While not able to certify anything, if there are issues that our counsel see I think its important that they are raised. -James 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: Wednesday 6 July 2016 at 20:32 To: Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>, Mathieu Weill <mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>>, "leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>" <leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>>, Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>, Bernard Turcotte <turcotte.bernard@gmail.com<mailto:turcotte.bernard@gmail.com>> Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC) Dear Co-Chairs and CCWG-Accountability Members and Participants, Please let us know if you want Sidley and/or Adler to comment on this before you post it. We will not do so unless instructed to. 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.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Bernard Turcotte Sent: Wednesday, July 06, 2016 3:27 PM To: Accountability Cross Community Subject: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC) All, Please find attached the draft comment to the ICANN public consultation on the Articles of Incorporation from the leadership. These comments are based on the questions raised during the CCWG meeting on the AOC and in consideration of Sam Eisner's response to those questions. Please respond to the list ASAP if you have comments as this public consultation closes in a few hours. Bernard Turcotte ICANN Staff Support for the CCWG Co-Chairs. **************************************************************************************************** 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. ****************************************************************************************************

It's unfortunate that we don't have time to run this by our counsel, as I would be interested in their views. Here are mine. I would recommend against filing these comments. FIRST, I disagree with the second point raised. Substituting "shall" for "may" would incorrectly imply that there is a *requirement* that a determination of the global public interest *must* take place. We have not asked for such a requirement and we have not specified any such requirement, which would render this statement nebulous, ambiguous and undefined. As currently drafted, *if* a determination of the global public interest takes place it will be done by the multistakeholder community using a bottom-up multistakeholder process, but there is (properly) no language *requiring* that such a determination be made. If anyone believes that Final Recommendation 1, para 51 *requires* the initiation of a process to determine the global public interest, that should either be a part of Work Stream 2 or a huge implementation item for Work Stream 1. As far as I can see, it is neither -- which further proves that changing "may" to "shall" goes beyond the recommendations of the CCWG. SECOND, I also disagree with the third point raised. "Organized" is commonly used in Articles of Incorporation (indeed, in some states, such as Massachusetts, a non-profit corporation files Articles of Organization rather than Articles of Incorporation). As our counsel pointed out on the last call, the California official form for Articles of Incorporation uses the term "organized." (See attached) It is a best practice to stick closely to the official language provided by the jurisdiction -- here it is "organized." This is demonstrated in model California Articles of Incorporation prepared by Public Counsel, a pro bono law firm, and available online (see attached or http://www.publiccounsel.org/publications?id=0059). It would be far preferable if we were to accept the clarification that "organized" is what's used in this circumstance, rather than to recommend a change that is at best meaningless and at worst creates the potential for confusion (since one always looks for meaning in any change, and confusion could fill the void created by the meaninglessness of this change). To paraphrase Shakespeare, I don't think the confusion is in the document, it is in ourselves (or at least in some of us) -- and it would be better for us to adjust our understanding of the document, rather than to adjust the document to suit our misunderstanding. Of course, the language of the CCWG comment is relatively undemanding -- we only ask that "counsel" (whose counsel? ICANN's?) or "the drafters" (why the difference?) review the language. We do not justify our quasi-recommendations of changes, other than by saying that we are confused by the word "organized" and by demonstrating that we are confused about what is permissive and what is required. Frankly, I'm far from sure that this comment is widely supported, other than by apathy or lack of time. I think it would be a mistake for either of these two recommendations (?) to be adopted, and I hope that counsel/the drafters, upon further review, let the original drafting stand. The only thing I agree with is the trivial change from "further" to "future," which at least does not make matters worse. This is hardly worth a comment by itself. In sum, I reiterate that I would recommend against filing these comments. Best regards, Greg On Wed, Jul 6, 2016 at 3:49 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:

I agree. This is a legal document, and we should have the benefit of counsel on this.

Greg

On Wed, Jul 6, 2016 at 3:36 PM, James Gannon <james@cyberinvasion.net> wrote:

...

While not able to certify anything, if there are issues that our counsel see I think its important that they are raised.

