Lawyers' Comments on CCWG Comments on Draft New ICANN Bylaws
Holly Gregory asked that I forward the email below. Please post to the CCWG and BCG lists on her behalf. Dear CCWG-ACCT Co-Chairs, Members, Participants, and ICANN Staff, Attached please find comments from Sidley and Adler on the CCWG’s Comments on Draft New ICANN Bylaws (tracked changes in Word and PDF). Please note that we have serious concerns around comments 9 and 10 and believe that, as currently stated, they are based on misreadings of the draft Bylaws in the relation to the CCWG Proposal. Kind regards, Holly and Rosemary HOLLY J. GREGORY Partner and Co-Chair Corporate Governance & Executive Compensation Practice Group Sidley Austin LLP 787 Seventh Avenue New York, NY 10019 +1 212 839 5853 holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> www.sidley.com<http://www.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 Holly, Rosemary, for this. In respect of your substantive comments I agree with you regarding comment 9 (which I think arose from the complexity of the document, as not all "parts" of the carve out are referenced in all places - rightly from a drafting point of view, but a little hard to follow for us non-lawyers), and comment 10 too. On comment 10 however, I'd like to be clear that the reason a rationale is presented is as a matter of explanation. The decisional process which follows is not reliant on that explanation or rationale being judged against non-existent objective criteria. The presentation of rationale is simply so that DPs have to go on the record saying why they are acting as they are. Can you please assure me and us that the draft bylaws do not create a situation where anything published as a rationale can be used to block or interfere with the rights of decisional participants to exercise their powers? (The exception is where the budget related powers are being used, as it is clearly discernable whether or not an issue was raised in the public engagement process or not.) Many thanks Jordan On 8 May 2016 at 05:27, Grapsas, Rebecca <rebecca.grapsas@sidley.com> wrote:
Holly Gregory asked that I forward the email below. Please post to the CCWG and BCG lists on her behalf.
Dear CCWG-ACCT Co-Chairs, Members, Participants, and ICANN Staff,
Attached please find comments from Sidley and Adler on the CCWG’s Comments on Draft New ICANN Bylaws (tracked changes in Word and PDF).
Please note that we have serious concerns around comments 9 and 10 and believe that, as currently stated, they are based on misreadings of the draft Bylaws in the relation to the CCWG Proposal.
Kind regards,
Holly and Rosemary
*HOLLY* *J. GREGORY* Partner and Co-Chair Corporate Governance & Executive Compensation Practice Group
*Sidley Austin LLP* 787 Seventh Avenue New York, NY 10019 +1 212 839 5853 holly.gregory@sidley.com www.sidley.com
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-- Jordan Carter Chief Executive *InternetNZ * +64-4-495-2118 (office) | +64-21-442-649 (mob) | Skype: jordancarter jordan@InternetNZ.net.nz | www.InternetNZ.nz *A better world through a better Internet*
Holly Gregory asked that I forward the email below. Please post to the CCWG and BCG lists on her behalf. Jordan, that is correct. Except with respect to budgets and plans, the draft Bylaws do not allow the rationale provided to give rise to a restriction or limitation on the use of a community power. The rationale requirements relating to items other than budgets and plans are in the nature of information-sharing (i.e., letting the other Decisional Participants know why a petition has been accepted). Specifically, Annex D, Section 2.2(c) requires that a rationale be included in the Rejection Action Petition Notice – this is the notice that a Decisional Participant that has accepted a petition provides to all the Decisional Participants and the Secretary. The other Decisional Participants then decide whether or not to support the petition, so as to require a Community Forum. The Decisional Participants decide whether or not to support a petition in accordance with their own procedures; the ICANN Bylaws do not dictate what those procedures must be. Presumably they would consider the rationale that has been included in the petition notice but that is not a requirement under the ICANN Bylaws. If a sufficient number of Decisional Participants support the petition, Annex D, Section 2.2(d) requires that the Rejection Action Petitioning Decisional Participant post a Rejection Action Supported Petition that includes, among other things, “a supporting rationale in reasonable detail.” Again, the ICANN Bylaws do not specify how the “supporting rationale” is to be arrived at or drafted; this would be for the Decisional Participants to figure out. The Rejection Action Supported Petition would then be discussed during the Community Forum pursuant to Annex D, Section 2.3(a). This last requirement was included to reflect Annex 2, Paragraph 32, first bullet, which provides that the “purpose of the Community Forum is information-sharing (the rationale for the petition, etc.) and airing views on the petition by the community…” Kind regards, Holly and Rosemary HOLLY J. GREGORY Partner and Co-Chair Corporate Governance & Executive Compensation Practice Group Sidley Austin LLP 787 Seventh Avenue New York, NY 10019 +1 212 839 5853<tel:%2B1%20212%20839%205853> holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> www.sidley.com<http://www.sidley.com/> From: Jordan Carter [mailto:jordan@internetnz.net.nz] Sent: Sunday, May 08, 2016 12:04 AM To: Grapsas, Rebecca Cc: Accountability Cross Community; Sidley ICANN CCWG; ICANN@adlercolvin.com Subject: Re: [CCWG-ACCT] Lawyers' Comments on CCWG Comments on Draft New ICANN Bylaws Thanks Holly, Rosemary, for this. In respect of your substantive comments I agree with you regarding comment 9 (which I think arose from the complexity of the document, as not all "parts" of the carve out are referenced in all places - rightly from a drafting point of view, but a little hard to follow for us non-lawyers), and comment 10 too. On comment 10 however, I'd like to be clear that the reason a rationale is presented is as a matter of explanation. The decisional process which follows is not reliant on that explanation or rationale being judged against non-existent objective criteria. The presentation of rationale is simply so that DPs have to go on the record saying why they are acting as they are. Can you please assure me and us that the draft bylaws do not create a situation where anything published as a rationale can be used to block or interfere with the rights of decisional participants to exercise their powers? (The exception is where the budget related powers are being used, as it is clearly discernable whether or not an issue was raised in the public engagement process or not.) Many thanks Jordan On 8 May 2016 at 05:27, Grapsas, Rebecca <rebecca.grapsas@sidley.com<mailto:rebecca.grapsas@sidley.com>> wrote: Holly Gregory asked that I forward the email below. Please post to the CCWG and BCG lists on her behalf. Dear CCWG-ACCT Co-Chairs, Members, Participants, and ICANN Staff, Attached please find comments from Sidley and Adler on the CCWG’s Comments on Draft New ICANN Bylaws (tracked changes in Word and PDF). Please note that we have serious concerns around comments 9 and 10 and believe that, as currently stated, they are based on misreadings of the draft Bylaws in the relation to the CCWG Proposal. Kind regards, Holly and Rosemary HOLLY J. GREGORY Partner and Co-Chair Corporate Governance & Executive Compensation Practice Group Sidley Austin LLP 787 Seventh Avenue New York, NY 10019 +1 212 839 5853<tel:%2B1%20212%20839%205853> holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> www.sidley.com<http://www.sidley.com/> **************************************************************************************************** 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=twKvOTWSAYDCa_MS9wxi3GMXlcF_iGe0vhGhMpD-6WY&s=4-UNPzz1rGULOi9IQTvfvMWY1BuII2Uv7NMGvokNJTE&e=> -- Jordan Carter Chief Executive InternetNZ +64-4-495-2118 (office) | +64-21-442-649 (mob) | Skype: jordancarter jordan@InternetNZ.net.nz<mailto:jordan@InternetNZ.net.nz> | www.InternetNZ.nz<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.InternetNZ.nz&d=CwMF...> A better world through a better Internet
Hi, I do not understand the reasons for the proposed additions to comment 2. In particular, the changes to 2.3 appear to miss the point of the WG's remarks. That some as-yet unwritten document will exist in the future is completely irrelevant to whether it ought to be protected from challenge under the Mission. It wouldn'r even matter if that document were only to say "A=A" (or some other necessary truth). The document is being protected from challenge under the Mission, and (1) nobody knows _now_ what it will say in the future and (2) it shouldn't even possibly be inconsistent with the Mission. If it's not inconsistent with the Mission, it can't be challenged effectively. If it _is_ inconsistent with the Mission, it _ought_ to be subject to such a challenge anyway. Moreover, asking "the groups most directly involved" for their opinion is not the right thing to do. These grandfathering clauses were not in the ICG report, and were not in the CCWG-Accountability report. There is no basis in any request by anyone for the grandfathering in subsections (B) through (E). The lawyers were supposed to implement the reports, not come up with things that people might want and implement those things. These clauses should be deleted, _point finale_, full stop, period. There is no basis for them in the reports, so they're not allowed. This isn't an obscure point, and the previous justifications offered by the lawyers do not address it. Best regards, A On Sat, May 07, 2016 at 05:27:53PM +0000, Grapsas, Rebecca wrote:
Holly Gregory asked that I forward the email below. Please post to the CCWG and BCG lists on her behalf.
