[CCWG-ACCT] Timing and incorporation of Lawyers input

Thu Jan 14 13:18:51 UTC 2016

Dear Farzaneh, Dear Colleagues,

Indeed during the call with lawyers there was a mention of comments / memos 
that were not sent to the full group. We have researched (and will provide 
Holly and Rosemary the opportunity to confirm or not) whatever memos would 
not have been passed on in collaboration with the lawyers.

Two memos were found in this research and you will find them below and 
attached, along with some context.

1)       A memo received on Dec 24 regarding Draft AoC Bylaw provisions

This memo was following a request to advance Bylaw drafting. It was not 
forwarded because we started a discussion on the relevance and timing of 
that Bylaw drafting exercice in light of the comments received. Then it fell 
into end of year break oblivion. This is going to be a useful input to our 
discussion on Recommendation #9 next week.

2)      A memo bringing our attention to a specific point of the Board’s 
comment to our 3rd draft report regarding Director independence.

Since this was not a certified request a discussion was engaged between co 
chairs suggesting we share it with the whole group. But we never closed this 
discussion. Our mistake.

We will now ask staff to add this to the list of legal memos.

Regarding the way lawyers will provide input in the current phase of review 
of our 3rd draft, as was discussed during the call with them last week they 
will provide the CCWG, for each recommendation, with :

-          High level comments if need be after 1st reading

-          Detailed edits after 2nd reading.

-          Specific memos when requested (such as the Human rights memo we 
have received in the last few hours)

I hope this helps clarify.

Thank you for your constructive feedback and your focus on facts. This is 
very helpful to the full group.

Thomas, Leon & Mathieu

Co chairs

De : farzaneh badii [mailto:farzaneh.badii at gmail.com]
Envoyé : mercredi 13 janvier 2016 20:58
À : Mathieu Weill
Cc : Accountability Cross Community
Objet : Re: [CCWG-ACCT] Timing and incorporation of Lawyers input

Dear Mathieu,

In your call with the lawyers, Holly said the memo she wanted to send to 
CCWG was not sent. Can you please clarify which memo was not sent and send 
it as soon as possible.

My call for transparent communication gets ignored all the time. Could you 
please clarify how will the lawyers share their feedback  and editorial 
comments? Will it be privately sent to you then you will send them privately 
to staff?

I hope this time I get an answer to my request.  It could just be a no with 
specifying reasons.

Best

Farzaneh

Dear Colleagues,

Last week, the co chairs and lawyers held a call to coordinate the 
collection and incorporation of lawyers input into our report. As was 
mentioned on this list, during finalization of the 3rd draft report, some 
comments from our lawyers could not be taken into account and we wanted to 
remedy this issue going forward.

We have agreed that lawyers will provide feedback, through the co chairs, on 
the various recommendations in two steps :

-          After first reading, lawyers will share high level feedbacks or 
concerns so they can be discussed as part of the 2nd reading meeting ;

-          After second reading, lawyers will provide detailed edits when 
appropriate. These edits will be incorporated unless they create a 
substantial change. In this case, new discussion on the list would take 
place.

With this process, our group can draw upon the vary valuable skills and 
experience from our lawyers all through our discussions.

This memo can be considered as certifying request for review for the 
lawyers.

Best regards,

Thomas, Leon and Mathieu

De : accountability-cross-community-bounces at icann.org 
[mailto:accountability-cross-community-bounces at icann.org] De la part de 
Brenda Brewer
Envoyé : lundi 11 janvier 2016 20:37
À : CCWG-Accountability
Objet : [CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT 
Co-Chairs and Lawyers Meeting (8 January)

Hello all,

The notes, recordings and transcripts for CCWG ACCT Co-Chairs and Lawyers (8 
January) will be available here:   https://community.icann.org/x/15dlAw

A copy of the notes may be found below.

Thank you.

Kind regards,

Brenda

Notes

These high-level notes are designed to help you navigate through content of 
the call and do not substitute in any way the transcript.

