[CCWG-ACCT] inconsistency in bylaws spotted
Kavouss Arasteh
kavouss.arasteh at gmail.com
Tue Apr 26 10:59:59 UTC 2016
Dear All,
If everybody, agrees with Grec Language, it is also good for me.
KAVOUSS
2016-04-26 12:36 GMT+02:00 James Gannon <james at cyberinvasion.net>:
> I support Gregs language (Multistkehoderism in action here folks)
>
>
>
>
> On 26/04/2016, 11:28, "accountability-cross-community-bounces at icann.org
> on behalf of Jorge.Cancio at bakom.admin.ch" <
> accountability-cross-community-bounces at icann.org on behalf of
> Jorge.Cancio at bakom.admin.ch> wrote:
>
> >Sounds good!
> >Jorge
> >
> >-----Ursprüngliche Nachricht-----
> >Von: accountability-cross-community-bounces at icann.org [mailto:
> accountability-cross-community-bounces at icann.org] Im Auftrag von Matthew
> Shears
> >Gesendet: Dienstag, 26. April 2016 12:24
> >An: Niels ten Oever <lists at nielstenoever.net>;
> accountability-cross-community at icann.org
> >Betreff: Re: [CCWG-ACCT] inconsistency in bylaws spotted
> >
> >Agreed +1 to Greg's formulation.
> >
> >On 4/26/2016 9:11 AM, Niels ten Oever wrote:
> >> Dear all,
> >>
> >> Thank you for your great reactions. The proposal by Holly is much
> >> better than what we had in the proposed bylaws, but I have to
> >> completely agree with Gregs worries and proposal underneath, since it
> >> leaves no room for interpretation which will benefit our work in
> Workstream 2.
> >>
> >> So +1 to Greg.
> >>
> >> All the best,
> >>
> >> Niels
> >>
> >>
> >>
> >> On 04/26/2016 01:08 AM, Greg Shatan wrote:
> >>> Holly and All,
> >>>
> >>> I'm concerned that by reverting to the language in the Proposal, we
> >>> are perpetuating the language that led to confusion in the first
> >>> place. It should be clear that this is a "business as usual" process
> >>> of Chartering Organization review of a CCWG-Accountability consensus
> >>> recommendations, just as was done with the Proposal. i would suggest
> >>> adding the following clarifying language:
> >>>
> >>> "(a) The Core Value set forth in Section 1.2(b)(viii) shall have no
> >>> force or effect unless and until a framework of interpretation for
> >>> human rights ("FOI-HR") is approved by (i) the CCWG-Accountability as
> >>> a consensus recommendation in Work Stream 2 /_(including Chartering
> >>> Organizations' approval *as set forth in the CCWG-Accountability
> >>> Charter*), and _/ (ii) each of the CCWG-Accountability's chartering
> >>> organizations and (iii) the Board (in the case of the Board, using
> >>> the same process and criteria used by the Board to consider the Work
> >>> Stream
> >>> 1 Recommendations)."
> >>>
> >>> I look forward to your thoughts.
> >>>
> >>> Greg
> >>>
> >>> On Mon, Apr 25, 2016 at 3:48 PM, Gregory, Holly
> >>> <holly.gregory at sidley.com <mailto:holly.gregory at sidley.com>> wrote:
> >>>
> >>> Dear CCWG-Accountability,
> >>>
> >>> ____
> >>>
> >>> We have been following this email stream and in re-reading the
> >>> language of the Bylaws we understand how the language could be
> >>> misread to call for a standard higher than what is intended.
> >>> Therefore we propose that a clarification would be helpful.
> >>> Specifically, to remove any confusion and help assure that the
> >>> Bylaws are read in a manner that is consistent with the proposal,
> we
> >>> recommend the following clarifying change to Section 27.3: ____
> >>>
> >>> ____
> >>>
> >>> "(a) The Core Value set forth in Section 1.2(b)(viii) shall have
> no
> >>> force or effect unless and until a framework of interpretation for
> >>> human rights ("FOI-HR") is approved by (i) the CCWG-Accountability
> >>> as a consensus recommendation in Work Stream 2 /_(including
> >>> Chartering Organizations' approval), and _/ (ii) each of the
> >>> CCWG-Accountability's chartering organizations and (iii) the Board
> >>> (in the case of the Board, using the same process and criteria
> used
> >>> by the Board to consider the Work Stream 1 Recommendations)."
