24, 4 L. R. A. 6S5; Leth- brldge v. New York (Super. N. Y.) 15 N. Y. Supp.502; Allen v. Pancoast, 20 N. J. Law, 74; Van Arsdale v. Van Arsdale, 20 N. J. Law, 423;Dunning v. Coleman. 27 La. Ann. 48; Young v. Wright, 52 Cal. 410; White v. Johnson,27 Or. 282, 40 Pac. 511, 50 Am. St. Rep. 726. Law Dictionary: What is DULY? definition of DULY (Black's Law Dictionary)
------------------------------------------------------------------------ *From*: "Greg Shatan" <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> *Sent*: Monday, January 25, 2016 3:33 AM *To*: "Avri Doria" <avri@acm.org <mailto:avri@acm.org>> *Cc*: "accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> *Subject*: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11 Avri, I don't have a formal legal definition of "duly" at my fingertips -- but generally, when "due" or "duly" is used in a legal context, it connotes a reasonable and appropriate level of attention and care, with an implication that more (rather than less) was done by the party. Greg On Sun, Jan 24, 2016 at 10:06 PM, Avri Doria <avri@acm.org <mailto:avri@acm.org>> wrote:
Hi,
Not lawyer and definitely of the opinion that we have understood it the way Greg et al have understood it up to this point.
But legally, how is "duly taken into account" different from "taken into account"
avri
On 24-Jan-16 20:22, Greg Shatan wrote: "duly taken into account" absolutely does not mean "followed."
On Sun, Jan 24, 2016 at 8:10 PM, Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net> <mailto:nigel@channelisles.net <mailto: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> <mailto:paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> <mailto:paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> <mailto:paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>>>> wrote:
Is anyone else concerned about the commentary to Annex 11. As I read our lawyer¹s 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 lawyer¹s 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 Š.____
__ __
Paul____
__ __
Paul Rosenzweig____
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> <mailto:paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> <mailto:paul.rosenzweigesq@redbranchconsulting.com <mailto:paul.rosenzweigesq@redbranchconsulting.com> <mailto:paul.rosenzweigesq@redbranchconsulting.com <mailto:paul.rosenzweigesq@redbranchconsulting.com>>> ____
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Skype: paul.rosenzweig1066____
Link to my PGP Key <http://www.redbranchconsulting.com/index.php?option=com_content&view=ar ticle&id=19&Itemid=9>____ <http://www.rsaconference.com/events/us16?utm_source=signature&utm_mediu m=email&utm_campaign=speakers-us2016>____
__ __
*From:*Gregory, Holly [mailto:holly.gregory@sidley.com <mailto:holly.gregory@sidley.com> <mailto:holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>> <mailto:holly.gregory@sidley.com <mailto:holly.gregory@sidley.com> <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> <mailto:mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>> <mailto:mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr> <mailto:mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>>>>; 'thomas@rickert.net <mailto:thomas@rickert.net> <mailto:thomas@rickert.net <mailto:thomas@rickert.net>> <mailto:thomas@rickert.net <mailto:thomas@rickert.net> <mailto:thomas@rickert.net <mailto:thomas@rickert.net>>>' <thomas@rickert.net <mailto:thomas@rickert.net> <mailto:thomas@rickert.net <mailto:thomas@rickert.net>> <mailto:thomas@rickert.net <mailto:thomas@rickert.net> <mailto:thomas@rickert.net <mailto:thomas@rickert.net>>>>; 'León Felipe Sánchez Ambía' <leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx> <mailto:leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>> <mailto:leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx> <mailto:leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>>>>; 'accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>>' <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>>>; 'acct-staff@icann.org <mailto:acct-staff@icann.org> <mailto:acct-staff@icann.org <mailto:acct-staff@icann.org>> <mailto:acct-staff@icann.org <mailto:acct-staff@icann.org> <mailto:acct-staff@icann.org <mailto:acct-staff@icann.org>>>' <acct-staff@icann.org <mailto:acct-staff@icann.org> <mailto:acct-staff@icann.org <mailto:acct-staff@icann.org>> <mailto:acct-staff@icann.org <mailto:acct-staff@icann.org> <mailto:acct-staff@icann.org <mailto:acct-staff@icann.org>>>> *Cc:* Sidley ICANN CCWG <sidleyicannccwg@sidley.com <mailto:sidleyicannccwg@sidley.com> <mailto:sidleyicannccwg@sidley.com <mailto:sidleyicannccwg@sidley.com>> <mailto:sidleyicannccwg@sidley.com <mailto:sidleyicannccwg@sidley.com> <mailto:sidleyicannccwg@sidley.com <mailto:sidleyicannccwg@sidley.com>>>>; Greeley, Amy E. <AGreeley@sidley.com <mailto:AGreeley@sidley.com> <mailto:AGreeley@sidley.com <mailto:AGreeley@sidley.com>> <mailto:AGreeley@sidley.com <mailto:AGreeley@sidley.com> <mailto:AGreeley@sidley.com <mailto:AGreeley@sidley.com>>>>; Grapsas, Rebecca <rebecca.grapsas@sidley.com <mailto:rebecca.grapsas@sidley.com> <mailto:rebecca.grapsas@sidley.com <mailto:rebecca.grapsas@sidley.com>> <mailto:rebecca.grapsas@sidley.com <mailto:rebecca.grapsas@sidley.com> <mailto:rebecca.grapsas@sidley.com <mailto:rebecca.grapsas@sidley.com>>>>; 'ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com> <mailto:ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com>> <mailto:ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com> <mailto:ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com>>>' <ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com> <mailto:ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com>> <mailto:ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com> <mailto: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 BGC¹s 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 ³diversity² 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./ ____
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*_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 ³duly taken into account² 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 ³do not act inconsistently with.² Based on this interpretation, /we recommend the following clarification (underlined) to the first sentence of this Bylaws provision: ³The 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_/.² ____
__ __
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 ³duly take[] into account² 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 ICANN¹s 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
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On 25-Jan-16 05:54, Nigel Roberts wrote:
"Eschew obfuscation".
Also possibly off topic: Isn't obfuscation one of tools of compromise and diplomacy: Ambiguity that leaves every body free to argue some more another day, once the future actually unfolds, but achieves something today. The degree to which we should or could eschew might be limited. Often the meaning of something only becomes clear once it has been lived and interpreted (design vs running code). Over time, I have learned that this is one of the values of keeping previously agreed upon language. avri --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
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. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd Monument Place, 24 Monument Street, London EC3R 8AJ Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
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.
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd Monument Place, 24 Monument Street, London EC3R 8AJ
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
On 25-Jan-16 06:05, Kavouss Arasteh wrote:
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
Probably off topic: But that is how I often interpret DUE RESPECT. I often think it is used as an insult with a presumption/insinuation that very little respect is 'due' the person being spoken of. avri --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
Weighing back in, a few more thoughts: First, the "duly taken into account" language has been in the bylaws for quite some time -- and it has been implemented in taking GAC advice into account (or not) over that time without causing any appreciable problem. Second, changing, "taken into account" to interpret it as "not act inconsistently" is a substantive change in the standard to be applied by the Board in considering the GAC advice and, as Malcolm points out, would have second order effects on an IRP review of the Board's actions in ways that are likely to be confusing. Third, without doubt, the idea of "not act inconsistently" gives greater privilege to GAC advice than it currently has. For these reasons, I believe that, notwithstanding my great respect for the Sidley -Adler team, we should reject this reinterpretation. If they remain convinced that "duly taken into account" is too ambiguous for a bylaw (notwithstanding its provenance over the years) and that the phrase must be changed then the reasonable options are words like "considered" or "reviewed" or such ... Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key -----Original Message----- From: Malcolm Hutty [mailto:malcolm@linx.net] Sent: Monday, January 25, 2016 4:57 AM To: Greg Shatan <gregshatanipc@gmail.com>; Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> Cc: ICANN <ICANN@adlercolvin.com>; Thomas Rickert <thomas@rickert.net>; accountability-cross-community@icann.org; acct-staff@icann.org; Sidley ICANN CCWG <sidleyicannccwg@sidley.com>; Greeley, Amy E. <AGreeley@sidley.com>; Grapsas, Rebecca <rebecca.grapsas@sidley.com> Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11 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. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd Monument Place, 24 Monument Street, London EC3R 8AJ Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
Dear All, We were asked whether the current bylaw language "duly taken into account" is ambiguous. We concluded that it is ambiguous and that, especially when read in the context of the remaining language of the bylaw provision requiring a specific process should the Board not follow GAC advice, the language is susceptible to an interpretation that many of you do not support (as apparent in the many emails our comment generated). Since it is ambiguous, it is also subject to other interpretations. We have no position on the substantive issue of what impact GAC advice should have. We recommend that work be undertaken to remove the ambiguity. Kind regards, Holly Sent with Good (www.good.com) ________________________________ From: Paul Rosenzweig Sent: Monday, January 25, 2016 08:09:13 AM To: 'Malcolm Hutty'; 'Greg Shatan' Cc: 'ICANN'; 'Thomas Rickert'; accountability-cross-community@icann.org; acct-staff@icann.org; Sidley ICANN CCWG; Greeley, Amy E.; Grapsas, Rebecca Subject: RE: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11 Weighing back in, a few more thoughts: First, the "duly taken into account" language has been in the bylaws for quite some time -- and it has been implemented in taking GAC advice into account (or not) over that time without causing any appreciable problem. Second, changing, "taken into account" to interpret it as "not act inconsistently" is a substantive change in the standard to be applied by the Board in considering the GAC advice and, as Malcolm points out, would have second order effects on an IRP review of the Board's actions in ways that are likely to be confusing. Third, without doubt, the idea of "not act inconsistently" gives greater privilege to GAC advice than it currently has. For these reasons, I believe that, notwithstanding my great respect for the Sidley -Adler team, we should reject this reinterpretation. If they remain convinced that "duly taken into account" is too ambiguous for a bylaw (notwithstanding its provenance over the years) and that the phrase must be changed then the reasonable options are words like "considered" or "reviewed" or such ... Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key -----Original Message----- From: Malcolm Hutty [mailto:malcolm@linx.net] Sent: Monday, January 25, 2016 4:57 AM To: Greg Shatan <gregshatanipc@gmail.com>; Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> Cc: ICANN <ICANN@adlercolvin.com>; Thomas Rickert <thomas@rickert.net>; accountability-cross-community@icann.org; acct-staff@icann.org; Sidley ICANN CCWG <sidleyicannccwg@sidley.com>; Greeley, Amy E. <AGreeley@sidley.com>; Grapsas, Rebecca <rebecca.grapsas@sidley.com> Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11 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. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd Monument Place, 24 Monument Street, London EC3R 8AJ Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA **************************************************************************************************** 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. ****************************************************************************************************
Dear Holly, Yes provided that it does not lead to another ambiguity resulted from misinterpretation Regards Kavouss Sent from my iPhone
On 25 Jan 2016, at 15:46, Gregory, Holly <holly.gregory@sidley.com> wrote:
Dear All,
We were asked whether the current bylaw language "duly taken into account" is ambiguous. We concluded that it is ambiguous and that, especially when read in the context of the remaining language of the bylaw provision requiring a specific process should the Board not follow GAC advice, the language is susceptible to an interpretation that many of you do not support (as apparent in the many emails our comment generated). Since it is ambiguous, it is also subject to other interpretations. We have no position on the substantive issue of what impact GAC advice should have. We recommend that work be undertaken to remove the ambiguity.