-James

From: <accountability-cross-community-bounces@icann.org> on behalf of "Gregory, Holly" <holly.gregory@sidley.com> Date: Wednesday 6 July 2016 at 20:32 To: Thomas Rickert <thomas@rickert.net>, Mathieu Weill < mathieu.weill@afnic.fr>, "leonfelipe@sanchez.mx" <leonfelipe@sanchez.mx>, Accountability Cross Community <accountability-cross-community@icann.org>, Bernard Turcotte <turcotte.bernard@gmail.com> Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)

Dear Co-Chairs and CCWG-Accountability Members and Participants, Please let us know if you want Sidley and/or Adler to comment on this before you post it. We will not do so unless instructed to. 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

*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Bernard Turcotte *Sent:* Wednesday, July 06, 2016 3:27 PM *To:* Accountability Cross Community *Subject:* [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)

All,

Please find attached the draft comment to the ICANN public consultation on the Articles of Incorporation from the leadership.

These comments are based on the questions raised during the CCWG meeting on the AOC and in consideration of Sam Eisner's response to those questions.

Please respond to the list ASAP if you have comments as this public consultation closes in a few hours.

Bernard Turcotte

ICANN Staff Support for the CCWG Co-Chairs.

**************************************************************************************************** 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 https://mm.icann.org/mailman/listinfo/accountability-cross-community

Agree - I think it would make sense that we spend a little more time ensuring that the restated AoI do reflect the intent and language of the new bylaws. Matthew On 06/07/2016 22:24, James Gannon wrote:

Hi All, In light of this and some other conversations I think that we need to take at least 24hours to review this comment and ensure that it is a consensus comment of the CCWG before we file it, Im not sure if a 24-48hr delay in the filing of the CCWG comment would have a major impact downstream in the timelines, I have cc’d Trang and Yuko who may be able to respond to that.

I think that we may have let the AoI slip under our radar a little with all of the parallel work that is going on and we need to make sure that we get this comment correct first time and to do that we nee to do it with a full set of inputs and considerations by the CCWG members and I don’t feel we have this yet. I know that we are working to tight deadlines, but we need to make sure that we do this right.

-JG

From: Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> Date: Wednesday 6 July 2016 at 21:45 To: James Gannon <james@cyberinvasion.net <mailto:james@cyberinvasion.net>> Cc: "Gregory, Holly" <holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>>, Thomas Rickert <thomas@rickert.net <mailto:thomas@rickert.net>>, Mathieu Weill <mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>>, "leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>" <leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>>, Accountability Cross Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>, Bernard Turcotte <turcotte.bernard@gmail.com <mailto:turcotte.bernard@gmail.com>> Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)

It's unfortunate that we don't have time to run this by our counsel, as I would be interested in their views. Here are mine.

I would recommend against filing these comments.

FIRST, I disagree with the second point raised. Substituting "shall" for "may" would incorrectly imply that there is a _requirement_ that a determination of the global public interest _must_ take place. We have not asked for such a requirement and we have not specified any such requirement, which would render this statement nebulous, ambiguous and undefined. As currently drafted, /if/ a determination of the global public interest takes place it will be done by the multistakeholder community using a bottom-up multistakeholder process, but there is (properly) no language _requiring_ that such a determination be made.

If anyone believes that Final Recommendation 1, para 51 _requires_ the initiation of a process to determine the global public interest, that should either be a part of Work Stream 2 or a huge implementation item for Work Stream 1. As far as I can see, it is neither -- which further proves that changing "may" to "shall" goes beyond the recommendations of the CCWG.

SECOND, I also disagree with the third point raised. "Organized" is commonly used in Articles of Incorporation (indeed, in some states, such as Massachusetts, a non-profit corporation files Articles of Organization rather than Articles of Incorporation). As our counsel pointed out on the last call, the California official form for Articles of Incorporation uses the term "organized." (See attached) It is a best practice to stick closely to the official language provided by the jurisdiction -- here it is "organized." This is demonstrated in model California Articles of Incorporation prepared by Public Counsel, a pro bono law firm, and available online (see attached or http://www.publiccounsel.org/publications?id=0059). It would be far preferable if we were to accept the clarification that "organized" is what's used in this circumstance, rather than to recommend a change that is at best meaningless and at worst creates the potential for confusion (since one always looks for meaning in any change, and confusion could fill the void created by the meaninglessness of this change). To paraphrase Shakespeare, I don't think the confusion is in the document, it is in ourselves (or at least in some of us) -- and it would be better for us to adjust our understanding of the document, rather than to adjust the document to suit our misunderstanding.