> >>> ____
> >>>
> >>> __ __
> >>>
> >>> If you agree, we recommend that you include this in the CCWG's
> >>> public comment. ____
> >>>
> >>> __ __
> >>>
> >>> 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 <tel:%2B1%20212%20839%205853>
> >>> 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*____
> >>>
> >>> ____
> >>>
> >>> __ __
> >>>
> >>> *From:*accountability-cross-community-bounces at icann.org
> >>> <mailto:accountability-cross-community-bounces at icann.org>
> >>> [mailto:accountability-cross-community-bounces at icann.org
> >>> <mailto:accountability-cross-community-bounces at icann.org>] *On
> >>> Behalf Of *McAuley, David
> >>> *Sent:* Monday, April 25, 2016 2:12 PM
> >>> *To:* Dr. Tatiana Tropina;
> accountability-cross-community at icann.org
> >>> <mailto:accountability-cross-community at icann.org>
> >>>
> >>>
> >>> *Subject:* Re: [CCWG-ACCT] inconsistency in bylaws spotted____
> >>>
> >>> __ __
> >>>
> >>> In my personal opinion, I think Tatiana was correct in observing
> >>> that there can be different interpretations in this respect.
> >>> ____
> >>>
> >>> __ __
> >>>
> >>> I respectfully don't think we can now say that decision making
> >>> regarding the FoI in WS2 is simply based on the charter. The
> charter
> >>> set WS1 in motion and in WS1 we specifically agreed that the HR
> >>> bylaw will not enter into force until, among other things, an FoI
> is
> >>> developed as a consensus WS2 recommendation "(including Chartering
> >>> Organizations' approval)" - we cannot delete that quoted bylaw
> >>> language as it means something. ____
> >>>
> >>> __ __
> >>>
> >>> Here is what the draft bylaw-language in the proposal
> >>> provides:____
> >>>
> >>> __ __
> >>>
> >>> "Within its Core Values, ICANN will commit to respect
> >>> internationally recognized Human Rights as required by applicable
> >>> law. This provision does not create any additional obligation for
> >>> ICANN to respond to or consider any complaint, request, or demand
> >>> seeking the enforcement of Human Rights by ICANN. This Bylaw
> >>> provision will not enter into force until (1) a Framework of
> >>> Interpretation for Human Rights (FOI-HR) is developed by the
> >>> CCWG-Accountability as a consensus recommendation in Work Stream 2
> >>> (including Chartering Organizations' approval) and (2) the FOI-HR
> is
> >>> approved by the ICANN Board using the same process and criteria it
> >>> has committed to use to consider the Work Stream 1
> >>> recommendations."____
> >>>
> >>> __ __
> >>>
> >>> If that requires further clarity it seems to me that it will need
> to
> >>> be developed in WS2 given that our charge now is to see if the
> >>> bylaws draft tracks the final proposal. In this respect it
> appears
> >>> to do so.____
> >>>
> >>> __ __
> >>>
> >>> David McAuley____
> >>>
> >>> __ __
> >>>
> >>> *From:*accountability-cross-community-bounces at icann.org
> >>> <mailto:accountability-cross-community-bounces at icann.org>
> >>> [mailto:accountability-cross-community-bounces at icann.org] *On
> Behalf
> >>> Of *Dr. Tatiana Tropina
> >>> *Sent:* Sunday, April 24, 2016 4:42 PM
> >>> *To:* accountability-cross-community at icann.org
> >>> <mailto:accountability-cross-community at icann.org>
> >>> *Subject:* Re: [CCWG-ACCT] inconsistency in bylaws spotted____
> >>>
> >>> __ __
> >>>
> >>> Hi all,
> >>> I certainly understand that there can be different interpretations
> >>> of the intent of the report.
> >>>
> >>> The item (ii) of the bylaw in the report says: "*consensus
> >>> recommendation in Work Stream 2 *(including Chartering
> >>> Organizations' approval)".
> >>>
> >>> We have even have different thresholds for consensus in the report
> >>> itself, which one is applicable here? What is the process for
> >>> reaching this consensus? The same as for WS1? Then we might need a
> >>> reference to WS1 may be? Furthermore: will everything developed in
> >>> the WS2 require a full consensus and approval of all COs? I read
> the
> >>> chapter in the bylaws about WS2 and it refers to the process and
> >>> charter of WS1. No requirement for full consensus or approval of
> the
> >>> all the COs there. Why does not HR bylaw refer to the previous
> >>> section in the bylaw that specifically outlines the requirements
> for
> >>> Ws, but introduces the approval of all COs instead? I don't mind
> >>> this, but the clarification seems to be necessary.