Kind regards, Holly
Sent with Good (www.good.com)
From: Paul Rosenzweig Sent: Monday, January 25, 2016 08:09:13 AM To: 'Malcolm Hutty'; 'Greg Shatan' Cc: 'ICANN'; 'Thomas Rickert'; accountability-cross-community@icann.org; acct-staff@icann.org; Sidley ICANN CCWG; Greeley, Amy E.; Grapsas, Rebecca Subject: RE: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11
Weighing back in, a few more thoughts: First, the "duly taken into account" language has been in the bylaws for quite some time -- and it has been implemented in taking GAC advice into account (or not) over that time without causing any appreciable problem. Second, changing, "taken into account" to interpret it as "not act inconsistently" is a substantive change in the standard to be applied by the Board in considering the GAC advice and, as Malcolm points out, would have second order effects on an IRP review of the Board's actions in ways that are likely to be confusing. Third, without doubt, the idea of "not act inconsistently" gives greater privilege to GAC advice than it currently has.
For these reasons, I believe that, notwithstanding my great respect for the Sidley -Adler team, we should reject this reinterpretation. If they remain convinced that "duly taken into account" is too ambiguous for a bylaw (notwithstanding its provenance over the years) and that the phrase must be changed then the reasonable options are words like "considered" or "reviewed" or such ...
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key
-----Original Message----- From: Malcolm Hutty [mailto:malcolm@linx.net] Sent: Monday, January 25, 2016 4:57 AM To: Greg Shatan <gregshatanipc@gmail.com>; Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> Cc: ICANN <ICANN@adlercolvin.com>; Thomas Rickert <thomas@rickert.net>; accountability-cross-community@icann.org; acct-staff@icann.org; Sidley ICANN CCWG <sidleyicannccwg@sidley.com>; Greeley, Amy E. <AGreeley@sidley.com>; Grapsas, Rebecca <rebecca.grapsas@sidley.com> Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11
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.
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd Monument Place, 24 Monument Street, London EC3R 8AJ
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
**************************************************************************************************** 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.
****************************************************************************************************
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As Paul noted, the phrase “duly taken in to account” has been in the bylaws for over a decade. It is not part of our Recommendation 11 changes, which are designed to reserve the board’s obligation to “try to find a mutually acceptable solution” ONLY for GAC advice that is approved without a formal objection from any country. I don’t think our lawyers have made a strong case that we must change our Rec 11 to modify exiting bylaws to resolve any pre-existing ambiguity. The rest of the lawyers advice is helpful in confirming our understanding that there is no meaningful distinction between' voting’ and ‘determining to take an action’. And our lawyers have confirmed what I understood to be the process that would result from our Rec 11 text. Highlighted below ) Below I have pasted the lawyer’s memo so it again part of this thread. From Holly and Rosemary: 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 Governmental 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. From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of "Gregory, Holly" <holly.gregory@sidley.com<mailto:holly.gregory@sidley.com>> Date: Monday, January 25, 2016 at 9:46 AM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>, 'Malcolm Hutty' <malcolm@linx.net<mailto:malcolm@linx.net>>, 'Greg Shatan' <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Cc: 'ICANN' <ICANN@adlercolvin.com<mailto:ICANN@adlercolvin.com>>, 'Thomas Rickert' <thomas@rickert.net<mailto:thomas@rickert.net>>, "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>, ACCT-Staff <acct-staff@icann.org<mailto:acct-staff@icann.org>>, 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>> Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11 Dear All, We were asked whether the current bylaw language "duly taken into account" is ambiguous. We concluded that it is ambiguous and that, especially when read in the context of the remaining language of the bylaw provision requiring a specific process should the Board not follow GAC advice, the language is susceptible to an interpretation that many of you do not support (as apparent in the many emails our comment generated). Since it is ambiguous, it is also subject to other interpretations. We have no position on the substantive issue of what impact GAC advice should have. We recommend that work be undertaken to remove the ambiguity. Kind regards, Holly Sent with Good (www.good.com) ________________________________ From: Paul Rosenzweig Sent: Monday, January 25, 2016 08:09:13 AM To: 'Malcolm Hutty'; 'Greg Shatan' Cc: 'ICANN'; 'Thomas Rickert'; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>; acct-staff@icann.org<mailto:acct-staff@icann.org>; Sidley ICANN CCWG; Greeley, Amy E.; Grapsas, Rebecca Subject: RE: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11 Weighing back in, a few more thoughts: First, the "duly taken into account" language has been in the bylaws for quite some time -- and it has been implemented in taking GAC advice into account (or not) over that time without causing any appreciable problem. Second, changing, "taken into account" to interpret it as "not act inconsistently" is a substantive change in the standard to be applied by the Board in considering the GAC advice and, as Malcolm points out, would have second order effects on an IRP review of the Board's actions in ways that are likely to be confusing. Third, without doubt, the idea of "not act inconsistently" gives greater privilege to GAC advice than it currently has. For these reasons, I believe that, notwithstanding my great respect for the Sidley -Adler team, we should reject this reinterpretation. If they remain convinced that "duly taken into account" is too ambiguous for a bylaw (notwithstanding its provenance over the years) and that the phrase must be changed then the reasonable options are words like "considered" or "reviewed" or such ... Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key -----Original Message----- From: Malcolm Hutty [mailto:malcolm@linx.net] Sent: Monday, January 25, 2016 4:57 AM To: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>; Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Cc: ICANN <ICANN@adlercolvin.com<mailto:ICANN@adlercolvin.com>>; Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>; acct-staff@icann.org<mailto:acct-staff@icann.org>; 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>> Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11 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. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd Monument Place, 24 Monument Street, London EC3R 8AJ Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA **************************************************************************************************** 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. ****************************************************************************************************
+1 with Steve. Still not sure I like Annex 11 as written even, but very much sure that the pre-existing ambiguity can be tolerated, I think .. Paul Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> Link to my PGP Key <http://www.rsaconference.com/events/us16?utm_source=signature&utm_medium=ema...> From: Steve DelBianco [mailto:sdelbianco@netchoice.org] Sent: Monday, January 25, 2016 10:08 AM To: Gregory, Holly <holly.gregory@sidley.com>; Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; 'Malcolm Hutty' <malcolm@linx.net>; 'Greg Shatan' <gregshatanipc@gmail.com> Cc: 'ICANN' <ICANN@adlercolvin.com>; 'Thomas Rickert' <thomas@rickert.net>; accountability-cross-community@icann.org; acct-staff@icann.org; Sidley ICANN CCWG <sidleyicannccwg@sidley.com>; Greeley, Amy E. <AGreeley@sidley.com>; Grapsas, Rebecca <rebecca.grapsas@sidley.com> Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11 As Paul noted, the phrase “duly taken in to account” has been in the bylaws for over a decade. It is not part of our Recommendation 11 changes, which are designed to reserve the board’s obligation to “try to find a mutually acceptable solution” ONLY for GAC advice that is approved without a formal objection from any country. I don’t think our lawyers have made a strong case that we must change our Rec 11 to modify exiting bylaws to resolve any pre-existing ambiguity. The rest of the lawyers advice is helpful in confirming our understanding that there is no meaningful distinction between' voting’ and ‘determining to take an action’. And our lawyers have confirmed what I understood to be the process that would result from our Rec 11 text. Highlighted below ) Below I have pasted the lawyer’s memo so it again part of this thread.
