[CCWG-ACCT] inconsistency in bylaws spotted
Dr. Tatiana Tropina
t.tropina at mpicc.de
Tue Apr 26 18:03:28 UTC 2016
Again, +1 to Greg.
The text of the report doesn't state that all the Chartering
Organisations shall approve the proposal, so the bylaw draft
misinterpreted the text.
Best,
Tanya
On 26/04/16 19:58, Greg Shatan wrote:
> The stated premise of your earlier question is incorrect. The
> existing text does not state that approval of all the Chartering
> Organizations is required.
>
> The answer to the question itself is yes, which is consistent with the
> Charter of the CCWG, consistent with the Proposal and consistent with
> the actions of the CCWG in forwarding the WS1 Proposal to the Board.
>
> Greg
>
> On Tue, Apr 26, 2016 at 1:48 PM, Schaefer, Brett
> <Brett.Schaefer at heritage.org <mailto:Brett.Schaefer at heritage.org>> wrote:
>
> So the answer to my earlier question is “yes”.
>
>
>
> The existing text states that approval of all the Chartering
> Organizations is required. So the purpose of this addition is to
> clarify that the Chairs may forward a proposal to the Board even
> if all of the Chartering Organizations do not approve it?
>
>
>
>
>
>
>
>
>
> *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 *Greg Shatan
> *Sent:* Tuesday, April 26, 2016 1:20 PM
> *To:* McAuley, David
> *Cc:* Sidley ICANN CCWG; ICANN at adlercolvin.com
> <mailto:ICANN at adlercolvin.com>;
> accountability-cross-community at icann.org
> <mailto:accountability-cross-community at icann.org>
> *Subject:* Re: [CCWG-ACCT] inconsistency in bylaws spotted
>
>
>
> All:
>
>
>
> My revision is NOT inconsistent with the Supplemental Final
> Proposal and does NOT "change the report."
>
>
>
> The Proposal states, no less than 3 times, that* "**acceptance of
> the FOI-HR will require the same process as for Work Stream 1
> recommendations (as agreed for all Work Stream 2 recommendations)":*
>
>
>
> In Para. 168; Annex 6, Para. 5; and Annex 6, Para. 19, the
> following language is repeated verbatim*:* The proposed draft
> Bylaw also clarifies that no IRP challenges can be made on the
> grounds of this Bylaw until a Framework of Interpretation on
> Human Rights (FOI-HR) is developed and approved as part of
> Work Stream 2 activities. It further clarifies that acceptance
> of the FOI-HR will require the same process as for Work Stream
> 1 recommendations (as agreed for all Work Stream 2
> recommendations).
>
>
>
> This clearly shows the group's intent regarding the drafting of a
> Bylaw, which is that *NO* special process or heightened level of
> approval was intended for the FOI. Where we have had special
> processes or heightened approvals, we have been very explicit and
> gone on at considerable length to describe them.
>
>
>
> Taking the parenthetical in the Proposal's "draft bylaw" language
> -- "(including Chartering Organizations’ approval)" -- and using
> that to manufacture a requirement for a heightened standard
> (affirmative approval vs. non-objection, or unanimous affirmative
> approval) tortures the language and is without any basis. We have
> been clear throughout that the exact language of the "draft bylaw"
> texts in the Proposal is not to be taken as is, and must be read
> along with the other guidance in the Proposal to determine what
> the "real" Draft Bylaw should say. This is made clear when the
> "draft bylaw" language is introduced in the Proposal, it is
> prefaced with the following: "Include a Bylaw with the
> following*intent* in Work Stream 1 recommendations". Read in
> conjunction wtih Para 168 and Annex 6 Paras 5 and 19, it is clear
> that the */intent/* of the CCWG was that there should be no
> special process for the FOI.
>
>
>
> Finally, this is not a Work Stream 2 question or an implementation
> question. This is a question of what the Draft Bylaw should say
> /now /and we need to resolve this now.
>
>
>
> The current Draft Bylaw language does NOT accurately reflect the
> intent of the CCWG. While I'm not wedded to my exact language
> suggestion, there needs to be a change made so that the intent of
> the CCWG is accurately reflected. Since Para 168 and Annex 6
> Paras 5 and 19 will not be in the Bylaws, something needs to be
> added to the language now proposed so that the point they clearly
> and repeatedly make is absolutely clear in the Bylaws.
>
>
>
> Greg
>
>
>
> Greg
>
>
>
> On Tue, Apr 26, 2016 at 10:18 AM, McAuley, David
> <dmcauley at verisign.com <mailto:dmcauley at verisign.com>> wrote:
>
> I agree with Greg’s thoughtful comments almost all the time, but
> not in this case.
>
>
>
> Greg’s point, as I understand it, is that we should not perpetuate
> language that led to confusion. A worthy goal – but IMO it is
> better taken up in developing the FoI in WS2. We have a proposal
> and it is done and has been accepted by the COs and it says what
> it says. We should not “fix” it now – we should ask whether the
> draft bylaws capture what the proposal says. With Holly’s tweak it
> is basically verbatim.
>
>
>
> And I can understand the sense in Niels’s comment that Greg’s
> change leaves no room for interpretation – my concern is that the
> proposal does leave such room and it is what we presented to the
> COs for approval. Dealing with interpretation is what
> implementation and WS2 are basically set up to do.
>
>
>
> Those are my thoughts on this point and I commend those on both
> sides for their insights and intent.
>
>
>
> David McAuley
>
>
>
> *From:*Greg Shatan [mailto:gregshatanipc at gmail.com
> <mailto:gregshatanipc at gmail.com>]
> *Sent:* Monday, April 25, 2016 7:09 PM
> *To:* Gregory, Holly
> *Cc:* McAuley, David; Dr. Tatiana Tropina;
> accountability-cross-community at icann.org
> <mailto:accountability-cross-community at icann.org>; Sidley ICANN
> CCWG; ICANN at adlercolvin.com <mailto:ICANN at adlercolvin.com>
>
>
> *Subject:* Re: [CCWG-ACCT] inconsistency in bylaws spotted
>
>
>
> 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/>
>
> Image removed by sender.
> http://www.sidley.com/files/upload/signatures/SA-autosig.png
> <http://www.sidley.com/> *SIDLEY AUSTIN LLP*
>
>
>
>
>
> ------------------------------------------------------------------------
> BrettSchaefer
> 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 <tel:202-608-6097>
> heritage.org <http://heritage.org/>
>
> *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
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