[CCWG-ACCT] Adler & Colvin Comments on Executive Summary Draft
Phil Corwin
psc at vlaw-dc.com
Wed Nov 11 12:58:54 UTC 2015
I appreciate the efforts of both outside law firms, Sidley as well as Adler, to provide useful feedback under difficult circumstances.
Those difficulties are self-imposed by a timeline hastily put out post-Dublin with concern mostly for working backwards from a theoretical "drop dead" date rather than careful consideration of whether it afforded the necessary time to develop and then fully explain a substantially revised designator accountability model.
Today is Wednesday. The current target date for publishing the Executive Summary (ES) is Sunday, four days away. There seems to be consensus that the current ES draft is repetitive, inaccurate in spots, fails to provide necessary clarity, and needs a lot more work given that it -- rather than the actual language of a full report -- will be the basis of many public comments.
I am skeptical that the ES can be put into acceptable final form -- in terms of accuracy, clarity, and more useful descriptions -- within the next four days. (Noting of course that the participants in this effort have nothing else to do in their lives but spend every waking moment devoted to this particular enterprise, and that working at breakneck speed and without sufficient rest and time for reflection is a surefire prescription for a Grade A work product.)
But even if it is, it will suffer from the fundamental disability of being an Executive Summary of a proposal which does not yet exist in final form, and of which critical elements -- such as Stress Test 18 relating to GAC "consensus" and the weight its advice must be accorded by the Board, and the Mission statement as it relates to the distinction between necessary and justified ICANN contract compliance enforcement and impermissible "regulation" of Internet use -- remain strongly debated and for which final language does not yet exist.
I have reviewed many Executive Summaries over the years, and have seem a wide range of accuracy, comprehensiveness and clarity among them. But never in my life can I recall seeing an Executive Summary published when the underlying document it purported to summarize did not yet exist in final form. This an amazing new concept, though one of questionable legitimacy and usefulness.
Philip S. Corwin, Founding Principal
Virtualaw LLC
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-----Original Message-----
From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Edward Morris
Sent: Tuesday, November 10, 2015 10:23 PM
To: avri at acm.org
Cc: accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] Adler & Colvin Comments on Executive Summary Draft
I certainly share all of Avri's concerns and would like to thank her for articulating them in such clear fashion. We need to be careful with the executive summary: due to time pressures and the holiday season this might be the only thing a number of people read. We need to ensure it is as comprehensive as possible.
Ed
Sent from my iPhone
> On Nov 11, 2015, at 3:17 AM, Avri Doria <avri at acm.org> wrote:
>
> Hi,
>
> Thanks for this review.
>
> I have just had the opportunity to read the so-clle "Executive summary"
> and appreciate many of the comments that are being made. I am
> obviously too late to review this in any detail and did a quick read
> through of this commented version. I do want to add to the impression
> that is a long way from being ready for distribution.
>
> Some areas that troubled me in my quick read:
>
> - the absence of any discussion of how these changes complete the
> requirements for transition in terms of separability and enforcing
> separability decisions by the empowered community.
> - the lack of discussion of how, without statutory authority, the
> empowered community still has recourse to the courts if necessary that
> can withstand the withering influence of so-called fiduciary decisions
> by the board
> - the absence of any discussion of how the statutory membership right
> of inspection is to be included under the empowered community model
> - a reference in regard to human rights that while there were no
> statutory obligations on ICANN, the backstop of NTIA was assurance
> that human rights, especially those for freedom of expression and free
> flow in information on the Internet, would be respected, and that the
> bylaw is a way to attempt to replace that NTIA backstop.
>
> As this document stands I do not see it as explaining why these
> accountability issues are necessary when, and if, the NTIA backstop is
> lost. I think that is essential in an "executive summary", not matter
> what its length.
>
> Thanks
>
> avri
>
>
>> On 10-Nov-15 22:53, Rosemary E. Fei wrote:
>>
>> Dear Co-Chairs:
>>
>> Adler & Colvin’s comments on the Executive Summary are attached; our
>> apologies for missing the deadline (by 110 minutes). As Holly noted,
>> these comments have not been reviewed by or coordinated with Sidley.
>> Similarly, we have not had time to go back through proposals, emails,
>> and meeting notes to confirm our recollection of how various
>> decisions have been made to date, so some comments may reflect the
>> wrong understanding and should be ignored. The mark-up includes both
>> some line edits, and comments in bubbles. We attach a PDF, to ensure
>> the comment bubbles will be visible regardless of users’ software.