From Holly and Rosemary:
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 Governmental 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. From: <accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > on behalf of "Gregory, Holly" <holly.gregory@sidley.com <mailto:holly.gregory@sidley.com> > Date: Monday, January 25, 2016 at 9:46 AM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> >, 'Malcolm Hutty' <malcolm@linx.net <mailto:malcolm@linx.net> >, 'Greg Shatan' <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> > Cc: 'ICANN' <ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com> >, 'Thomas Rickert' <thomas@rickert.net <mailto:thomas@rickert.net> >, "accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> " <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> >, ACCT-Staff <acct-staff@icann.org <mailto:acct-staff@icann.org> >, 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> > Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11 Dear All, We were asked whether the current bylaw language "duly taken into account" is ambiguous. We concluded that it is ambiguous and that, especially when read in the context of the remaining language of the bylaw provision requiring a specific process should the Board not follow GAC advice, the language is susceptible to an interpretation that many of you do not support (as apparent in the many emails our comment generated). Since it is ambiguous, it is also subject to other interpretations. We have no position on the substantive issue of what impact GAC advice should have. We recommend that work be undertaken to remove the ambiguity. Kind regards, Holly Sent with Good (www.good.com <http://www.good.com> ) _____ From: Paul Rosenzweig Sent: Monday, January 25, 2016 08:09:13 AM To: 'Malcolm Hutty'; 'Greg Shatan' Cc: 'ICANN'; 'Thomas Rickert'; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> ; acct-staff@icann.org <mailto:acct-staff@icann.org> ; Sidley ICANN CCWG; Greeley, Amy E.; Grapsas, Rebecca Subject: RE: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11 Weighing back in, a few more thoughts: First, the "duly taken into account" language has been in the bylaws for quite some time -- and it has been implemented in taking GAC advice into account (or not) over that time without causing any appreciable problem. Second, changing, "taken into account" to interpret it as "not act inconsistently" is a substantive change in the standard to be applied by the Board in considering the GAC advice and, as Malcolm points out, would have second order effects on an IRP review of the Board's actions in ways that are likely to be confusing. Third, without doubt, the idea of "not act inconsistently" gives greater privilege to GAC advice than it currently has. For these reasons, I believe that, notwithstanding my great respect for the Sidley -Adler team, we should reject this reinterpretation. If they remain convinced that "duly taken into account" is too ambiguous for a bylaw (notwithstanding its provenance over the years) and that the phrase must be changed then the reasonable options are words like "considered" or "reviewed" or such ... Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key -----Original Message----- From: Malcolm Hutty [mailto:malcolm@linx.net] Sent: Monday, January 25, 2016 4:57 AM To: Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> >; Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> > Cc: ICANN <ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com> >; Thomas Rickert <thomas@rickert.net <mailto:thomas@rickert.net> >; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> ; acct-staff@icann.org <mailto:acct-staff@icann.org> ; 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> > Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11 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. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd Monument Place, 24 Monument Street, London EC3R 8AJ Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA **************************************************************************************************** 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. ****************************************************************************************************
That seems sensible – don’t fix it if it ain’t broken, right? Regards Jorge Von: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Paul Rosenzweig Gesendet: Montag, 25. Januar 2016 17:07 An: 'Steve DelBianco' <sdelbianco@netchoice.org>; 'Gregory, Holly' <holly.gregory@sidley.com>; 'Malcolm Hutty' <malcolm@linx.net>; 'Greg Shatan' <gregshatanipc@gmail.com> Cc: 'ICANN' <ICANN@adlercolvin.com>; 'Thomas Rickert' <thomas@rickert.net>; accountability-cross-community@icann.org; acct-staff@icann.org; 'Sidley ICANN CCWG' <sidleyicannccwg@sidley.com>; 'Greeley, Amy E.' <AGreeley@sidley.com>; 'Grapsas, Rebecca' <rebecca.grapsas@sidley.com> Betreff: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11 +1 with Steve. Still not sure I like Annex 11 as written even, but very much sure that the pre-existing ambiguity can be tolerated, I think .. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key<http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> [cid:image001.png@01D15818.E05B3C30]<http://www.rsaconference.com/events/us16?utm_source=signature&utm_medium=ema...> From: Steve DelBianco [mailto:sdelbianco@netchoice.org] Sent: Monday, January 25, 2016 10:08 AM To: Gregory, Holly <holly.gregory@sidley.com<mailto:holly.gregory@sidley.com>>; Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>; 'Malcolm Hutty' <malcolm@linx.net<mailto:malcolm@linx.net>>; 'Greg Shatan' <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Cc: 'ICANN' <ICANN@adlercolvin.com<mailto:ICANN@adlercolvin.com>>; 'Thomas Rickert' <thomas@rickert.net<mailto:thomas@rickert.net>>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>; acct-staff@icann.org<mailto:acct-staff@icann.org>; 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>> Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11 As Paul noted, the phrase “duly taken in to account” has been in the bylaws for over a decade. It is not part of our Recommendation 11 changes, which are designed to reserve the board’s obligation to “try to find a mutually acceptable solution” ONLY for GAC advice that is approved without a formal objection from any country. I don’t think our lawyers have made a strong case that we must change our Rec 11 to modify exiting bylaws to resolve any pre-existing ambiguity. The rest of the lawyers advice is helpful in confirming our understanding that there is no meaningful distinction between' voting’ and ‘determining to take an action’. And our lawyers have confirmed what I understood to be the process that would result from our Rec 11 text. Highlighted below ) Below I have pasted the lawyer’s memo so it again part of this thread. From Holly and Rosemary: 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 Governmental 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. From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of "Gregory, Holly" <holly.gregory@sidley.com<mailto:holly.gregory@sidley.com>> Date: Monday, January 25, 2016 at 9:46 AM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>, 'Malcolm Hutty' <malcolm@linx.net<mailto:malcolm@linx.net>>, 'Greg Shatan' <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Cc: 'ICANN' <ICANN@adlercolvin.com<mailto:ICANN@adlercolvin.com>>, 'Thomas Rickert' <thomas@rickert.net<mailto:thomas@rickert.net>>, "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>, ACCT-Staff <acct-staff@icann.org<mailto:acct-staff@icann.org>>, 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>> Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11 Dear All, We were asked whether the current bylaw language "duly taken into account" is ambiguous. We concluded that it is ambiguous and that, especially when read in the context of the remaining language of the bylaw provision requiring a specific process should the Board not follow GAC advice, the language is susceptible to an interpretation that many of you do not support (as apparent in the many emails our comment generated). Since it is ambiguous, it is also subject to other interpretations. We have no position on the substantive issue of what impact GAC advice should have. We recommend that work be undertaken to remove the ambiguity. Kind regards, Holly Sent with Good (www.good.com<http://www.good.com>) ________________________________ From: Paul Rosenzweig Sent: Monday, January 25, 2016 08:09:13 AM To: 'Malcolm Hutty'; 'Greg Shatan' Cc: 'ICANN'; 'Thomas Rickert'; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>; acct-staff@icann.org<mailto:acct-staff@icann.org>; Sidley ICANN CCWG; Greeley, Amy E.; Grapsas, Rebecca Subject: RE: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11 Weighing back in, a few more thoughts: First, the "duly taken into account" language has been in the bylaws for quite some time -- and it has been implemented in taking GAC advice into account (or not) over that time without causing any appreciable problem. Second, changing, "taken into account" to interpret it as "not act inconsistently" is a substantive change in the standard to be applied by the Board in considering the GAC advice and, as Malcolm points out, would have second order effects on an IRP review of the Board's actions in ways that are likely to be confusing. Third, without doubt, the idea of "not act inconsistently" gives greater privilege to GAC advice than it currently has. For these reasons, I believe that, notwithstanding my great respect for the Sidley -Adler team, we should reject this reinterpretation. If they remain convinced that "duly taken into account" is too ambiguous for a bylaw (notwithstanding its provenance over the years) and that the phrase must be changed then the reasonable options are words like "considered" or "reviewed" or such ... Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key -----Original Message----- From: Malcolm Hutty [mailto:malcolm@linx.net] Sent: Monday, January 25, 2016 4:57 AM To: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>; Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Cc: ICANN <ICANN@adlercolvin.com<mailto:ICANN@adlercolvin.com>>; Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>; acct-staff@icann.org<mailto:acct-staff@icann.org>; 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>> Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11 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. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd Monument Place, 24 Monument Street, London EC3R 8AJ Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA **************************************************************************************************** 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. ****************************************************************************************************
Finally dug out of the blizzard of snow and now wading through the blizzard of email. Sounds like the “duly taken into account” thread has run its course, but “duly considered” is what we mean so why not just say it? Cheers, Ken From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Jorge.Cancio@bakom.admin.ch Sent: Tuesday, January 26, 2016 3:07 AM To: paul.rosenzweig@redbranchconsulting.com; sdelbianco@netchoice.org; holly.gregory@sidley.com; malcolm@linx.net; gregshatanipc@gmail.com Cc: ICANN@adlercolvin.com; thomas@rickert.net; accountability-cross-community@icann.org; acct-staff@icann.org; sidleyicannccwg@sidley.com; AGreeley@sidley.com; rebecca.grapsas@sidley.com Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11 That seems sensible – don’t fix it if it ain’t broken, right? Regards Jorge Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Paul Rosenzweig Gesendet: Montag, 25. Januar 2016 17:07 An: 'Steve DelBianco' <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>; 'Gregory, Holly' <holly.gregory@sidley.com<mailto:holly.gregory@sidley.com>>; 'Malcolm Hutty' <malcolm@linx.net<mailto:malcolm@linx.net>>; 'Greg Shatan' <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Cc: 'ICANN' <ICANN@adlercolvin.com<mailto:ICANN@adlercolvin.com>>; 'Thomas Rickert' <thomas@rickert.net<mailto:thomas@rickert.net>>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>; acct-staff@icann.org<mailto:acct-staff@icann.org>; '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>> Betreff: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11 +1 with Steve. Still not sure I like Annex 11 as written even, but very much sure that the pre-existing ambiguity can be tolerated, I think .. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key<http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> [cid:image001.png@01D158EF.02940C60]<http://www.rsaconference.com/events/us16?utm_source=signature&utm_medium=ema...> From: Steve DelBianco [mailto:sdelbianco@netchoice.org] Sent: Monday, January 25, 2016 10:08 AM To: Gregory, Holly <holly.gregory@sidley.com<mailto:holly.gregory@sidley.com>>; Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>; 'Malcolm Hutty' <malcolm@linx.net<mailto:malcolm@linx.net>>; 'Greg Shatan' <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Cc: 'ICANN' <ICANN@adlercolvin.com<mailto:ICANN@adlercolvin.com>>; 'Thomas Rickert' <thomas@rickert.net<mailto:thomas@rickert.net>>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>; acct-staff@icann.org<mailto:acct-staff@icann.org>; 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>> Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11 As Paul noted, the phrase “duly taken in to account” has been in the bylaws for over a decade. It is not part of our Recommendation 11 changes, which are designed to reserve the board’s obligation to “try to find a mutually acceptable solution” ONLY for GAC advice that is approved without a formal objection from any country. I don’t think our lawyers have made a strong case that we must change our Rec 11 to modify exiting bylaws to resolve any pre-existing ambiguity. The rest of the lawyers advice is helpful in confirming our understanding that there is no meaningful distinction between' voting’ and ‘determining to take an action’. And our lawyers have confirmed what I understood to be the process that would result from our Rec 11 text. Highlighted below ) Below I have pasted the lawyer’s memo so it again part of this thread. From Holly and Rosemary: 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 Governmental 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. From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of "Gregory, Holly" <holly.gregory@sidley.com<mailto:holly.gregory@sidley.com>> Date: Monday, January 25, 2016 at 9:46 AM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>, 'Malcolm Hutty' <malcolm@linx.net<mailto:malcolm@linx.net>>, 'Greg Shatan' <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Cc: 'ICANN' <ICANN@adlercolvin.com<mailto:ICANN@adlercolvin.com>>, 'Thomas Rickert' <thomas@rickert.net<mailto:thomas@rickert.net>>, "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>, ACCT-Staff <acct-staff@icann.org<mailto:acct-staff@icann.org>>, 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>> Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11 Dear All, We were asked whether the current bylaw language "duly taken into account" is ambiguous. We concluded that it is ambiguous and that, especially when read in the context of the remaining language of the bylaw provision requiring a specific process should the Board not follow GAC advice, the language is susceptible to an interpretation that many of you do not support (as apparent in the many emails our comment generated). Since it is ambiguous, it is also subject to other interpretations. We have no position on the substantive issue of what impact GAC advice should have. We recommend that work be undertaken to remove the ambiguity. Kind regards, Holly Sent with Good (www.good.com<http://www.good.com>) ________________________________ From: Paul Rosenzweig Sent: Monday, January 25, 2016 08:09:13 AM To: 'Malcolm Hutty'; 'Greg Shatan' Cc: 'ICANN'; 'Thomas Rickert'; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>; acct-staff@icann.org<mailto:acct-staff@icann.org>; Sidley ICANN CCWG; Greeley, Amy E.; Grapsas, Rebecca Subject: RE: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11 Weighing back in, a few more thoughts: First, the "duly taken into account" language has been in the bylaws for quite some time -- and it has been implemented in taking GAC advice into account (or not) over that time without causing any appreciable problem. Second, changing, "taken into account" to interpret it as "not act inconsistently" is a substantive change in the standard to be applied by the Board in considering the GAC advice and, as Malcolm points out, would have second order effects on an IRP review of the Board's actions in ways that are likely to be confusing. Third, without doubt, the idea of "not act inconsistently" gives greater privilege to GAC advice than it currently has. For these reasons, I believe that, notwithstanding my great respect for the Sidley -Adler team, we should reject this reinterpretation. If they remain convinced that "duly taken into account" is too ambiguous for a bylaw (notwithstanding its provenance over the years) and that the phrase must be changed then the reasonable options are words like "considered" or "reviewed" or such ... Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key -----Original Message----- From: Malcolm Hutty [mailto:malcolm@linx.net] Sent: Monday, January 25, 2016 4:57 AM To: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>; Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Cc: ICANN <ICANN@adlercolvin.com<mailto:ICANN@adlercolvin.com>>; Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>; acct-staff@icann.org<mailto:acct-staff@icann.org>; 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>> Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11 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. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd Monument Place, 24 Monument Street, London EC3R 8AJ Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA **************************************************************************************************** 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. ****************************************************************************************************
Hello All, With my lawyers hat firmly positioned on top of my head….. I may have misunderstood (and if I have I apologise in advance) but aren’t Holly et al advising that 'not act inconsistently with’ is likely how an IRP panel or a court WOULD interpret the current by-law words? And if so, us rejecting that interpretation isn't really the point. The by-law text will need to be clarified to ensure as far as possible that it is interpreted as we believe it should be. Cheers, Chris Disspain | Chief Executive Officer .au Domain Administration Ltd T: +61 3 8341 4111 | F: +61 3 8341 4112 E: ceo@auda.org.au <mailto:ceo@auda.org.au> | W: www.auda.org.au <http://www.auda.org.au/> auDA – Australia’s Domain Name Administrator Important Notice - This email may contain information which is confidential and/or subject to legal privilege, and is intended for the use of the named addressee only. If you are not the intended recipient, you must not use, disclose or copy any part of this email. If you have received this email by mistake, please notify the sender and delete this message immediately. Please consider the environment before printing this email.