Of course, the language of the CCWG comment is relatively undemanding -- we only ask that "counsel" (whose counsel? ICANN's?) or "the drafters" (why the difference?) review the language. We do not justify our quasi-recommendations of changes, other than by saying that we are confused by the word "organized" and by demonstrating that we are confused about what is permissive and what is required.

Frankly, I'm far from sure that this comment is widely supported, other than by apathy or lack of time. I think it would be a mistake for either of these two recommendations (?) to be adopted, and I hope that counsel/the drafters, upon further review, let the original drafting stand.

The only thing I agree with is the trivial change from "further" to "future," which at least does not make matters worse. This is hardly worth a comment by itself.

In sum, I reiterate that I would recommend against filing these comments.

Best regards,

Greg

On Wed, Jul 6, 2016 at 3:49 PM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote:

I agree. This is a legal document, and we should have the benefit of counsel on this.

Greg

On Wed, Jul 6, 2016 at 3:36 PM, James Gannon <james@cyberinvasion.net <mailto:james@cyberinvasion.net>> wrote:

While not able to certify anything, if there are issues that our counsel see I think its important that they are raised.

-James

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: Wednesday 6 July 2016 at 20:32 To: Thomas Rickert <thomas@rickert.net <mailto:thomas@rickert.net>>, Mathieu Weill <mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>>, "leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>" <leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>>, Accountability Cross Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>, Bernard Turcotte <turcotte.bernard@gmail.com <mailto:turcotte.bernard@gmail.com>> Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)

Dear Co-Chairs and CCWG-Accountability Members and Participants, Please let us know if you want Sidley and/or Adler to comment on this before you post it. We will not do so unless instructed to. Holly

*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>

*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Bernard Turcotte *Sent:* Wednesday, July 06, 2016 3:27 PM *To:* Accountability Cross Community *Subject:* [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)

All,

Please find attached the draft comment to the ICANN public consultation on the Articles of Incorporation from the leadership.

These comments are based on the questions raised during the CCWG meeting on the AOC and in consideration of Sam Eisner's response to those questions.

Please respond to the list ASAP if you have comments as this public consultation closes in a few hours.

Bernard Turcotte

ICANN Staff Support for the CCWG Co-Chairs.

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

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

-- -------------- Matthew Shears Global Internet Policy and Human Rights Center for Democracy & Technology (CDT) + 44 771 2472987 --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus

Brett, I disagree with your reading of both the original language and your proposed language. I don't have the time to parse it, but I stand by my earlier analysis and could demonstrate it at tiresome length. That said, there may be a third path that will clarify to all readers that a GPI review may (or may not) take place, but that if it does, it shall be done by a bottom-up multistakeholder process. I can give some thought to that this evening. Greg On Wed, Jul 6, 2016 at 5:26 PM, Schaefer, Brett <Brett.Schaefer@heritage.org

wrote:

Greg,

The concern is that the language proposed by Samantha is ambiguous and leaves open the possibility that the GPI could be determined in a manner not based on the bottom-up multi-stakeholder process. Specifically, the phrasing reads that ICANN is not required to use a bottom-up multistakeholder community process to determine the GPI. That, instead, it “may” do so “from time to time”:

“, the Corporation shall, except as limited by Article 4 hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet, as such global public interest may be determined from time to time by the multistakeholder community through an inclusive bottom-up multistakeholder community process, by carrying out the mission set forth in the bylaws of the Corporation (“Bylaws”).”

I suggested this change:

“…as such the global public interest shall be determined by the multistakeholder community through an inclusive bottom-up multistakeholder community process consistent with the mission set forth in the bylaws of the Corporation (“Bylaws”).”

I disagree that replacing may with shall would require that ICANN determine a GPI. There is no frequency or requirement that the GPI be determined at all. From my read, that phrasing states only that if the GPI is determined it must be done through a bottom-up multistakeholder community process.

That said, I would welcome alternative phrasing that would remove the ambiguity of Samantha’s suggested text. Perhaps this?

“…as such, when ICANN determines the global public interest, it shall be determined by the multistakeholder community through an inclusive bottom-up multistakeholder community process consistent with the mission set forth in the bylaws of the Corporation (“Bylaws”).”

On the organized versus incorporated issue, I’m frankly puzzled that you are so hostile to a change that you regard as a word choice issue based on the legal jargon preference in California. You note yourself that the terms are largely interchangeable. However, part of the value of these documents is to make clear their meaning not just to lawyers versed in US law, but to non-lawyers and non-US lawyers. Replacing “organized” with “organized and incorporated” would do this without creating the potential for confusion.