Dear CCWG-ACCT Co-Chairs, Members, Participants, and ICANN Staff,
Attached please find comments from Sidley and Adler on the CCWG’s Comments on Draft New ICANN Bylaws (tracked changes in Word and PDF).
Please note that we have serious concerns around comments 9 and 10 and believe that, as currently stated, they are based on misreadings of the draft Bylaws in the relation to the CCWG Proposal.
Kind regards,
Holly and Rosemary
HOLLY J. GREGORY Partner and Co-Chair Corporate Governance & Executive Compensation Practice Group Sidley Austin LLP 787 Seventh Avenue New York, NY 10019 +1 212 839 5853 holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> www.sidley.com<http://www.sidley.com/>
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-- Andrew Sullivan ajs@anvilwalrusden.com
I mostly agree with Andrew's comments, but take a slightly more moderate stance. Regarding the Lawyer's Comments on comment 2.2, I am gratified to see that the Lawyers have made the same point I did: [We do not understand what is meant by a new term that is “based on previously agreed language.”] Regarding the additions to 2.3, I agree with Andrew that it is not congruent with the sense of the CCWG to ask for more input from "the groups more directly involved." Let me provide a scorecard regarding who those groups would be: B. The IETF, the ASO and the NRO. C. ICANN and the Root Zone Maintainer, presumably Verisign D. ICANN and PTI E. ICANN In the case of B, these are communities independent of ICANN who are contracting with it for IANA functions. Yes, it makes sense to get input from them, but we already have input from the IETF and there is no ambiguity about their perspective. I suspect that the ASO/NRO will have a similar perspective - I don't think they will be willing to give a blanket exemption from challenges to a contract that is not signed yet. I do hope the ASO weighs in. In the cases of C, D and E, we are dealing primarily with ICANN itself. And since the mission limitations are intended to constrain ICANN, I don't think ICANN corporate's input should be determinative. Input from Verisign would be valuable, but since as RZM Verisign will be a paid contractor of ICANN, and not the other way around, I do not understand why its views would have a special status here.
-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Andrew Sullivan Sent: Sunday, May 8, 2016 10:11 AM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Lawyers' Comments on CCWG Comments on Draft New ICANN Bylaws
Hi,
I do not understand the reasons for the proposed additions to comment 2. In particular, the changes to 2.3 appear to miss the point of the WG's remarks.
That some as-yet unwritten document will exist in the future is completely irrelevant to whether it ought to be protected from challenge under the Mission. It wouldn'r even matter if that document were only to say "A=A" (or some other necessary truth). The document is being protected from challenge under the Mission, and (1) nobody knows _now_ what it will say in the future and (2) it shouldn't even possibly be inconsistent with the Mission. If it's not inconsistent with the Mission, it can't be challenged effectively. If it _is_ inconsistent with the Mission, it _ought_ to be subject to such a challenge anyway.