On 26 Jan 2016, at 01:09 , Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote:
Weighing back in, a few more thoughts: First, the "duly taken into account" language has been in the bylaws for quite some time -- and it has been implemented in taking GAC advice into account (or not) over that time without causing any appreciable problem. Second, changing, "taken into account" to interpret it as "not act inconsistently" is a substantive change in the standard to be applied by the Board in considering the GAC advice and, as Malcolm points out, would have second order effects on an IRP review of the Board's actions in ways that are likely to be confusing. Third, without doubt, the idea of "not act inconsistently" gives greater privilege to GAC advice than it currently has.
For these reasons, I believe that, notwithstanding my great respect for the Sidley -Adler team, we should reject this reinterpretation. If they remain convinced that "duly taken into account" is too ambiguous for a bylaw (notwithstanding its provenance over the years) and that the phrase must be changed then the reasonable options are words like "considered" or "reviewed" or such ...
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key
-----Original Message----- From: Malcolm Hutty [mailto:malcolm@linx.net] Sent: Monday, January 25, 2016 4:57 AM To: Greg Shatan <gregshatanipc@gmail.com>; Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> Cc: ICANN <ICANN@adlercolvin.com>; Thomas Rickert <thomas@rickert.net>; accountability-cross-community@icann.org; acct-staff@icann.org; Sidley ICANN CCWG <sidleyicannccwg@sidley.com>; Greeley, Amy E. <AGreeley@sidley.com>; Grapsas, Rebecca <rebecca.grapsas@sidley.com> Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11
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.
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd Monument Place, 24 Monument Street, London EC3R 8AJ
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
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A number of people have commented about the role of the ombudsman with some of the suggested changes. Bruce Tonkin has commented in some detail which is very helpful. The office of the ICANN ombudsman, subscribes to the standards of ombuds practice as outlined by the International Ombudsman Association. I have extracted from the website the following description of what we do and do not do https://www.ombudsassociation.org/Resources/Frequently-Asked-Questions.aspx Activities and functions most frequently undertaken by an ombudsman include, but are not limited to: * Listens and understands issues while remaining neutral with respect to the facts. The ombudsman doesn’t listen to judge or to decide who is right or wrong. The ombudsman listens to understand the issue from the perspective of the individual. This is a critical step in developing options for resolution. * Assists in reframing issues and developing and helping individuals evaluate options. This helps individuals identify the interests of various parties to the issues and helps focus efforts on potential options to meet those interests. * Guides or coaches individuals to deal directly with other parties, including the use of formal resolution resources of the organization. An ombudsman often seeks to help individuals improve their skill and their confidence in giving voice to their concerns directly. * Refers individuals to appropriate resolution resources. An ombudsman may refer individuals to one or more formal organizational resources that can potentially resolve the issue. * Assists in surfacing issues to formal resolution channels. When an individual is unable or unwilling to surface a concern directly, the ombudsman can assist by helping give voice to the concern and /or creating an awareness of the issue among appropriate decision-makers in the organization. * Facilitates informal resolution processes. An ombudsman may help to resolve issues between parties through various types of informal mediation. * Identifies new issues and opportunities for systemic change for the organization. The unique positioning of the ombudsman serves to provide unfiltered information that can produce insight to issues and resolutions. The ombudsman is a source of detection and early warning of new issues and a source of suggestions of systemic change to improve existing processes. What an ombudsman does not do: * Because of the informal, neutral, confidential and independent positioning of an ombudsman in an organization, they typically do not undertake the following roles or activities: * Participate in formal investigations or play any role in a formal issue resolution process * Serve in any other organizational role that would compromise the neutrality of the ombudsman role * Receive notice for the organization * Make binding decisions or mandate policies * Create or maintain records or reports for the organization It is important to note that this is a suggested list and not an exhaustive list. Over the 12 years of the ICANN ombudsman, my predecessor and I have attempted to use the IOA guidelines for best practice within the office. It is worth noting that we consistently have declined to act as an appeal authority, but have only sought to look at the issue of whether a decision has been fair. This means that while the decision may not be something which we would support on an appeal basis, if the process has been fair, then we would not interfere with the decision or criticise what has been done. Of course, it is conceivable that a decision could be so outrageously wrong that it could become unfair. That is however a very unlikely event given the checks and balances before decisions are generally made within the ICANN community. As to the resources to evaluate a reconsideration request, if the ombudsman was looking at these on the same basis as dealt with historically, then I would be looking at the fairness of the decision, but would not seek to review the logic or legal basis for the decision. There is nothing wrong in principle with giving the ombudsman a wider role in reviewing a reconsideration request, but there certainly would be a need for resources to evaluate complex reconsideration requests. It is difficult to predict the volume of reconsideration requests, now that the new gTLD program is largely completed. Before this programme, reconsideration requests were relatively rare, and I suspect that this will revert to a much lower volume of requests looking forward. However if my office was to receive reconsideration requests then I would will try to facilitate resolution by informal processes in any event including shuttle diplomacy and mediation. If this was not successful, any report which I then wrote would need to be restricted to the fairness of the reconsideration decision. If this was the proposal, then that would not need to be any changes to my present bylaw and framework. If there were substantial numbers, then the additional resources would be likely to include a research assistant and possibly more clerical support. But the analysis of the new gTLD reconsideration requests, while involving a substantial amount of time, has been possible within my existing workload. The real issue is what the community wants the ombudsman to do. The essence of the practice of an ombudsman is to ensure that there is fairness within the organisation and community. Sometimes this means we try to ensure the parties open communication and resolve the issue themselves. When this is not possible we recommend, but it would be unusual for an ombudsman to have the power to compel some action, and possibly inconsistent with the IOA standards. I hope this places the comments in context, but would be happy to engage in discussion of the working group finds this necessary. Regards Chris LaHatte Ombudsman Blog https://omblog.icann.org/ Webpage http://www.icann.org/en/help/ombudsman For feedback on how I am doing http://www.icannombudsman.feedback/ Confidentiality All matters brought before the Ombudsman shall be treated as confidential. The Ombudsman shall also take all reasonable steps necessary to preserve the privacy of, and to avoid harm to, those parties not involved in the complaint being investigated by the Ombudsman.The Ombudsman shall only make inquiries about, or advise staff or Board members of the existence and identity of, a complainant in order to further the resolution of the complaint. The Ombudsman shall take all reasonable steps necessary to ensure that if staff and Board members are made aware of the existence and identity of a complainant, they agree to maintain the confidential nature of such information, except as necessary to further the resolution of a complaint.
Nigel, Thank you for the examples May you advise which court and on what occation and what date such an intresting views made by judge in that court. Regards Kavouss 2016-01-26 2:48 GMT+01:00 Chris LaHatte <chris.lahatte@icann.org>:
A number of people have commented about the role of the ombudsman with some of the suggested changes. Bruce Tonkin has commented in some detail which is very helpful. The office of the ICANN ombudsman, subscribes to the standards of ombuds practice as outlined by the International Ombudsman Association. I have extracted from the website the following description of what we do and do not do https://www.ombudsassociation.org/Resources/Frequently-Asked-Questions.aspx
*Activities and functions* most frequently undertaken by an ombudsman include, but are not limited to:
- Listens and understands issues while remaining neutral with respect to the facts. The ombudsman doesn’t listen to judge or to decide who is right or wrong. The ombudsman listens to understand the issue from the perspective of the individual. This is a critical step in developing options for resolution. - Assists in reframing issues and developing and helping individuals evaluate options. This helps individuals identify the interests of various parties to the issues and helps focus efforts on potential options to meet those interests. - Guides or coaches individuals to deal directly with other parties, including the use of formal resolution resources of the organization. An ombudsman often seeks to help individuals improve their skill and their confidence in giving voice to their concerns directly. - Refers individuals to appropriate resolution resources. An ombudsman may refer individuals to one or more formal organizational resources that can potentially resolve the issue. - Assists in surfacing issues to formal resolution channels. When an individual is unable or unwilling to surface a concern directly, the ombudsman can assist by helping give voice to the concern and /or creating an awareness of the issue among appropriate decision-makers in the organization. - Facilitates informal resolution processes. An ombudsman may help to resolve issues between parties through various types of informal mediation. - Identifies new issues and opportunities for systemic change for the organization. The unique positioning of the ombudsman serves to provide unfiltered information that can produce insight to issues and resolutions. The ombudsman is a source of detection and early warning of new issues and a source of suggestions of systemic change to improve existing processes.