I agree completely that it is unfortunate that we are addressing this matter at the last minute.

Best,

Brett

*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Greg Shatan *Sent:* Wednesday, July 06, 2016 4:46 PM *To:* James Gannon *Cc:* Thomas Rickert; Accountability Cross Community *Subject:* Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)

It's unfortunate that we don't have time to run this by our counsel, as I would be interested in their views. Here are mine.

I would recommend against filing these comments.

FIRST, I disagree with the second point raised. Substituting "shall" for "may" would incorrectly imply that there is a *requirement* that a determination of the global public interest *must* take place. We have not asked for such a requirement and we have not specified any such requirement, which would render this statement nebulous, ambiguous and undefined. As currently drafted, *if* a determination of the global public interest takes place it will be done by the multistakeholder community using a bottom-up multistakeholder process, but there is (properly) no language *requiring* that such a determination be made.

If anyone believes that Final Recommendation 1, para 51 *requires* the initiation of a process to determine the global public interest, that should either be a part of Work Stream 2 or a huge implementation item for Work Stream 1. As far as I can see, it is neither -- which further proves that changing "may" to "shall" goes beyond the recommendations of the CCWG.

SECOND, I also disagree with the third point raised. "Organized" is commonly used in Articles of Incorporation (indeed, in some states, such as Massachusetts, a non-profit corporation files Articles of Organization rather than Articles of Incorporation). As our counsel pointed out on the last call, the California official form for Articles of Incorporation uses the term "organized." (See attached) It is a best practice to stick closely to the official language provided by the jurisdiction -- here it is "organized." This is demonstrated in model California Articles of Incorporation prepared by Public Counsel, a pro bono law firm, and available online (see attached or http://www.publiccounsel.org/publications?id=0059). It would be far preferable if we were to accept the clarification that "organized" is what's used in this circumstance, rather than to recommend a change that is at best meaningless and at worst creates the potential for confusion (since one always looks for meaning in any change, and confusion could fill the void created by the meaninglessness of this change). To paraphrase Shakespeare, I don't think the confusion is in the document, it is in ourselves (or at least in some of us) -- and it would be better for us to adjust our understanding of the document, rather than to adjust the document to suit our misunderstanding.

Of course, the language of the CCWG comment is relatively undemanding -- we only ask that "counsel" (whose counsel? ICANN's?) or "the drafters" (why the difference?) review the language. We do not justify our quasi-recommendations of changes, other than by saying that we are confused by the word "organized" and by demonstrating that we are confused about what is permissive and what is required.

Frankly, I'm far from sure that this comment is widely supported, other than by apathy or lack of time. I think it would be a mistake for either of these two recommendations (?) to be adopted, and I hope that counsel/the drafters, upon further review, let the original drafting stand.

The only thing I agree with is the trivial change from "further" to "future," which at least does not make matters worse. This is hardly worth a comment by itself.

In sum, I reiterate that I would recommend against filing these comments.

Best regards,

Greg

On Wed, Jul 6, 2016 at 3:49 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:

I agree. This is a legal document, and we should have the benefit of counsel on this.

Greg

On Wed, Jul 6, 2016 at 3:36 PM, James Gannon <james@cyberinvasion.net> wrote:

While not able to certify anything, if there are issues that our counsel see I think its important that they are raised.

-James

------------------------------ 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

*From: *<accountability-cross-community-bounces@icann.org> on behalf of "Gregory, Holly" <holly.gregory@sidley.com> *Date: *Wednesday 6 July 2016 at 20:32 *To: *Thomas Rickert <thomas@rickert.net>, Mathieu Weill < mathieu.weill@afnic.fr>, "leonfelipe@sanchez.mx" <leonfelipe@sanchez.mx>, Accountability Cross Community <accountability-cross-community@icann.org>, Bernard Turcotte <turcotte.bernard@gmail.com> *Subject: *Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)

Dear Co-Chairs and CCWG-Accountability Members and Participants, Please let us know if you want Sidley and/or Adler to comment on this before you post it. We will not do so unless instructed to. 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

*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Bernard Turcotte *Sent:* Wednesday, July 06, 2016 3:27 PM *To:* Accountability Cross Community *Subject:* [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)

All,

Please find attached the draft comment to the ICANN public consultation on the Articles of Incorporation from the leadership.