>>
>> We agree with Sidley’s overall comments on length and duplication,
>> and more substantively on how particular community powers will be
>> exercised. Given that this is an Executive Summary, you might
>> consider presenting a single full escalation pathway as an
>> illustration only, and then note that the paths will vary as
>> appropriate for the exercise of other community powers. A chart
>> comparing escalation pathways across powers and noting the differing
>> required thresholds for approval at each stage by power, might be
>> more useful to understanding than the separate detailed descriptions
>> of each escalation path provided in this draft.
>>
>> Please let us know how we may assist you further.
>>
>> Rosemary
>>
>> Rosemary E. Fei
>> Adler & Colvin
>> 235 Montgomery Street, Suite 1220
>> San Francisco, CA 94104
>> 415/421-7555 (phone)
>> 415/421-0712 (fax)
>> rfei at adlercolvin.com
>> www.adlercolvin.com
>>
>>
>>
>>
>>
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>>
>> *From: *<accountability-cross-community-bounces at icann.org
>> <mailto:accountability-cross-community-bounces at icann.org>> on behalf
>> of "Gregory, Holly" <holly.gregory at sidley.com
>> <mailto:holly.gregory at sidley.com>>
>> *Date: *Tuesday 10 November 2015 at 8:37 p.m.
>> *To: *"mathieu.weill at afnic.fr <mailto:mathieu.weill at afnic.fr>"
>> <mathieu.weill at afnic.fr <mailto:mathieu.weill at afnic.fr>>,
>> "thomas at rickert.net <mailto:thomas at rickert.net>" <thomas at rickert.net
>> <mailto:thomas at rickert.net>>, "leonfelipe at sanchez.mx
>> <mailto:leonfelipe at sanchez.mx>" <leonfelipe at sanchez.mx
>> <mailto:leonfelipe at sanchez.mx>>
>> *Cc: *Sidley ICANN CCWG <sidleyicannccwg at sidley.com
>> <mailto:sidleyicannccwg at sidley.com>>, "ACCT-Staff
>> (acct-staff at icann.org <mailto:acct-staff at icann.org>)"
>> <acct-staff at icann.org <mailto:acct-staff at icann.org>>,
>> "ICANN at adlercolvin.com <mailto:ICANN at adlercolvin.com>"
>> <ICANN at adlercolvin.com <mailto:ICANN at adlercolvin.com>>,
>> Accountability Cross Community
>> <accountability-cross-community at icann.org
>> <mailto:accountability-cross-community at icann.org>>
>> *Subject: *[CCWG-ACCT] Sidley Comments on Executive Summary Draft
>>
>>
>>
>> Dear Co-Chairs and CCWG,
>>
>>
>>
>> Attached please find Sidley’s comments on the draft Executive
>> Summary. Given the very short window for review we have not had time
>> to coordinate our comments with the Adler firm and apologize for
>> that. Adler will be sending their comments separately. Please note
>> also that given the very short time frame we have not been able to go
>> back and check against the transcripts of the various meetings and
>> therefore are relying on memory for our understanding of where the
>> CCWG has formed consensus (or near consensus) on various issues.
>>
>>
>>
>> Overall we find the Executive Summary overly long with significant
>> redundancies. We think it would benefit from a thorough edit by
>> your professional writers. We also believe that the summary is
>> inaccurate in its description of the community processes with respect
>> to the decisions to: (1) remove individual directors and (2) approve
>> Fundamental Bylaws. (We agree with Jordan’s comments on the
>> Fundamental Bylaws.) We also recommend that a more pointed discussion
>> of the CWG dependencies be added so that the reader can understand
>> the broader context in which the Proposal has been developed. We
>> have also edited errors in the description of the legal framework
>> that applies. We have noted these comments in the draft.
>>
>>
>>
>> Please let us know if you would like to discuss or if we can be of
>> further assistance with this draft.
>>
>>
>>
>> Kind regards,
>>
>> Holly
>>
>>
>>
>> *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 at sidley.com <mailto:holly.gregory at sidley.com>
>> www.sidley.com <http://www.sidley.com/>
>>
>> http://www.sidley.com/files/upload/signatures/SA-autosig.png
>> <http://www.sidley.com/> *SIDLEY AUSTIN LLP*
>>
>>
>>
>>
>>
>>
>>
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