*What an ombudsman does not do**:*
- Because of the informal, neutral, confidential and independent positioning of an ombudsman in an organization, they typically do not undertake the following roles or activities: - Participate in formal investigations or play any role in a formal issue resolution process - Serve in any other organizational role that would compromise the neutrality of the ombudsman role - Receive notice for the organization - Make binding decisions or mandate policies - Create or maintain records or reports for the organization
It is important to note that this is a suggested list and not an exhaustive list. Over the 12 years of the ICANN ombudsman, my predecessor and I have attempted to use the IOA guidelines for best practice within the office. It is worth noting that we consistently have declined to act as an appeal authority, but have only sought to look at the issue of whether a decision has been fair. This means that while the decision may not be something which we would support on an appeal basis, if the process has been fair, then we would not interfere with the decision or criticise what has been done. Of course, it is conceivable that a decision could be so outrageously wrong that it could become unfair. That is however a very unlikely event given the checks and balances before decisions are generally made within the ICANN community.
As to the resources to evaluate a reconsideration request, if the ombudsman was looking at these on the same basis as dealt with historically, then I would be looking at the fairness of the decision, but would not seek to review the logic or legal basis for the decision.
There is nothing wrong in principle with giving the ombudsman a wider role in reviewing a reconsideration request, but there certainly would be a need for resources to evaluate complex reconsideration requests. It is difficult to predict the volume of reconsideration requests, now that the new gTLD program is largely completed. Before this programme, reconsideration requests were relatively rare, and I suspect that this will revert to a much lower volume of requests looking forward. However if my office was to receive reconsideration requests then I would will try to facilitate resolution by informal processes in any event including shuttle diplomacy and mediation. If this was not successful, any report which I then wrote would need to be restricted to the fairness of the reconsideration decision. If this was the proposal, then that would not need to be any changes to my present bylaw and framework. If there were substantial numbers, then the additional resources would be likely to include a research assistant and possibly more clerical support. But the analysis of the new gTLD reconsideration requests, while involving a substantial amount of time, has been possible within my existing workload. The real issue is what the community wants the ombudsman to do.
The essence of the practice of an ombudsman is to ensure that there is fairness within the organisation and community. Sometimes this means we try to ensure the parties open communication and resolve the issue themselves. When this is not possible we recommend, but it would be unusual for an ombudsman to have the power to compel some action, and possibly inconsistent with the IOA standards.
I hope this places the comments in context, but would be happy to engage in discussion of the working group finds this necessary.
Regards
Chris LaHatte
Ombudsman
Blog https://omblog.icann.org/
Webpage http://www.icann.org/en/help/ombudsman
For feedback on how I am doing http://www.icannombudsman.feedback/
Confidentiality
All matters brought before the Ombudsman shall be treated as confidential. The Ombudsman shall also take all reasonable steps necessary to preserve the privacy of, and to avoid harm to, those parties not involved in the complaint being investigated by the Ombudsman.The Ombudsman shall only make inquiries about, or advise staff or Board members of the existence and identity of, a complainant in order to further the resolution of the complaint. The Ombudsman shall take all reasonable steps necessary to ensure that if staff and Board members are made aware of the existence and identity of a complainant, they agree to maintain the confidential nature of such information, except as necessary to further the resolution of a complaint.
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear All, Perhaps people totally forgotten that NO IRP SHALL BE INVOKED BY THE COMMUNITY. FOR GAC ADVICE. This has been discussed and confirmed .pls refer ti WP 2 and CCWG previous NOTES and REPORTS Regards Kavouss Sent from my iPhone
On 25 Jan 2016, at 10:57, Malcolm Hutty <malcolm@linx.net> wrote:
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.
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd Monument Place, 24 Monument Street, London EC3R 8AJ
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Kavouss No IRP will review GAC advice. But the community did agree (overwhelmingly) that IRP review would apply to Board decisions in response to GAC advice, which is, of course, exactly what Malcolm posits ... Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key -----Original Message----- From: Kavouss Arasteh [mailto:kavouss.arasteh@gmail.com] Sent: Monday, January 25, 2016 9:45 AM To: Malcolm Hutty <malcolm@linx.net> Cc: Greg Shatan <gregshatanipc@gmail.com>; Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; ICANN <ICANN@adlercolvin.com>; Thomas Rickert <thomas@rickert.net>; accountability-cross-community@icann.org; acct-staff@icann.org; Sidley ICANN CCWG <sidleyicannccwg@sidley.com>; Greeley, Amy E. <AGreeley@sidley.com>; Grapsas, Rebecca <rebecca.grapsas@sidley.com> Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11 Dear All, Perhaps people totally forgotten that NO IRP SHALL BE INVOKED BY THE COMMUNITY. FOR GAC ADVICE. This has been discussed and confirmed .pls refer ti WP 2 and CCWG previous NOTES and REPORTS Regards Kavouss Sent from my iPhone
On 25 Jan 2016, at 10:57, Malcolm Hutty <malcolm@linx.net> wrote:
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.
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd Monument Place, 24 Monument Street, London EC3R 8AJ
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Sir, Yes , if and only if the Board,s decision is INCONSISTENT with or in violation of Bylaws?!!!! Regards Kavouss Sent from my iPhone
On 25 Jan 2016, at 15:48, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote:
Dear Kavouss
No IRP will review GAC advice. But the community did agree (overwhelmingly) that IRP review would apply to Board decisions in response to GAC advice, which is, of course, exactly what Malcolm posits ...
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key
-----Original Message----- From: Kavouss Arasteh [mailto:kavouss.arasteh@gmail.com] Sent: Monday, January 25, 2016 9:45 AM To: Malcolm Hutty <malcolm@linx.net> Cc: Greg Shatan <gregshatanipc@gmail.com>; Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; ICANN <ICANN@adlercolvin.com>; Thomas Rickert <thomas@rickert.net>; accountability-cross-community@icann.org; acct-staff@icann.org; Sidley ICANN CCWG <sidleyicannccwg@sidley.com>; Greeley, Amy E. <AGreeley@sidley.com>; Grapsas, Rebecca <rebecca.grapsas@sidley.com> Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11
Dear All, Perhaps people totally forgotten that NO IRP SHALL BE INVOKED BY THE COMMUNITY. FOR GAC ADVICE. This has been discussed and confirmed .pls refer ti WP 2 and CCWG previous NOTES and REPORTS Regards Kavouss
Sent from my iPhone
On 25 Jan 2016, at 10:57, Malcolm Hutty <malcolm@linx.net> wrote:
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.
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd Monument Place, 24 Monument Street, London EC3R 8AJ
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Kavous If and only if the person materially being affected by the Board decision makes a colorable allegation that the Board's actions are inconsistent with the bylaws .... Whether or not they are actually inconsistent is for the IRP to decide, in the end ... Cheers Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key -----Original Message----- From: Kavouss Arasteh [mailto:kavouss.arasteh@gmail.com] Sent: Monday, January 25, 2016 9:55 AM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> Cc: Malcolm Hutty <malcolm@linx.net>; Greg Shatan <gregshatanipc@gmail.com>; ICANN <ICANN@adlercolvin.com>; Thomas Rickert <thomas@rickert.net>; <accountability-cross-community@icann.org> <accountability-cross-community@icann.org>; <acct-staff@icann.org> <acct-staff@icann.org>; Sidley ICANN CCWG <sidleyicannccwg@sidley.com>; Greeley, Amy E. <AGreeley@sidley.com>; Grapsas, Rebecca <rebecca.grapsas@sidley.com> Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11 Dear Sir, Yes , if and only if the Board,s decision is INCONSISTENT with or in violation of Bylaws?!!!! Regards Kavouss Sent from my iPhone
On 25 Jan 2016, at 15:48, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote:
Dear Kavouss
No IRP will review GAC advice. But the community did agree (overwhelmingly) that IRP review would apply to Board decisions in response to GAC advice, which is, of course, exactly what Malcolm posits ...
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key
-----Original Message----- From: Kavouss Arasteh [mailto:kavouss.arasteh@gmail.com] Sent: Monday, January 25, 2016 9:45 AM To: Malcolm Hutty <malcolm@linx.net> Cc: Greg Shatan <gregshatanipc@gmail.com>; Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; ICANN <ICANN@adlercolvin.com>; Thomas Rickert <thomas@rickert.net>; accountability-cross-community@icann.org; acct-staff@icann.org; Sidley ICANN CCWG <sidleyicannccwg@sidley.com>; Greeley, Amy E. <AGreeley@sidley.com>; Grapsas, Rebecca <rebecca.grapsas@sidley.com> Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11
Dear All, Perhaps people totally forgotten that NO IRP SHALL BE INVOKED BY THE COMMUNITY. FOR GAC ADVICE. This has been discussed and confirmed .pls refer ti WP 2 and CCWG previous NOTES and REPORTS Regards Kavouss
Sent from my iPhone
On 25 Jan 2016, at 10:57, Malcolm Hutty <malcolm@linx.net> wrote:
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.
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd Monument Place, 24 Monument Street, London EC3R 8AJ
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Paul Then that allegation against ICANN , decision should go trough all steps of process. I do not believe that an individual should simply make an allegation to the Board, s decision without passing through an established procedure otherwise tens of allegations called for every day .that was not the objectives of IRP.Such inefficient course of action would totally counterproductive and detriment to the healthy process of ICANN works Regards Kavouss Sent from my iPhone
On 25 Jan 2016, at 16:22, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote:
Dear Kavous
If and only if the person materially being affected by the Board decision makes a colorable allegation that the Board's actions are inconsistent with the bylaws .... Whether or not they are actually inconsistent is for the IRP to decide, in the end ...