These comments are based on the questions raised during the CCWG meeting on the AOC and in consideration of Sam Eisner's response to those questions.

Please respond to the list ASAP if you have comments as this public consultation closes in a few hours.

Bernard Turcotte

ICANN Staff Support for the CCWG Co-Chairs.

**************************************************************************************************** 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 https://mm.icann.org/mailman/listinfo/accountability-cross-community

It's clear to me that the "may" applies to whether the review takes place, not how. That said, see my response to Brett. On Wed, Jul 6, 2016 at 5:32 PM, Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com> wrote:

Greg

I think the concern with the “may” language was that it seemed to admit of the possibility that there were ways OTHER THAN through a bottom up process by which GPI might be determined. Say, for example, by Board determination. I certainly agree that the intention of using “shall” was not to mandate the determination of GPI. Rather it was to say that bottom up MSM was the exclusive means by which GPI can be deveopled.

Can you suggest a clarifying text that captures that and also excludes your concern with mandatory action?

Paul

Paul Rosenzweig

paul.rosenzweig@redbranchconsulting.com

O: +1 (202) 547-0660

M: +1 (202) 329-9650

VOIP: +1 (202) 738-1739

www.redbranchconsulting.com

My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/

*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Greg Shatan *Sent:* Wednesday, July 6, 2016 4:46 PM *To:* James Gannon <james@cyberinvasion.net> *Cc:* Thomas Rickert <thomas@rickert.net>; Accountability Cross Community <accountability-cross-community@icann.org>

*Subject:* Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)

It's unfortunate that we don't have time to run this by our counsel, as I would be interested in their views. Here are mine.

I would recommend against filing these comments.

FIRST, I disagree with the second point raised. Substituting "shall" for "may" would incorrectly imply that there is a *requirement* that a determination of the global public interest *must* take place. We have not asked for such a requirement and we have not specified any such requirement, which would render this statement nebulous, ambiguous and undefined. As currently drafted, *if* a determination of the global public interest takes place it will be done by the multistakeholder community using a bottom-up multistakeholder process, but there is (properly) no language *requiring* that such a determination be made.

If anyone believes that Final Recommendation 1, para 51 *requires* the initiation of a process to determine the global public interest, that should either be a part of Work Stream 2 or a huge implementation item for Work Stream 1. As far as I can see, it is neither -- which further proves that changing "may" to "shall" goes beyond the recommendations of the CCWG.

SECOND, I also disagree with the third point raised. "Organized" is commonly used in Articles of Incorporation (indeed, in some states, such as Massachusetts, a non-profit corporation files Articles of Organization rather than Articles of Incorporation). As our counsel pointed out on the last call, the California official form for Articles of Incorporation uses the term "organized." (See attached) It is a best practice to stick closely to the official language provided by the jurisdiction -- here it is "organized." This is demonstrated in model California Articles of Incorporation prepared by Public Counsel, a pro bono law firm, and available online (see attached or http://www.publiccounsel.org/publications?id=0059). It would be far preferable if we were to accept the clarification that "organized" is what's used in this circumstance, rather than to recommend a change that is at best meaningless and at worst creates the potential for confusion (since one always looks for meaning in any change, and confusion could fill the void created by the meaninglessness of this change). To paraphrase Shakespeare, I don't think the confusion is in the document, it is in ourselves (or at least in some of us) -- and it would be better for us to adjust our understanding of the document, rather than to adjust the document to suit our misunderstanding.

Of course, the language of the CCWG comment is relatively undemanding -- we only ask that "counsel" (whose counsel? ICANN's?) or "the drafters" (why the difference?) review the language. We do not justify our quasi-recommendations of changes, other than by saying that we are confused by the word "organized" and by demonstrating that we are confused about what is permissive and what is required.

Frankly, I'm far from sure that this comment is widely supported, other than by apathy or lack of time. I think it would be a mistake for either of these two recommendations (?) to be adopted, and I hope that counsel/the drafters, upon further review, let the original drafting stand.

The only thing I agree with is the trivial change from "further" to "future," which at least does not make matters worse. This is hardly worth a comment by itself.

In sum, I reiterate that I would recommend against filing these comments.

Best regards,

Greg

On Wed, Jul 6, 2016 at 3:49 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:

I agree. This is a legal document, and we should have the benefit of counsel on this.