> >>>
> >>> Is there already a definition of consensus for the purpose of the
> >>> WS2 and if yes, is it the same that has been introduced for HR FOI
> >>> in HR bylaw text? This is my question.
> >>>
> >>> If the answer is "yes" - then there is no inconsistency. However,
> I
> >>> agree with Niels that this should be clarified, so we all will be
> on
> >>> the same page.
> >>>
> >>> Cheers
> >>> Tanya ____
> >>>
> >>> On 24/04/16 20:44, Seun Ojedeji wrote:____
> >>>
> >>> Hi,____
> >>>
> >>> Are you saying that the bylaw text is different from the
> intent
> >>> of the report as I don't think that is the case. The report
> >>> indeed required approval of the CO which was rightly reflected
> >>> as item ii in the bylaw text.____
> >>>
> >>> I therefore think the bylaw text is consistent with the intent
> >>> of the report.____
> >>>
> >>> Regards____
> >>>
> >>> Sent from my LG G4
> >>> Kindly excuse brevity and typos____
> >>>
> >>> On 24 Apr 2016 7:01 p.m., "Niels ten Oever"
> >>> <lists at nielstenoever.net <mailto:lists at nielstenoever.net>>
> >>> wrote:____
> >>>
> >>>
> >>> Dear all,
> >>>
> >>> I hope this email finds you well. Upon re-reading the bylaw
> text
> >>> I came
> >>> across the following issue which does not seem to be in
> >>> accordance with
> >>> what we agreed in WS1.
> >>>
> >>> The CCWG report says where it comes to Human Rights:
> >>>
> >>> [ccwg report]
> >>>
> >>> "Within its Core Values, ICANN will commit to respect
> >>> internationally
> >>> recognized
> >>> Human Rights as required by applicable law. This provision
> does not
> >>> create any
> >>> additional obligation for ICANN to respond to or consider any
> >>> complaint, request,
> >>> or demand seeking the enforcement of Human Rights by ICANN.
> >>> This Bylaw
> >>> provision will not enter into force until (1) a Framework of
> >>> Interpretation for Human
> >>> Rights (FOI-HR) is developed by the CCWG-Accountability as a
> >>> consensus
> >>> recommendation in Work Stream 2 (including Chartering
> >>> Organizations'
> >>> approval)
> >>> and (2) the FOI-HR is approved by the ICANN Board using the
> same
> >>> process and
> >>>
> >>> criteria it has committed to use to consider the Work Stream 1
> >>> recommendations."
> >>>
> >>> [/ccwg report]
> >>>
> >>> But when I look at the bylaw text it says:
> >>>
> >>> [proposed bylaw]
> >>>
> >>> The Core Value set forth in Section 1.2(b)(viii) shall have no
> >>> force or
> >>> effect unless and until a framework of interpretation for
> human
> >>> rights
> >>> ("FOI-HR") is approved by (i) the CCWG-Accountability as a
> consensus
> >>> recommendation in Work Stream 2, (ii) each of the
> >>> CCWG-Accountability's
> >>> chartering organizations and (iii) the Board (in the case of
> the
> >>> Board,
> >>> using the same process and criteria used by the Board to
> >>> consider the
> >>> Work Stream 1 Recommendations).
> >>>
> >>> [/proposed bylaw]
> >>>
> >>> Now it is explicitly required that all Chartering
> Organizations
> >>> approve
> >>> the Framework of Interpretation, whereas during WS1 it was
> >>> agreed that
> >>> for WS2 we would use exactly the same process of approval as
> for
> >>> WS1.
> >>>
> >>> What makes this even more divergent is that this clause is
> only
> >>> added
> >>> for Human Rights in the proposed bylaws and not for any other
> bylaw.
> >>> Whereas there was no exceptional procedure for human rights
> >>> discussed
> >>> for WS2.
> >>>
> >>> What I propose is to refer to the charter of the CCWG on
> >>> Accountability
> >>> for the decision making of all processes in WS2 (including the
> >>> decision
> >>> making on the FoI on Human Rights) and not create separate or
> new
> >>> requirements or processes.
> >>>
> >>> All the best,
> >>>
> >>> Niels
> >>>
> >>>
> >>>
> >>> --
> >>> Niels ten Oever
> >>> Head of Digital
> >>>
> >>> Article 19
> >>> www.article19.org
> >>>
> >>> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.article19.or
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> >>>
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> >>>
> >>>
> >>>
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> >--
> >
> >Matthew Shears | Director, Global Internet Policy & Human Rights Project
> Center for Democracy & Technology | cdt.org
> >E: mshears at cdt.org | T: +44.771.247.2987
> >
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