Moreover, asking "the groups most directly involved" for their opinion is not the right thing to do. These grandfathering clauses were not in the ICG report, and were not in the CCWG-Accountability report. There is no basis in any request by anyone for the grandfathering in subsections (B) through (E). The lawyers were supposed to implement the reports, not come up with things that people might want and implement those things. These clauses should be deleted, _point finale_, full stop, period. There is no basis for them in the reports, so they're not allowed. This isn't an obscure point, and the previous justifications offered by the lawyers do not address it.
Best regards,
A
On Sat, May 07, 2016 at 05:27:53PM +0000, Grapsas, Rebecca wrote:
Holly Gregory asked that I forward the email below. Please post to the CCWG and BCG lists on her behalf.
Dear CCWG-ACCT Co-Chairs, Members, Participants, and ICANN Staff,
Attached please find comments from Sidley and Adler on the CCWG’s Comments on Draft New ICANN Bylaws (tracked changes in Word and PDF).
Please note that we have serious concerns around comments 9 and 10 and believe that, as currently stated, they are based on misreadings of the draft Bylaws in the relation to the CCWG Proposal.
Kind regards,
Holly and Rosemary
HOLLY J. GREGORY Partner and Co-Chair Corporate Governance & Executive Compensation Practice Group Sidley Austin LLP 787 Seventh Avenue New York, NY 10019 +1 212 839 5853 holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> www.sidley.com<http://www.sidley.com/>
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****************************** 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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_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Andrew Sullivan ajs@anvilwalrusden.com _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross- Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
The problem is that the premise of the edits to the comments in 2.3 is incorrect. The implementation phase is not a time to come up with new provisions that were not in the proposals. It is the time to implement what is in the proposals. Creating new provisions and then inviting the affected parties to comment on them implies that the authority derived from the consensus that backed the proposals doesn’t exist. There was a time when the communities’ input was sought about what they needed in order to proceed with the transition — that was the proposal development phase, and that phase is over. It is important to realize the precedent that the bylaws process is setting for the rest of the implementation phase. If the bylaws do get approved by the Board at the end of this month, it will probably be the first legal document to get finalized in the implementation phase. The SLAs with the RIRs and the IETF have not yet been agreed by the parties; the IPR commitments are in the works; the RZMA contract has yet to be published; the PTI doesn’t exist nor does the ICANN-PTI contract. So if the precedent that gets set with the bylaws is that each of these document processes opens a new opportunity to add provisions or deviate from the consensus proposals, that strikes me as a rather dangerous precedent given that what we’ve all been driving toward is finalization of everything by mid-August. I do not believe there is either the time or the will to re-open the consensus positions as established in the proposals. It may be that the CCWG is not highly concerned about the precedent being set for any of these other documents since its main piece of implementation work is the bylaws. But thus far I have felt that the operational communities, the ICG, and the CCWG have mutually benefited from supporting the same tenets to legitimize the processes we’ve followed. Respect for hard-fought consensus is probably the most important of those tenets. So I think it would be a shame for the CCWG to signal at this point that community consensus as reflected in the proposals is not important, and that is indeed what the edits to the comments in 2.3 signal. Alissa
On May 8, 2016, at 9:16 AM, Mueller, Milton L <milton@gatech.edu> wrote:
I mostly agree with Andrew's comments, but take a slightly more moderate stance.
Regarding the Lawyer's Comments on comment 2.2, I am gratified to see that the Lawyers have made the same point I did: [We do not understand what is meant by a new term that is “based on previously agreed language.”]
Regarding the additions to 2.3, I agree with Andrew that it is not congruent with the sense of the CCWG to ask for more input from "the groups more directly involved." Let me provide a scorecard regarding who those groups would be:
B. The IETF, the ASO and the NRO. C. ICANN and the Root Zone Maintainer, presumably Verisign D. ICANN and PTI E. ICANN
In the case of B, these are communities independent of ICANN who are contracting with it for IANA functions. Yes, it makes sense to get input from them, but we already have input from the IETF and there is no ambiguity about their perspective. I suspect that the ASO/NRO will have a similar perspective - I don't think they will be willing to give a blanket exemption from challenges to a contract that is not signed yet. I do hope the ASO weighs in.
