[CCWG-ACCT] Adler & Colvin Comments on Executive Summary Draft

Wed Nov 11 16:25:24 UTC 2015

On Wed, Nov 11, 2015 at 12:13 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.
>

Thanks Avri for noting this and to both counsel for highlighting it. The
abscence of discussion of this community power in the draft, with only a
single line mentioning it and no explanation (or even a reference) of how
it is proposed to work is a huge gap.

Thank you,

Brenden Kuerbis

> - 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
> >
> >
> >
> >
> >
> > _____________________________
> >
> > Adler & Colvin is a San Francisco Green Business certified by the City
> > and County of San Francisco. Please consider the environment before
> > you print this email.
> >
> >
> >
> > *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*
> >
> >
> >
> >
> >
> >
> >
> >
> ****************************************************************************************************
> > 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 at icann.org
> > https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
>
> ---
> This email has been checked for viruses by Avast antivirus software.
> https://www.avast.com/antivirus
>
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20151111/ec8b7481/attachment-0001.html>