Cheers Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key
-----Original Message----- From: Kavouss Arasteh [mailto:kavouss.arasteh@gmail.com] Sent: Monday, January 25, 2016 9:55 AM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> Cc: Malcolm Hutty <malcolm@linx.net>; Greg Shatan <gregshatanipc@gmail.com>; ICANN <ICANN@adlercolvin.com>; Thomas Rickert <thomas@rickert.net>; <accountability-cross-community@icann.org> <accountability-cross-community@icann.org>; <acct-staff@icann.org> <acct-staff@icann.org>; Sidley ICANN CCWG <sidleyicannccwg@sidley.com>; Greeley, Amy E. <AGreeley@sidley.com>; Grapsas, Rebecca <rebecca.grapsas@sidley.com> Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11
Dear Sir, Yes , if and only if the Board,s decision is INCONSISTENT with or in violation of Bylaws?!!!! Regards Kavouss
Sent from my iPhone
On 25 Jan 2016, at 15:48, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote:
Dear Kavouss
No IRP will review GAC advice. But the community did agree (overwhelmingly) that IRP review would apply to Board decisions in response to GAC advice, which is, of course, exactly what Malcolm posits ...
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key
-----Original Message----- From: Kavouss Arasteh [mailto:kavouss.arasteh@gmail.com] Sent: Monday, January 25, 2016 9:45 AM To: Malcolm Hutty <malcolm@linx.net> Cc: Greg Shatan <gregshatanipc@gmail.com>; Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; ICANN <ICANN@adlercolvin.com>; Thomas Rickert <thomas@rickert.net>; accountability-cross-community@icann.org; acct-staff@icann.org; Sidley ICANN CCWG <sidleyicannccwg@sidley.com>; Greeley, Amy E. <AGreeley@sidley.com>; Grapsas, Rebecca <rebecca.grapsas@sidley.com> Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11
Dear All, Perhaps people totally forgotten that NO IRP SHALL BE INVOKED BY THE COMMUNITY. FOR GAC ADVICE. This has been discussed and confirmed .pls refer ti WP 2 and CCWG previous NOTES and REPORTS Regards Kavouss
Sent from my iPhone
On 25 Jan 2016, at 10:57, Malcolm Hutty <malcolm@linx.net> wrote:
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.
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd Monument Place, 24 Monument Street, London EC3R 8AJ
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Avri. I disagree with you that the term " with due respect " is an insult. Hundreds of time all top level people used that to say, while I fully respect you, nevertheless, I do not agree with you on this particular topic. This is a diplomatic language to avoid misinterpretation of grieving somebody I do not know what is the basis of your interpretation Regards Kavouss 2016-01-25 16:34 GMT+01:00 Kavouss Arasteh <kavouss.arasteh@gmail.com>:
Dear Paul Then that allegation against ICANN , decision should go trough all steps of process. I do not believe that an individual should simply make an allegation to the Board, s decision without passing through an established procedure otherwise tens of allegations called for every day .that was not the objectives of IRP.Such inefficient course of action would totally counterproductive and detriment to the healthy process of ICANN works Regards Kavouss
Sent from my iPhone
On 25 Jan 2016, at 16:22, Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com> wrote:
Dear Kavous
If and only if the person materially being affected by the Board decision makes a colorable allegation that the Board's actions are inconsistent with the bylaws .... Whether or not they are actually inconsistent is for the IRP to decide, in the end ...
Cheers Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key
-----Original Message----- From: Kavouss Arasteh [mailto:kavouss.arasteh@gmail.com] Sent: Monday, January 25, 2016 9:55 AM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> Cc: Malcolm Hutty <malcolm@linx.net>; Greg Shatan < gregshatanipc@gmail.com>; ICANN <ICANN@adlercolvin.com>; Thomas Rickert <thomas@rickert.net>; <accountability-cross-community@icann.org> <accountability-cross-community@icann.org>; <acct-staff@icann.org> <acct-staff@icann.org>; Sidley ICANN CCWG <sidleyicannccwg@sidley.com>; Greeley, Amy E. <AGreeley@sidley.com>; Grapsas, Rebecca <rebecca.grapsas@sidley.com> Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11
Dear Sir, Yes , if and only if the Board,s decision is INCONSISTENT with or in violation of Bylaws?!!!! Regards Kavouss
Sent from my iPhone
On 25 Jan 2016, at 15:48, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote:
Dear Kavouss
No IRP will review GAC advice. But the community did agree (overwhelmingly) that IRP review would apply to Board decisions in response to GAC advice, which is, of course, exactly what Malcolm posits ...
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key
-----Original Message----- From: Kavouss Arasteh [mailto:kavouss.arasteh@gmail.com] Sent: Monday, January 25, 2016 9:45 AM To: Malcolm Hutty <malcolm@linx.net> Cc: Greg Shatan <gregshatanipc@gmail.com>; Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; ICANN <ICANN@adlercolvin.com>; Thomas Rickert <thomas@rickert.net>; accountability-cross-community@icann.org; acct-staff@icann.org; Sidley ICANN CCWG <sidleyicannccwg@sidley.com>; Greeley, Amy E. <AGreeley@sidley.com>; Grapsas, Rebecca <rebecca.grapsas@sidley.com> Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11
Dear All, Perhaps people totally forgotten that NO IRP SHALL BE INVOKED BY THE COMMUNITY. FOR GAC ADVICE. This has been discussed and confirmed .pls refer ti WP 2 and CCWG previous NOTES and REPORTS Regards Kavouss
Sent from my iPhone
On 25 Jan 2016, at 10:57, Malcolm Hutty <malcolm@linx.net> wrote:
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.
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd Monument Place, 24 Monument Street, London EC3R 8AJ
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
In Court, in the UK, it's lawyers code ... here's one vademecum which might assist . . . "With respect" = "Judge, this is wrong" "With great respect" = "Judge, this is a real mistake. The Appeal court will not look on this with favour" "With the greatest of respect" = "Only a pre-law would make such an egregious error as you are about to make" "With the utmost respect" = "You are an idiot". On 25/01/16 15:44, Kavouss Arasteh wrote:
Dear Avri.
I disagree with you that the term " with due respect " is an insult. Hundreds of time all top level people used that to say, while I fully respect you, nevertheless, I do not agree with you on this particular topic.
This is a diplomatic language to avoid misinterpretation of grieving somebody
I do not know what is the basis of your interpretation
Regards
Kavouss
2016-01-25 16:34 GMT+01:00 Kavouss Arasteh <kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com>>:
Dear Paul Then that allegation against ICANN , decision should go trough all steps of process. I do not believe that an individual should simply make an allegation to the Board, s decision without passing through an established procedure otherwise tens of allegations called for every day .that was not the objectives of IRP.Such inefficient course of action would totally counterproductive and detriment to the healthy process of ICANN works Regards Kavouss
Sent from my iPhone
> On 25 Jan 2016, at 16:22, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> wrote: > > Dear Kavous > > > If and only if the person materially being affected by the Board decision > makes a colorable allegation that the Board's actions are inconsistent with > the bylaws .... Whether or not they are actually inconsistent is for the > IRP to decide, in the end ... > > Cheers > Paul > > Paul Rosenzweig > paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@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 > > > > -----Original Message----- > From: Kavouss Arasteh [mailto:kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com>] > Sent: Monday, January 25, 2016 9:55 AM > To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> > Cc: Malcolm Hutty <malcolm@linx.net <mailto:malcolm@linx.net>>; Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>>; > ICANN <ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com>>; Thomas Rickert <thomas@rickert.net <mailto:thomas@rickert.net>>; > <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>>; 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>> > Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11 > > Dear Sir, > Yes , if and only if the Board,s decision is INCONSISTENT with or in > violation of Bylaws?!!!! > Regards > Kavouss > > Sent from my iPhone > >>> On 25 Jan 2016, at 15:48, Paul Rosenzweig >> <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> wrote: >> >> Dear Kavouss >> >> No IRP will review GAC advice. But the community did agree >> (overwhelmingly) that IRP review would apply to Board decisions in >> response to GAC advice, which is, of course, exactly what Malcolm posits > ... >> >> Paul >> >> Paul Rosenzweig >> paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@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 >> >> >> >> -----Original Message----- >> From: Kavouss Arasteh [mailto:kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com>] >> Sent: Monday, January 25, 2016 9:45 AM >> To: Malcolm Hutty <malcolm@linx.net <mailto:malcolm@linx.net>> >> Cc: Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>>; Paul Rosenzweig >> <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>>; ICANN >> <ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com>>; Thomas Rickert <thomas@rickert.net <mailto:thomas@rickert.net>>; >> accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>; acct-staff@icann.org <mailto:acct-staff@icann.org>; 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>> >> Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, >> 10, 11 >> >> Dear All, >> Perhaps people totally forgotten that NO IRP SHALL BE INVOKED BY THE >> COMMUNITY. >> FOR GAC ADVICE. >> This has been discussed and confirmed .pls refer ti WP 2 and CCWG >> previous NOTES and REPORTS Regards Kavouss >> >> Sent from my iPhone >> >>> On 25 Jan 2016, at 10:57, Malcolm Hutty <malcolm@linx.net <mailto:malcolm@linx.net>> wrote: >>> >>> >>> >>>> 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. >>> >>> -- >>> Malcolm Hutty | tel: +44 20 7645 3523 <tel:%2B44%2020%207645%203523> Head of Public >>> Affairs | Read the LINX Public Affairs blog London Internet Exchange >>> | http://publicaffairs.linx.net/ >>> >>> London Internet Exchange Ltd >>> Monument Place, 24 Monument Street, London EC3R 8AJ >>> >>> Company Registered in England No. 3137929 >>> Trinity Court, Trinity Street, Peterborough PE1 1DA >>> >>> >>> _______________________________________________ >>> 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 >
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Dear Kavouss Then, I think y ou have misunderstood the IRP process altogether. It is open to any materially affected party to challenge a Board action as counter to the Bylawas, and most notably the mission. That, indeed, is the single most essential part of the entire accountability process -- a standard of Board conduct and an independent review of that conduct. Without it we have no accountability at all Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key -----Original Message----- From: Kavouss Arasteh [mailto:kavouss.arasteh@gmail.com] Sent: Monday, January 25, 2016 10:34 AM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> Cc: Malcolm Hutty <malcolm@linx.net>; Greg Shatan <gregshatanipc@gmail.com>; ICANN <ICANN@adlercolvin.com>; Thomas Rickert <thomas@rickert.net>; <accountability-cross-community@icann.org> <accountability-cross-community@icann.org>; <acct-staff@icann.org> <acct-staff@icann.org>; Sidley ICANN CCWG <sidleyicannccwg@sidley.com>; Greeley, Amy E. <AGreeley@sidley.com>; Grapsas, Rebecca <rebecca.grapsas@sidley.com> Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11 Dear Paul Then that allegation against ICANN , decision should go trough all steps of process. I do not believe that an individual should simply make an allegation to the Board, s decision without passing through an established procedure otherwise tens of allegations called for every day .that was not the objectives of IRP.Such inefficient course of action would totally counterproductive and detriment to the healthy process of ICANN works Regards Kavouss Sent from my iPhone
On 25 Jan 2016, at 16:22, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote:
Dear Kavous
If and only if the person materially being affected by the Board decision makes a colorable allegation that the Board's actions are inconsistent with the bylaws .... Whether or not they are actually inconsistent is for the IRP to decide, in the end ...