In the cases of C, D and E, we are dealing primarily with ICANN itself. And since the mission limitations are intended to constrain ICANN, I don't think ICANN corporate's input should be determinative. Input from Verisign would be valuable, but since as RZM Verisign will be a paid contractor of ICANN, and not the other way around, I do not understand why its views would have a special status here.
-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Andrew Sullivan Sent: Sunday, May 8, 2016 10:11 AM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Lawyers' Comments on CCWG Comments on Draft New ICANN Bylaws
Hi,
I do not understand the reasons for the proposed additions to comment 2. In particular, the changes to 2.3 appear to miss the point of the WG's remarks.
That some as-yet unwritten document will exist in the future is completely irrelevant to whether it ought to be protected from challenge under the Mission. It wouldn'r even matter if that document were only to say "A=A" (or some other necessary truth). The document is being protected from challenge under the Mission, and (1) nobody knows _now_ what it will say in the future and (2) it shouldn't even possibly be inconsistent with the Mission. If it's not inconsistent with the Mission, it can't be challenged effectively. If it _is_ inconsistent with the Mission, it _ought_ to be subject to such a challenge anyway.
Moreover, asking "the groups most directly involved" for their opinion is not the right thing to do. These grandfathering clauses were not in the ICG report, and were not in the CCWG-Accountability report. There is no basis in any request by anyone for the grandfathering in subsections (B) through (E). The lawyers were supposed to implement the reports, not come up with things that people might want and implement those things. These clauses should be deleted, _point finale_, full stop, period. There is no basis for them in the reports, so they're not allowed. This isn't an obscure point, and the previous justifications offered by the lawyers do not address it.
Best regards,
A
On Sat, May 07, 2016 at 05:27:53PM +0000, Grapsas, Rebecca wrote:
Holly Gregory asked that I forward the email below. Please post to the CCWG and BCG lists on her behalf.
Dear CCWG-ACCT Co-Chairs, Members, Participants, and ICANN Staff,
Attached please find comments from Sidley and Adler on the CCWG’s Comments on Draft New ICANN Bylaws (tracked changes in Word and PDF).
Please note that we have serious concerns around comments 9 and 10 and believe that, as currently stated, they are based on misreadings of the draft Bylaws in the relation to the CCWG Proposal.
Kind regards,
Holly and Rosemary
HOLLY J. GREGORY Partner and Co-Chair Corporate Governance & Executive Compensation Practice Group Sidley Austin LLP 787 Seventh Avenue New York, NY 10019 +1 212 839 5853 holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> www.sidley.com<http://www.sidley.com/>
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-- Andrew Sullivan ajs@anvilwalrusden.com _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross- Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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-----Original Message----- It is important to realize the precedent that the bylaws process is setting for the rest of the implementation phase. If the bylaws do get approved by the Board at the end of this month, it will probably be the first legal document to get finalized in the implementation phase. The SLAs with the RIRs and the IETF have not yet been agreed by the parties; the IPR commitments are in the works; the RZMA contract has yet to be published; the PTI doesn’t exist nor does the ICANN-PTI contract. So if the precedent that gets set with the bylaws is that each of these document processes opens a new opportunity to add provisions or deviate from the consensus proposals, that strikes me as a rather dangerous precedent given that what we’ve all been driving toward is finalization of everything by mid-August. I do not believe there is either the time or the will to re-open the consensus positions as established in the proposals.
This is a very persuasive argument. --MM
Agree On 5/8/2016 8:44 PM, Mueller, Milton L wrote:
-----Original Message----- It is important to realize the precedent that the bylaws process is setting for the rest of the implementation phase. If the bylaws do get approved by the Board at the end of this month, it will probably be the first legal document to get finalized in the implementation phase. The SLAs with the RIRs and the IETF have not yet been agreed by the parties; the IPR commitments are in the works; the RZMA contract has yet to be published; the PTI doesn’t exist nor does the ICANN-PTI contract. So if the precedent that gets set with the bylaws is that each of these document processes opens a new opportunity to add provisions or deviate from the consensus proposals, that strikes me as a rather dangerous precedent given that what we’ve all been driving toward is finalization of everything by mid-August. I do not believe there is either the time or the will to re-open the consensus positions as established in the proposals. This is a very persuasive argument.