Greg

On Wed, Jul 6, 2016 at 3:36 PM, James Gannon <james@cyberinvasion.net> wrote:

While not able to certify anything, if there are issues that our counsel see I think its important that they are raised.

-James

*From: *<accountability-cross-community-bounces@icann.org> on behalf of "Gregory, Holly" <holly.gregory@sidley.com> *Date: *Wednesday 6 July 2016 at 20:32 *To: *Thomas Rickert <thomas@rickert.net>, Mathieu Weill < mathieu.weill@afnic.fr>, "leonfelipe@sanchez.mx" <leonfelipe@sanchez.mx>, Accountability Cross Community <accountability-cross-community@icann.org>, Bernard Turcotte <turcotte.bernard@gmail.com> *Subject: *Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)

Dear Co-Chairs and CCWG-Accountability Members and Participants, Please let us know if you want Sidley and/or Adler to comment on this before you post it. We will not do so unless instructed to. 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

*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Bernard Turcotte *Sent:* Wednesday, July 06, 2016 3:27 PM *To:* Accountability Cross Community *Subject:* [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)

All,

Please find attached the draft comment to the ICANN public consultation on the Articles of Incorporation from the leadership.

These comments are based on the questions raised during the CCWG meeting on the AOC and in consideration of Sam Eisner's response to those questions.

Please respond to the list ASAP if you have comments as this public consultation closes in a few hours.

Bernard Turcotte

ICANN Staff Support for the CCWG Co-Chairs.

**************************************************************************************************** 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 https://mm.icann.org/mailman/listinfo/accountability-cross-community

I also agree with Edward that we benefit by letting the retained pros come on to the field and kick the ball around with the rest of us. On Wed, Jul 6, 2016 at 5:40 PM, Edward Morris <egmorris1@toast.net> wrote:

I agree with Greg for the exact reasons he has cited. Legal language has a structure and definitional quality all it's own and I would be very hesitant to submit this comment without having first run it by our counsel. My experience and education causes me to agree with Greg's analysis and I would urge caution in approaching this matter in a less than thorough manner. This is a legal document very specific to California law and I would be uncomfortable submitting something that has not yet been vetted by our legal team.

Best,

Ed Morris

Sent from my iPhone

On 6 Jul 2016, at 21:51, Greg Shatan <gregshatanipc@gmail.com> wrote:

It's unfortunate that we don't have time to run this by our counsel, as I would be interested in their views. Here are mine.

I would recommend against filing these comments.

FIRST, I disagree with the second point raised. Substituting "shall" for "may" would incorrectly imply that there is a *requirement* that a determination of the global public interest *must* take place. We have not asked for such a requirement and we have not specified any such requirement, which would render this statement nebulous, ambiguous and undefined. As currently drafted, *if* a determination of the global public interest takes place it will be done by the multistakeholder community using a bottom-up multistakeholder process, but there is (properly) no language *requiring* that such a determination be made.

If anyone believes that Final Recommendation 1, para 51 *requires* the initiation of a process to determine the global public interest, that should either be a part of Work Stream 2 or a huge implementation item for Work Stream 1. As far as I can see, it is neither -- which further proves that changing "may" to "shall" goes beyond the recommendations of the CCWG.

SECOND, I also disagree with the third point raised. "Organized" is commonly used in Articles of Incorporation (indeed, in some states, such as Massachusetts, a non-profit corporation files Articles of Organization rather than Articles of Incorporation). As our counsel pointed out on the last call, the California official form for Articles of Incorporation uses the term "organized." (See attached) It is a best practice to stick closely to the official language provided by the jurisdiction -- here it is "organized." This is demonstrated in model California Articles of Incorporation prepared by Public Counsel, a pro bono law firm, and available online (see attached or http://www.publiccounsel.org/publications?id=0059). It would be far preferable if we were to accept the clarification that "organized" is what's used in this circumstance, rather than to recommend a change that is at best meaningless and at worst creates the potential for confusion (since one always looks for meaning in any change, and confusion could fill the void created by the meaninglessness of this change). To paraphrase Shakespeare, I don't think the confusion is in the document, it is in ourselves (or at least in some of us) -- and it would be better for us to adjust our understanding of the document, rather than to adjust the document to suit our misunderstanding.