Cheers Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key
-----Original Message----- From: Kavouss Arasteh [mailto:kavouss.arasteh@gmail.com] Sent: Monday, January 25, 2016 9:55 AM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> Cc: Malcolm Hutty <malcolm@linx.net>; Greg Shatan <gregshatanipc@gmail.com>; ICANN <ICANN@adlercolvin.com>; Thomas Rickert <thomas@rickert.net>; <accountability-cross-community@icann.org> <accountability-cross-community@icann.org>; <acct-staff@icann.org> <acct-staff@icann.org>; Sidley ICANN CCWG <sidleyicannccwg@sidley.com>; Greeley, Amy E. <AGreeley@sidley.com>; Grapsas, Rebecca <rebecca.grapsas@sidley.com> Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11
Dear Sir, Yes , if and only if the Board,s decision is INCONSISTENT with or in violation of Bylaws?!!!! Regards Kavouss
Sent from my iPhone
On 25 Jan 2016, at 15:48, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote:
Dear Kavouss
No IRP will review GAC advice. But the community did agree (overwhelmingly) that IRP review would apply to Board decisions in response to GAC advice, which is, of course, exactly what Malcolm posits ...
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key
-----Original Message----- From: Kavouss Arasteh [mailto:kavouss.arasteh@gmail.com] Sent: Monday, January 25, 2016 9:45 AM To: Malcolm Hutty <malcolm@linx.net> Cc: Greg Shatan <gregshatanipc@gmail.com>; Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; ICANN <ICANN@adlercolvin.com>; Thomas Rickert <thomas@rickert.net>; accountability-cross-community@icann.org; acct-staff@icann.org; Sidley ICANN CCWG <sidleyicannccwg@sidley.com>; Greeley, Amy E. <AGreeley@sidley.com>; Grapsas, Rebecca <rebecca.grapsas@sidley.com> Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11
Dear All, Perhaps people totally forgotten that NO IRP SHALL BE INVOKED BY THE COMMUNITY. FOR GAC ADVICE. This has been discussed and confirmed .pls refer ti WP 2 and CCWG previous NOTES and REPORTS Regards Kavouss
Sent from my iPhone
On 25 Jan 2016, at 10:57, Malcolm Hutty <malcolm@linx.net> wrote:
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.
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd Monument Place, 24 Monument Street, London EC3R 8AJ
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Paul. Thank you very much for your kind words and your judgment ?? I have fully understood the entire process as I have been involved in another entity which also applied IRP. Perhaps I was not clear in my previous message. What I said was there should be a process to clearly distinguish between those allegations which merits to be further pursued and those which would not merit. I do not think that the purpose of IRP is that every day tens of allegations based on just a personal judgement of an individual without any valid reasons and without any foundation invoke IRP,unless we create occupation of the panelist and those will get those position .This would give rise to misuse of the IRP. Kavouss 2016-01-25 17:05 GMT+01:00 Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com>:
Dear Kavouss
Then, I think y ou have misunderstood the IRP process altogether. It is open to any materially affected party to challenge a Board action as counter to the Bylawas, and most notably the mission. That, indeed, is the single most essential part of the entire accountability process -- a standard of Board conduct and an independent review of that conduct. Without it we have no accountability at all
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key
-----Original Message----- From: Kavouss Arasteh [mailto:kavouss.arasteh@gmail.com] Sent: Monday, January 25, 2016 10:34 AM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> Cc: Malcolm Hutty <malcolm@linx.net>; Greg Shatan <gregshatanipc@gmail.com
; ICANN <ICANN@adlercolvin.com>; Thomas Rickert <thomas@rickert.net>; <accountability-cross-community@icann.org> <accountability-cross-community@icann.org>; <acct-staff@icann.org> <acct-staff@icann.org>; Sidley ICANN CCWG <sidleyicannccwg@sidley.com>; Greeley, Amy E. <AGreeley@sidley.com>; Grapsas, Rebecca <rebecca.grapsas@sidley.com> Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11
Dear Paul Then that allegation against ICANN , decision should go trough all steps of process. I do not believe that an individual should simply make an allegation to the Board, s decision without passing through an established procedure otherwise tens of allegations called for every day .that was not the objectives of IRP.Such inefficient course of action would totally counterproductive and detriment to the healthy process of ICANN works Regards Kavouss
Sent from my iPhone
On 25 Jan 2016, at 16:22, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote:
Dear Kavous
If and only if the person materially being affected by the Board decision makes a colorable allegation that the Board's actions are inconsistent with the bylaws .... Whether or not they are actually inconsistent is for the IRP to decide, in the end ...
Cheers Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key
-----Original Message----- From: Kavouss Arasteh [mailto:kavouss.arasteh@gmail.com] Sent: Monday, January 25, 2016 9:55 AM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> Cc: Malcolm Hutty <malcolm@linx.net>; Greg Shatan <gregshatanipc@gmail.com>; ICANN <ICANN@adlercolvin.com>; Thomas Rickert <thomas@rickert.net>; <accountability-cross-community@icann.org> <accountability-cross-community@icann.org>; <acct-staff@icann.org> <acct-staff@icann.org>; Sidley ICANN CCWG <sidleyicannccwg@sidley.com>; Greeley, Amy E. <AGreeley@sidley.com>; Grapsas, Rebecca <rebecca.grapsas@sidley.com> Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11
Dear Sir, Yes , if and only if the Board,s decision is INCONSISTENT with or in violation of Bylaws?!!!! Regards Kavouss
Sent from my iPhone
On 25 Jan 2016, at 15:48, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote:
Dear Kavouss
No IRP will review GAC advice. But the community did agree (overwhelmingly) that IRP review would apply to Board decisions in response to GAC advice, which is, of course, exactly what Malcolm posits ...
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key
-----Original Message----- From: Kavouss Arasteh [mailto:kavouss.arasteh@gmail.com] Sent: Monday, January 25, 2016 9:45 AM To: Malcolm Hutty <malcolm@linx.net> Cc: Greg Shatan <gregshatanipc@gmail.com>; Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; ICANN <ICANN@adlercolvin.com>; Thomas Rickert <thomas@rickert.net>; accountability-cross-community@icann.org; acct-staff@icann.org; Sidley ICANN CCWG <sidleyicannccwg@sidley.com>; Greeley, Amy E. <AGreeley@sidley.com>; Grapsas, Rebecca <rebecca.grapsas@sidley.com> Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11
Dear All, Perhaps people totally forgotten that NO IRP SHALL BE INVOKED BY THE COMMUNITY. FOR GAC ADVICE. This has been discussed and confirmed .pls refer ti WP 2 and CCWG previous NOTES and REPORTS Regards Kavouss
Sent from my iPhone
On 25 Jan 2016, at 10:57, Malcolm Hutty <malcolm@linx.net> wrote:
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.
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd Monument Place, 24 Monument Street, London EC3R 8AJ
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_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
On 25/01/2016 16:19, Kavouss Arasteh wrote:
What I said was there should be a process to clearly distinguish between those allegations which merits to be further pursued and those which would not merit.
I do not think that the purpose of IRP is that every day tens of allegations based on just a personal judgement of an individual without any valid reasons and without any foundation invoke IRP,unless we create occupation of the panelist and those will get those position .This would give rise to misuse of the IRP.
I quite agree. We agreed from a very early stage, I believe, that the IRP would be empowered to dismiss expeditiously any frivioulous or vexatious claims or those without any reasonable prospect of success, before the review is fully engaged. Nobody wants or expects the IRP to be holding its intense reviews on poorly founded claims. Those that have been through the IRP process before will tell you that it is a very serious and involved process, not to mention an expensive one, so I do not think we will face the problem you describe. Nonetheless, the IRP will be empowered to deal with it, whenever misuse appears. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd Monument Place, 24 Monument Street, London EC3R 8AJ Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
Dear Malcolm Tks Moreover,a slew of IRP challenges that have little actual merit from a legal perspective, placing the IRP panel (which may be comprised of persons without significant public policy understanding) in a position of arbitrating a wide range of issues that may be driven by divergent interests that have little relevance to the subject. Regards Kavouss 2016-01-25 17:27 GMT+01:00 Malcolm Hutty <malcolm@linx.net>:
On 25/01/2016 16:19, Kavouss Arasteh wrote:
What I said was there should be a process to clearly distinguish between those allegations which merits to be further pursued and those which would not merit.
I do not think that the purpose of IRP is that every day tens of allegations based on just a personal judgement of an individual without any valid reasons and without any foundation invoke IRP,unless we create occupation of the panelist and those will get those position .This would give rise to misuse of the IRP.
I quite agree. We agreed from a very early stage, I believe, that the IRP would be empowered to dismiss expeditiously any frivioulous or vexatious claims or those without any reasonable prospect of success, before the review is fully engaged. Nobody wants or expects the IRP to be holding its intense reviews on poorly founded claims.
Those that have been through the IRP process before will tell you that it is a very serious and involved process, not to mention an expensive one, so I do not think we will face the problem you describe. Nonetheless, the IRP will be empowered to deal with it, whenever misuse appears.
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd Monument Place, 24 Monument Street, London EC3R 8AJ
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
Dear Malcolm Once again thanks for the explanations .I hope Paul is now convinced that we should comply with what we have envisaged to immediately dismiss any Feriviouls, Vexatious or Unfounded allégations( WITHOUT REASONABLE PROSPECT ) are made. Regards Kavouss 2016-01-25 17:34 GMT+01:00 Kavouss Arasteh <kavouss.arasteh@gmail.com>:
Dear Malcolm Tks Moreover,a slew of IRP challenges that have little actual merit from a legal perspective, placing the IRP panel (which may be comprised of persons without significant public policy understanding) in a position of arbitrating a wide range of issues that may be driven by divergent interests that have little relevance to the subject. Regards Kavouss
2016-01-25 17:27 GMT+01:00 Malcolm Hutty <malcolm@linx.net>:
On 25/01/2016 16:19, Kavouss Arasteh wrote:
What I said was there should be a process to clearly distinguish between those allegations which merits to be further pursued and those which would not merit.