--MM _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Matthew Shears | Director, Global Internet Policy & Human Rights Project Center for Democracy & Technology | cdt.org E: mshears@cdt.org | T: +44.771.247.2987
+1 ________________________________ 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 May 8, 2016, at 10:14 AM, Andrew Sullivan <ajs@anvilwalrusden.com<mailto:ajs@anvilwalrusden.com>> wrote: Hi, I do not understand the reasons for the proposed additions to comment 2. In particular, the changes to 2.3 appear to miss the point of the WG's remarks. That some as-yet unwritten document will exist in the future is completely irrelevant to whether it ought to be protected from challenge under the Mission. It wouldn'r even matter if that document were only to say "A=A" (or some other necessary truth). The document is being protected from challenge under the Mission, and (1) nobody knows _now_ what it will say in the future and (2) it shouldn't even possibly be inconsistent with the Mission. If it's not inconsistent with the Mission, it can't be challenged effectively. If it _is_ inconsistent with the Mission, it _ought_ to be subject to such a challenge anyway. Moreover, asking "the groups most directly involved" for their opinion is not the right thing to do. These grandfathering clauses were not in the ICG report, and were not in the CCWG-Accountability report. There is no basis in any request by anyone for the grandfathering in subsections (B) through (E). The lawyers were supposed to implement the reports, not come up with things that people might want and implement those things. These clauses should be deleted, _point finale_, full stop, period. There is no basis for them in the reports, so they're not allowed. This isn't an obscure point, and the previous justifications offered by the lawyers do not address it. Best regards, A On Sat, May 07, 2016 at 05:27:53PM +0000, Grapsas, Rebecca wrote:
Holly Gregory asked that I forward the email below. Please post to the CCWG and BCG lists on her behalf.
Dear CCWG-ACCT Co-Chairs, Members, Participants, and ICANN Staff,
Attached please find comments from Sidley and Adler on the CCWG’s Comments on Draft New ICANN Bylaws (tracked changes in Word and PDF).
Please note that we have serious concerns around comments 9 and 10 and believe that, as currently stated, they are based on misreadings of the draft Bylaws in the relation to the CCWG Proposal.
Kind regards,
Holly and Rosemary
HOLLY J. GREGORY Partner and Co-Chair Corporate Governance & Executive Compensation Practice Group Sidley Austin LLP 787 Seventh Avenue New York, NY 10019 +1 212 839 5853 holly.gregory@sidley.com<mailto:holly.gregory@sidley.com><mailto:holly.gregory@sidley.com> www.sidley.com<http://www.sidley.com><http://www.sidley.com/<http://www.sidley.com/>>
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I'm confused. Wouldn't this text allow for the HR WS2 process to create human rights obligations for ICANN? Lawyers’ Comment: The draft CCWG comment letter does not include a recommendation regarding the last sentence of Draft Bylaws Section 1.2(b)(viii), which ends, “except as provided herein.” We suggest that the CCWG recommend that the sentence be modified to refer to Section 27.3 of the Draft Bylaws so that it reads: “This Core Value does not create and shall not be interpreted to create any additional obligations for ICANN and shall not obligate ICANN to respond to or consider any complaint, request or demand seeking the enforcement of human rights by ICANN, except as provided in Section 27.3.” I thought that the CCWG was clear that there should be no circumstances in which ICANN should be obligated to respond to or consider any complaint, request or demand seeking the enforcement of human rights. Why are we creating the possibility for exceptions? The clause should be deleted. ________________________________ 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 May 7, 2016, at 1:32 PM, Grapsas, Rebecca <rebecca.grapsas@sidley.com<mailto:rebecca.grapsas@sidley.com>> wrote: Holly Gregory asked that I forward the email below. Please post to the CCWG and BCG lists on her behalf. Dear CCWG-ACCT