Of course, the language of the CCWG comment is relatively undemanding -- we only ask that "counsel" (whose counsel? ICANN's?) or "the drafters" (why the difference?) review the language. We do not justify our quasi-recommendations of changes, other than by saying that we are confused by the word "organized" and by demonstrating that we are confused about what is permissive and what is required.

Frankly, I'm far from sure that this comment is widely supported, other than by apathy or lack of time. I think it would be a mistake for either of these two recommendations (?) to be adopted, and I hope that counsel/the drafters, upon further review, let the original drafting stand.

The only thing I agree with is the trivial change from "further" to "future," which at least does not make matters worse. This is hardly worth a comment by itself.

In sum, I reiterate that I would recommend against filing these comments.

Best regards,

Greg

On Wed, Jul 6, 2016 at 3:49 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:

...

I agree. This is a legal document, and we should have the benefit of counsel on this.

Greg

On Wed, Jul 6, 2016 at 3:36 PM, James Gannon <james@cyberinvasion.net> wrote:

...

While not able to certify anything, if there are issues that our counsel see I think its important that they are raised.

-James

From: <accountability-cross-community-bounces@icann.org> on behalf of "Gregory, Holly" <holly.gregory@sidley.com> Date: Wednesday 6 July 2016 at 20:32 To: Thomas Rickert <thomas@rickert.net>, Mathieu Weill < mathieu.weill@afnic.fr>, "leonfelipe@sanchez.mx" <leonfelipe@sanchez.mx>, Accountability Cross Community <accountability-cross-community@icann.org>, Bernard Turcotte <turcotte.bernard@gmail.com> Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)

Dear Co-Chairs and CCWG-Accountability Members and Participants, Please let us know if you want Sidley and/or Adler to comment on this before you post it. We will not do so unless instructed to. 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

*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Bernard Turcotte *Sent:* Wednesday, July 06, 2016 3:27 PM *To:* Accountability Cross Community *Subject:* [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)

All,

Please find attached the draft comment to the ICANN public consultation on the Articles of Incorporation from the leadership.

These comments are based on the questions raised during the CCWG meeting on the AOC and in consideration of Sam Eisner's response to those questions.

Please respond to the list ASAP if you have comments as this public consultation closes in a few hours.

Bernard Turcotte

ICANN Staff Support for the CCWG Co-Chairs.

**************************************************************************************************** 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 https://mm.icann.org/mailman/listinfo/accountability-cross-community