I do not think that the purpose of IRP is that every day tens of allegations based on just a personal judgement of an individual without any valid reasons and without any foundation invoke IRP,unless we create occupation of the panelist and those will get those position .This would give rise to misuse of the IRP.
I quite agree. We agreed from a very early stage, I believe, that the IRP would be empowered to dismiss expeditiously any frivioulous or vexatious claims or those without any reasonable prospect of success, before the review is fully engaged. Nobody wants or expects the IRP to be holding its intense reviews on poorly founded claims.
Those that have been through the IRP process before will tell you that it is a very serious and involved process, not to mention an expensive one, so I do not think we will face the problem you describe. Nonetheless, the IRP will be empowered to deal with it, whenever misuse appears.
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd Monument Place, 24 Monument Street, London EC3R 8AJ
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
Of course we should Kavous … Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> Link to my PGP Key <http://www.rsaconference.com/events/us16?utm_source=signature&utm_medium=ema...> From: Kavouss Arasteh [mailto:kavouss.arasteh@gmail.com] Sent: Monday, January 25, 2016 11:41 AM To: Malcolm Hutty <malcolm@linx.net> Cc: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; Greg Shatan <gregshatanipc@gmail.com>; ICANN <ICANN@adlercolvin.com>; Thomas Rickert <thomas@rickert.net>; accountability-cross-community@icann.org; acct-staff@icann.org; Sidley ICANN CCWG <sidleyicannccwg@sidley.com>; Greeley, Amy E. <AGreeley@sidley.com>; Grapsas, Rebecca <rebecca.grapsas@sidley.com> Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11 Dear Malcolm Once again thanks for the explanations .I hope Paul is now convinced that we should comply with what we have envisaged to immediately dismiss any Feriviouls, Vexatious or Unfounded allégations( WITHOUT REASONABLE PROSPECT ) are made. Regards Kavouss 2016-01-25 17:34 GMT+01:00 Kavouss Arasteh <kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com> >: Dear Malcolm Tks Moreover,a slew of IRP challenges that have little actual merit from a legal perspective, placing the IRP panel (which may be comprised of persons without significant public policy understanding) in a position of arbitrating a wide range of issues that may be driven by divergent interests that have little relevance to the subject. Regards Kavouss 2016-01-25 17:27 GMT+01:00 Malcolm Hutty <malcolm@linx.net <mailto:malcolm@linx.net> >: On 25/01/2016 16:19, Kavouss Arasteh wrote:
What I said was there should be a process to clearly distinguish between those allegations which merits to be further pursued and those which would not merit.
I do not think that the purpose of IRP is that every day tens of allegations based on just a personal judgement of an individual without any valid reasons and without any foundation invoke IRP,unless we create occupation of the panelist and those will get those position .This would give rise to misuse of the IRP.
I quite agree. We agreed from a very early stage, I believe, that the IRP would be empowered to dismiss expeditiously any frivioulous or vexatious claims or those without any reasonable prospect of success, before the review is fully engaged. Nobody wants or expects the IRP to be holding its intense reviews on poorly founded claims. Those that have been through the IRP process before will tell you that it is a very serious and involved process, not to mention an expensive one, so I do not think we will face the problem you describe. Nonetheless, the IRP will be empowered to deal with it, whenever misuse appears. -- Malcolm Hutty | tel: +44 20 7645 3523 <tel:%2B44%2020%207645%203523> Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd Monument Place, 24 Monument Street, London EC3R 8AJ Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
Apologies, I just noted two small typos in our Annex 11 comment. A clean corrected version of that comment follows; below that, in the original email, I have marked the corrections in redline. Please use the clean version. 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 Governmental 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 below applies. 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, if 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. From: Holly Gregory Sent: Sunday, January 24, 2016 4:24 AM To: 'Mathieu Weill'; 'thomas@rickert.net'; 'León Felipe Sánchez Ambía'; 'accountability-cross-community@icann.org'; 'acct-staff@icann.org' Cc: Sidley ICANN CCWG; ICANN-Adler; Grapsas, Rebecca; Greeley, Amy E. Subject: 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 Governmental 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 appliesy. 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, if 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 holly.gregory@sidley.com<mailto:holly.gregory@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. ****************************************************************************************************
From Holly Gregory and Rosemary Fei: Dear CCWG-ACCT Co-Chairs, Members, Participants and ICANN Staff, Attached please find comments from Sidley and Adler on the Final Draft of Annex 1 (Inspection Rights). Please note that we will give it one more review when we review the entire draft of the CCWG Proposal in close to final form. 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 holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> **************************************************************************************************** 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. ****************************************************************************************************
Thanks for this. It looks great. ---------------------------------------- From: "Grapsas, Rebecca" <rebecca.grapsas@sidley.com> Sent: Tuesday, January 26, 2016 4:24 PM To: "Mathieu Weill" <mathieu.weill@afnic.fr>, "thomas@rickert.net" <thomas@rickert.net>, "León Felipe Sánchez Ambía" <leonfelipe@sanchez.mx>, "accountability-cross-community@icann.org" <accountability-cross-community@icann.org>, "acct-staff@icann.org" <acct-staff@icann.org>, "Bernard Turcotte" <turcotte.bernard@gmail.com> Cc: "Sidley ICANN CCWG" <sidleyicannccwg@sidley.com>, "Greeley, Amy E." <AGreeley@sidley.com>, "ICANN@adlercolvin.com" <ICANN@adlercolvin.com> Subject: [CCWG-ACCT] Lawyers' Comments on Annex 1 (Inspection Rights)
From Holly Gregory and Rosemary Fei:
Dear CCWG-ACCT Co-Chairs, Members, Participants and ICANN Staff, Attached please find comments from Sidley and Adler on the Final Draft of Annex 1 (Inspection Rights). Please note that we will give it one more review when we review the entire draft of the CCWG Proposal in close to final form. 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 holly.gregory@sidley.com **************************************************************************************************** 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. ****************************************************************************************************
Dear CCWG-ACCT Co-Chairs, Members, Participants and ICANN Staff, Attached please find detailed comments from Sidley and Adler on drafts of Annexes 4 (Community IRP & Separation Power) and 7 (Scope of IRP) . For your convenience, in addition to our comments we have attached the drafts that we are commenting on. Please note that while we are providing detailed comments on the Annexes on a rolling basis, we should have the opportunity to review the entire draft of the CCWG Proposal in full when it is in closer to final form. 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 holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> **************************************************************************************************** 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. ****************************************************************************************************
Holly, Thanks for this. Could we ask you to shorten the file names for your documents as they are being truncated for being too long and then end up being similar to your other submissions which were also truncated. As a suggestion would *CCWG-Annex4and7comments-SidelyAdler* or something of similar length. Thanks B. On Fri, Jan 22, 2016 at 10:54 PM, Gregory, Holly <holly.gregory@sidley.com> wrote:
Dear CCWG-ACCT Co-Chairs, Members, Participants and ICANN Staff,
Attached please find detailed comments from Sidley and Adler on drafts of Annexes 4 (Community IRP & Separation Power) and 7 (Scope of IRP) .
For your convenience, in addition to our comments we have attached the drafts that we are commenting on.
Please note that while we are providing detailed comments on the Annexes on a rolling basis, we should have the opportunity to review the entire draft of the CCWG Proposal in full when it is in closer to final form.
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 holly.gregory@sidley.com
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Will do. Thanks Bernie! Sent with Good (www.good.com) ________________________________ From: Bernard Turcotte Sent: Saturday, January 23, 2016 10:23:01 AM To: Gregory, Holly Cc: Mathieu Weill; thomas@rickert.net; León Felipe Sánchez Ambía; accountability-cross-community@icann.org; acct-staff@icann.org; Sidley ICANN CCWG; Greeley, Amy E.; Grapsas, Rebecca; ICANN@adlercolvin.com Subject: Re: [CCWG-ACCT] Lawyers' Comments on Annexes 4 (Community IRP & Separation Power) and 7 (Scope of IRP) Holly, Thanks for this. Could we ask you to shorten the file names for your documents as they are being truncated for being too long and then end up being similar to your other submissions which were also truncated. As a suggestion would CCWG-Annex4and7comments-SidelyAdler or something of similar length. Thanks B. On Fri, Jan 22, 2016 at 10:54 PM, Gregory, Holly <holly.gregory@sidley.com<mailto:holly.gregory@sidley.com>> wrote: Dear CCWG-ACCT Co-Chairs, Members, Participants and ICANN Staff, Attached please find detailed comments from Sidley and Adler on drafts of Annexes 4 (Community IRP & Separation Power) and 7 (Scope of IRP) . For your convenience, in addition to our comments we have attached the drafts that we are commenting on. Please note that while we are providing detailed comments on the Annexes on a rolling basis, we should have the opportunity to review the entire draft of the CCWG Proposal in full when it is in closer to final form. 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> **************************************************************************************************** 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<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMFaQ&c=Od00qP2XTg0tXf_H69-T2w&r=AKn_gzAS4ANpCEqx2GjPwjUkqYPHaN7m0NQNyfQXAgk&m=jqxIL6omuNoeJg07RRFUqg-PUMefCIsjjQuDcmD-zgU&s=lqH_qyLmQvgDIaCgnbIDwxuEy-yqp2Js9GsmJW6Aozw&e=>
participants (32)
-
Aarti Bhavana -
Andrew Sullivan -
Avri Doria -
Bernard Turcotte -
Chris Disspain -
Chris LaHatte -
Dr Eberhard W Lisse -
Dr Eberhard W Lisse -
Edward Morris -
Grapsas, Rebecca -
Greg Shatan -
Gregory, Holly -
Izumi Okutani -
Jordan Carter -
Jorge.Cancio＠bakom.admin.ch -
Kavouss Arasteh -
León Felipe Sánchez Ambía -
Malcolm Hutty -
Martin Boyle -
Matthew Shears -
McAuley, David -
Mueller, Milton L -
Nigel Roberts -
Paul Rosenzweig -
Robin Gross -
Roelof Meijer -
Rosemary E. Fei -
Salaets, Ken -
Schaefer, Brett -
Seun Ojedeji -
Steve DelBianco -
Tijani BEN JEMAA