Co-Chairs, Members, Participants, and ICANN Staff, Attached please find comments from Sidley and Adler on the CCWG’s Comments on Draft New ICANN Bylaws (tracked changes in Word and PDF). Please note that we have serious concerns around comments 9 and 10 and believe that, as currently stated, they are based on misreadings of the draft Bylaws in the relation to the CCWG Proposal. Kind regards, Holly and Rosemary HOLLY J. GREGORY Partner and Co-Chair Corporate Governance & Executive Compensation Practice Group Sidley Austin LLP 787 Seventh Avenue New York, NY 10019 +1 212 839 5853 holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> www.sidley.com<http://www.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. **************************************************************************************************** <CCWG Comments on Draft New ICANN Bylaws - Sidley Adler Comments May 7, 2016.pdf> <CCWG Comments on Draft New ICANN Bylaws - Sidley Adler Comments, May 7, ....docx> _______________________________________________ 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
Perhaps we should get clarification on what "herein" mean in legal terms. However in simple English, I will assume that it means anything provided in the bylaw relating to HR and since no such text is provided yet(pending the FoI) then I don't think any obligation would be applicable. However, if "herein" implies that ICANN's commitment to HR will/can be tested/challenged upon every action/process defined in the bylaw then I am in strong agreement with Brett. Regards Sent from my LG G4 Kindly excuse brevity and typos On 8 May 2016 21:01, "Schaefer, Brett" <Brett.Schaefer@heritage.org> wrote:
I'm confused. Wouldn't this text allow for the HR WS2 process to create human rights obligations for ICANN?
Lawyers’ Comment: The draft CCWG comment letter does not include a recommendation regarding the last sentence of Draft Bylaws Section 1.2(b)(viii), which ends, “except as provided herein.” We suggest that the CCWG recommend that the sentence be modified to refer to Section 27.3 of the Draft Bylaws so that it reads: “This Core Value does not create and shall not be interpreted to create any additional obligations for ICANN and shall not obligate ICANN to respond to or consider any complaint, request or demand seeking the enforcement of human rights by ICANN, except as provided in Section 27.3.”
I thought that the CCWG was clear that there should be no circumstances in which ICANN should be obligated to respond to or consider any complaint, request or demand seeking the enforcement of human rights. Why are we creating the possibility for exceptions? The clause should be deleted.
________________________________ 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 May 7, 2016, at 1:32 PM, Grapsas, Rebecca <rebecca.grapsas@sidley.com <mailto:rebecca.grapsas@sidley.com>> wrote:
Holly Gregory asked that I forward the email below. Please post to the CCWG and BCG lists on her behalf.
Dear CCWG-ACCT Co-Chairs, Members, Participants, and ICANN Staff,
Attached please find comments from Sidley and Adler on the CCWG’s Comments on Draft New ICANN Bylaws (tracked changes in Word and PDF).
Please note that we have serious concerns around comments 9 and 10 and believe that, as currently stated, they are based on misreadings of the draft Bylaws in the relation to the CCWG Proposal.
Kind regards,
Holly and Rosemary
HOLLY J. GREGORY Partner and Co-Chair Corporate Governance & Executive Compensation Practice Group Sidley Austin LLP 787 Seventh Avenue New York, NY 10019 +1 212 839 5853 holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> www.sidley.com<http://www.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.
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<CCWG Comments on Draft New ICANN Bylaws - Sidley Adler Comments May 7, 2016.pdf> <CCWG Comments on Draft New ICANN Bylaws - Sidley Adler Comments, May 7, ....docx> _______________________________________________ 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
participants (8)
-
Alissa Cooper -
Andrew Sullivan -
Grapsas, Rebecca -
Jordan Carter -
Matthew Shears -
Mueller, Milton L -
Schaefer, Brett -
Seun Ojedeji