[CCWG-ACCT] Regarding bylaws drafting

Tue Jun 30 06:24:51 UTC 2015

I think #3 is a bit of a fantasy.  The idea of all the lawyers sitting in a
room, collaborating and singing Kumbaya is not likely to happen.  There
will inevitably be a back and forth between the sets of lawyers, and each
set will need to confer with their clients.  Think ping-pong, not tango.

On Tue, Jun 30, 2015 at 2:07 AM, Mathieu Weill <mathieu.weill at afnic.fr>
wrote:

>  Dear Greg,
>
> Please note that a slightly amended version has been circulated for
> consideration during this CCWG call.
>
> Best
> Mathieu
>
>
> Le 30/06/2015 07:45, Greg Shatan a écrit :
>
>  My comments below.
>
>  Greg
>
> On Wed, Jun 24, 2015 at 10:36 PM, Bruce Tonkin <
> Bruce.Tonkin at melbourneit.com.au> wrote:
>
>> Hello All,
>>
>> Just following up on my comments during the CCWG session this afternoon
>> on the drafting process.
>>
>> I recommend considering the following approach:
>>
>> - Identify a sub-team of the CCWG to write a short brief for each bylaws
>> change required - including any draft text that has been developed so far
>>
>
>   GSS: Agree that we should have a brief/specifications/terms of
> reference/term sheet that the CCWG supports, and that the drafting should
> be done (and to a fair extent has already been done) by a smaller group,
> since drafting in a group of 40 would be painful and inefficient.
>
>
>>
>> - Get the CCWG external council to confirm that the brief is achievable
>> and is consistent with their earlier advice
>>
>
>   GSS: Agree that we should have counsel review what we prepare.
>
>
>>
>> - Get the ICANN legal team to draft bylaws changes consistent with the
>> brief
>>
>
>   GSS:  Neither agree nor disagree. Whichever legal team prepares the
> first draft, the other legal team will do what is necessary to deal with
> issues they note in that draft. Twas ever thus. There may be a modest cost
> savings if ICANN inside counsel prepares the first draft, but reviewing the
> first draft will still be a reasonable amount of work for CCWG's counsel.
>
>
>>
>> -  the CCWG sub-team confirms that the language meets the brief
>>
>
>   GSS:  Here is where I most decidedly disagree.  We are preparing legal
> instruments here, with language that needs to be prepared to a particular
> standard and with a particular style and vocabulary.  If ICANN legal
> prepares the first draft, it will need to go back to CCWG counsel to be
> reviewed and revised prior to or at the same time as the CCWG itself
> reviews the draft.  I expect ICANN would do the same if we operate in the
> other direction.  In any event, first drafts are rarely, if ever, the final
> draft; there is always some improvement necessary, even if the parties have
> agreed completely on their intentions (which is also not that common).
> It's just the nature of the activity.  Of course, the further apart the
> parties are on substance, the more "rounds" of drafts it takes to come to
> rest.  But, in any event we can expect at least a couple of rounds of
> drafts before ICANN and the CCWG are satisfied with the result.  And we
> clearly need our counsel to take a leading role from their point of view in
> "doing the necessary" to make sure the by-law drafts meet the needs and
> expectations of the CCWG.  (Brief soapbox moment: There is as much skill,
> knowledge and experience involved in the art of legal drafting as there is
> in any other sophisticated professional activity.  The fact that it does
> not involve manual or numerical dexterity seems to make people think that
> laymen are more likely to do a credible job of legal drafting, than they
> would performing surgery or plotting the trajectory of a rocket.  DIY
> legal drafting is a rotten idea, with its own costs and consequences,
> though admittedly not physical death or destruction -- at least not
> immediately.)
>
>>
>> - where necessary (e.g. if the CCWG sub team does not believe that the
>> draft meets the requirements)  get the CCWG external council to confirm
>> that the draft is consistent with the objectives of the brief  (use this
>> last step when necessary as we are using public funds to pay for the extra
>> advice and we should be prudent with expenditure)
>>
>
>   GSS:  I would not characterize this as "extra advice" -- it is
> critical, core and necessary advice.  The bylaws are one of the points of
> legal execution; it would be highly imprudent to shy away from using
> counsel at this point, of all points.  And the job of outside counsel is
> not merely to confirm the draft is consistent with the objectives of the
> brief; it's their job to help us get it right from the CCWG's point of
> view.  As for the use of "public funds" -- perhaps this is a semantic
> difference, but I think of "public funds" as those appropriated and
> expended by governments, and we heard numerous times in BA that ICANN is
> not a government.  Semantics aside, all involved are using the same funds,
> by whatever name, and I hope that ICANN legal, if it takes the first draft,
> will keep that in mind as they draft so that they come as close as possible
> to the brief of the CCWG, so that the CCWG's counsel does not have too
> revise too much when it undertakes its review.  "Public funds" aside, what
> is most important is that we are operating in the "public eye" and keenly
> aware of the "public trust" that has been placed on the CCWG just as much
> as it has been placed on ICANN-the-corporation.  This is an inflection
> point in ICANN's history -- not getting it right will have much greater
> costs -- financial, reputational, governance-wise, etc. -- than a few hours
> of careful legal review and revision process of the legal tools (i.e., the
> bylaws) that we are using to achieve a great deal of the objectives that we
> will have spent thousands and thousands of unpaid and paid hours, a good
> deal of money, and a great deal of blood, sweat and tears to accomplish.
> This is not the time to become gun-shy about getting appropriate legal
> advice -- there is far too much riding on this part of the process to do
> so.
>
>   Consistent with the above, we have every responsibility to work in a
> cost-effective and efficient manner with counsel and to demand the same
> from them.  Perversely, it's my experience that trying to cut corners with
> counsel tends to end up costing more and taking more time and/or achieving
> a less desirable result than staying the course with counsel.
>
>>
>> - once the CCWG sub team is happy with the text - it should be reviewed
>> by the whole CCWG, before posting for public comment
>>
>
>   GSS:  I think it goes without saying that the CCWG will need to review
> and support everything that is going to be posted for public comment,
> including without limitation the bylaws.  That said, there's no harm in
> saying it. 
>
>
>>
>>
>> For example, you could write a short brief on the changes required to
>> incorporate the AoC reviews.   This could include simply  a cut and paste
>> of the relevant AoC text - along  with any tweeks agreed within the CCWG -
>> maybe changing the proposed timing of reviews, or perhaps the membership of
>> the review team etc.
>>
>> - ICANN legal can then draft language  for the bylaws that is consistent
>> across the whole bylaws document
>>
>
>   GSS: I expect that consistency across the bylaws -- both proposed and
> existing -- will be an element of drafting and review at every step along
> the way.  That said, I'm sure that when the individual pieces all come to
> rest, there will be an overall review by ICANN legal and CCWG counsel
> focused on consistency so that both ICANN legal and the CCWG are satisfied
> that any inconsistencies or unintended consequences have been dealt with.
> After all, we are all equally invested in getting it right.
>
>>
>>
>>
>>
>> Regards,
>> Bruce Tonkin
>>
>>
>>   Best regards,
>
>   Greg 
>
>
>>
>> -
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>
>
>
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>
> --
> *****************************
> Mathieu WEILL
> AFNIC - directeur général
> Tél: +33 1 39 30 83 06mathieu.weill at afnic.fr
> Twitter : @mathieuweill
> *****************************
>
>
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