<arts-pb.pdf>

<Form_Articles.doc>

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

I would support Thomas’s suggested text. I suggest others review it as a possible acceptable compromise. -James From: Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>> Date: Wednesday 6 July 2016 at 23:02 To: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Cc: Edward Morris <egmorris1@toast.net<mailto:egmorris1@toast.net>>, James Gannon <james@cyberinvasion.net<mailto:james@cyberinvasion.net>>, Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC) I agree we should let Holly and Rosemary chime in with their view. I would just note the following: - We agree on the first point. - With respect to the second point - we are making reference to our report and ask the drafters to ensure that this is adequately covered. Therefore, there should not be the risk of going beyond the recommendations our group has made. In my view, we could fix the concerns some of you raised by reframing the Issues paragraph as follows: "Issue: Concerns were raised regarding use of the term “may”. Some felt this did not properly implement the recommendations of the CCWG-Accountability on this topic which include:" This tweak would remove reference to the word „shall“ and just request the lawyers to double-check whether our recommendations are covered. - On the third point: Greg put additional information on the record showing that the language is not ambiguous. This could be pointed to if need be. Thus, we could potentially drop that point. I have attached an updated version. Please note that our comment shall encourage the drafters to take a second look at the document based on our feedback. If concerns are raised or language is perceived to be unclear, that is something we can and should raise. I trust that the legal teams have good reason for why they framed things as they did in the draft we now comment on. Still, the perception that some have justifies that these concerns are being brought up and reviewed. We will now let the discussion go on and file our comment a bit late. I am sure it will still be taken into account. Thanks and kind regards, Thomas Am 06.07.2016 um 23:44 schrieb Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>: I also agree with Edward that we benefit by letting the retained pros come on to the field and kick the ball around with the rest of us. On Wed, Jul 6, 2016 at 5:40 PM, Edward Morris <egmorris1@toast.net<mailto:egmorris1@toast.net>> wrote: I agree with Greg for the exact reasons he has cited. Legal language has a structure and definitional quality all it's own and I would be very hesitant to submit this comment without having first run it by our counsel. My experience and education causes me to agree with Greg's analysis and I would urge caution in approaching this matter in a less than thorough manner. This is a legal document very specific to California law and I would be uncomfortable submitting something that has not yet been vetted by our legal team. Best, Ed Morris Sent from my iPhone On 6 Jul 2016, at 21:51, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: It's unfortunate that we don't have time to run this by our counsel, as I would be interested in their views. Here are mine. I would recommend against filing these comments. FIRST, I disagree with the second point raised. Substituting "shall" for "may" would incorrectly imply that there is a requirement that a determination of the global public interest must take place. We have not asked for such a requirement and we have not specified any such requirement, which would render this statement nebulous, ambiguous and undefined. As currently drafted, if a determination of the global public interest takes place it will be done by the multistakeholder community using a bottom-up multistakeholder process, but there is (properly) no language requiring that such a determination be made. If anyone believes that Final Recommendation 1, para 51 requires the initiation of a process to determine the global public interest, that should either be a part of Work Stream 2 or a huge implementation item for Work Stream 1. As far as I can see, it is neither -- which further proves that changing "may" to "shall" goes beyond the recommendations of the CCWG. SECOND, I also disagree with the third point raised. "Organized" is commonly used in Articles of Incorporation (indeed, in some states, such as Massachusetts, a non-profit corporation files Articles of Organization rather than Articles of Incorporation). As our counsel pointed out on the last call, the California official form for Articles of Incorporation uses the term "organized." (See attached) It is a best practice to stick closely to the official language provided by the jurisdiction -- here it is "organized." This is demonstrated in model California Articles of Incorporation prepared by Public Counsel, a pro bono law firm, and available online (see attached or http://www.publiccounsel.org/publications?id=0059). It would be far preferable if we were to accept the clarification that "organized" is what's used in this circumstance, rather than to recommend a change that is at best meaningless and at worst creates the potential for confusion (since one always looks for meaning in any change, and confusion could fill the void created by the meaninglessness of this change). To paraphrase Shakespeare, I don't think the confusion is in the document, it is in ourselves (or at least in some of us) -- and it would be better for us to adjust our understanding of the document, rather than to adjust the document to suit our misunderstanding. Of course, the language of the CCWG comment is relatively undemanding -- we only ask that "counsel" (whose counsel? ICANN's?) or "the drafters" (why the difference?) review the language. We do not justify our quasi-recommendations of changes, other than by saying that we are confused by the word "organized" and by demonstrating that we are confused about what is permissive and what is required. Frankly, I'm far from sure that this comment is widely supported, other than by apathy or lack of time. I think it would be a mistake for either of these two recommendations (?) to be adopted, and I hope that counsel/the drafters, upon further review, let the original drafting stand. The only thing I agree with is the trivial change from "further" to "future," which at least does not make matters worse. This is hardly worth a comment by itself. In sum, I reiterate that I would recommend against filing these comments. Best regards, Greg On Wed, Jul 6, 2016 at 3:49 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: I agree. This is a legal document, and we should have the benefit of counsel on this. Greg On Wed, Jul 6, 2016 at 3:36 PM, James Gannon <james@cyberinvasion.net<mailto:james@cyberinvasion.net>> wrote: While not able to certify anything, if there are issues that our counsel see I think its important that they are raised. -James 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: Wednesday 6 July 2016 at 20:32 To: Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>, Mathieu Weill <mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>>, "leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>" <leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>>, Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>, Bernard Turcotte <turcotte.bernard@gmail.com<mailto:turcotte.bernard@gmail.com>> Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC) Dear Co-Chairs and CCWG-Accountability Members and Participants, Please let us know if you want Sidley and/or Adler to comment on this before you post it. We will not do so unless instructed to. Holly 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> From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Bernard Turcotte Sent: Wednesday, July 06, 2016 3:27 PM To: Accountability Cross Community Subject: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC) All, Please find attached the draft comment to the ICANN public consultation on the Articles of Incorporation from the leadership. These comments are based on the questions raised during the CCWG meeting on the AOC and in consideration of Sam Eisner's response to those questions. Please respond to the list ASAP if you have comments as this public consultation closes in a few hours. Bernard Turcotte ICANN Staff Support for the CCWG Co-Chairs. **************************************************************************************************** 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 <arts-pb.pdf> <Form_Articles.doc> _______________________________________________ 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