In my case, it is not apathy but lack of time. I strongly support Greg on not replacing MAY with SHALL. Perhaps we will ultimately determine (or define) global public interest, but I personally think that trying to lock in specific wording is a fools game and will only get us in trouble. We certainly must understand it better, and that will likely be an ongoing exercise. Specifically, I am not sure what "shall be determined from time to time" means. I has the tone of something that will be done every N years on a regular schedule and that certainly is not what was meant. Alan At 06/07/2016 04:45 PM, Greg Shatan 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>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 <<mailto:gregshatanipc@gmail.com>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 <<mailto:james@cyberinvasion.net>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: <<mailto:accountability-cross-community-bounces@icann.org>accountability-cross-community-bounces@icann.org> on behalf of "Gregory, Holly" <<mailto:holly.gregory@sidley.com>holly.gregory@sidley.com> Date: Wednesday 6 July 2016 at 20:32 To: Thomas Rickert <<mailto:thomas@rickert.net>thomas@rickert.net>, Mathieu Weill <<mailto:mathieu.weill@afnic.fr>mathieu.weill@afnic.fr>, "<mailto:leonfelipe@sanchez.mx>leonfelipe@sanchez.mx" <<mailto:leonfelipe@sanchez.mx>leonfelipe@sanchez.mx>, Accountability Cross Community <<mailto:accountability-cross-community@icann.org>accountability-cross-community@icann.org>, Bernard Turcotte <<mailto:turcotte.bernard@gmail.com>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 <tel:%2B1%20212%20839%205853>+1 212 839 5853 <mailto:holly.gregory@sidley.com>holly.gregory@sidley.com

From: <mailto:accountability-cross-community-bounces@icann.org>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.

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