 HJGregory - reasoning for call - at this critical time in the project want 
to discuss if the team could be more useful to the process. Concerns 
regarding the edition of documents since their comments are not being 
included. Also need greater clarity about which of our comments get posted. 
Uncomfortable with the certification requirements but this should not apply 
to the drafting of documents. We would also expect to understand what is 
expected for implementation so we can reserve the resources accordingly. 
Finally need guidance on Marrakech given participation by phone would not be 
practical.

 MWeill - Thank you for your directness. Looking at your questions. On 
integrating comments - the timeframe did not allow us to work with smaller 
comments. The co-chairs initially focused on any major comments.

 TRickert - we are going through different phases. Making too many changes 
in any version of the document would cause concern to the community. Going 
into details too much can distract people from focusing on the major issues. 
So a balance must found between what legal and staff can do.

 HJGregory - we understand you concerns but wanted to ensure that our 
concerns were clear. This being said we would recommend posting our comments 
to the entire group and that the group is our client. Often we are not 
involved on an issue does not mean we have opined in any fashion. There may 
be a misconception on the level of comments from the lawyers wrt the 3rd 
draft.

 MWeill - we are editing the 3rd version currently - we have to consider 
your input more up front. But we have to find a way to make this efficient 
for everyone. Given we are working on recommendation by recommendation we 
could ask for legal comments on a per recommendation which has had a first 
reading.

 HJGregory - this sounds like a good idea, but the answer to dealing with 
lawyer comments is not to ignore them.

 TRickert - We agree with you but we have been working to incredibly tight 
schedules.

 RMFrei - we need to understand why our comments are taken or not.

 TRickert - Understand but the new interactive approach should handle this 
issue. Documents that go out after the first reading will include all the 
lawyer comments. We should also document which comments are accepted or not.

 HJGregory - this sounds acceptable.

 MWeill - next implementation

 HJGregory - support using the details to implementation. At some point the 
implementation cannot be made by the full CCWG. Also understand the cost 
implications for ICANN. As such implementation should not be with done with 
the full group.

 MWeill - was not the strategy of oversight groups for implementation not 
ok.

 HJGregory - concern that using the same group of people for oversight and 
uncertain they can get above trying to line edit vs checking for 
consistency.

 MWeill - Understand that this is a challenge and there is no way around it. 
This is in part because of community experience with other implementation 
exercises having generated unexpected results.

 HJGregory - Would encourage the co-chairs to help the oversight 
participants that the process is going to be different - it will not be 
interactive drafting - lawyers will draft the documents and the oversight 
will group can comment on if it matches the guidelines. We will get there. 
Implementation needs to be a different process.

TRicket - Implementation is about ensuring that the group's wishes and the 
work product. But understand we have to streamline to make it efficient.

HJGregory - Marrakesh - we have real concerns that we can be effective via 
the telephone. Understands it depends on what the requirements are given 
where we are.

MWeill - currently expecting ICANN55 to scope WS2 and would not expect 
lawyers would be required for this. There would also implementation work on 
WS1. So we do not expect the draft Bylaws will be ready for ICANN 55.

HJGregory - one approach could be for us to book refundable airline tickets 
and as time progresses we can decide if we are needed. As such we should 
make reservations which can be cancelled.

MWeill - the IRP skill set would be needed in Marrakesh - but we would 
expect that the total number of lawyers on the ground would be less than 
previously.

RMFei - I will probably sit this one out if the focus will be IRP. So I will 
wait to figure this out.

HJGregory - what could we be doing to help you more.? please let us know.

TRickert - thanks for the offer we will need to think about it some more. 
Things are moving quite a bit, commenting ad hoc on every suggestion that is 
circulated. After the first reading we publish this to the list and lawyer 
comments would be best there.

HJGregory - agree with this.

HJGregory - maybe the first step should be to reach out to Jones Day to 
understand their risk analysis of this.

RMFrei - also not everything is black and white - there are some judgement 
call.

TR and MW - in case lawyers have concerns about provisions that currently 
exist in the Bylaws, and may not be within the CCWG remit, they should 
discuss with JD first.

RMFrei - on current process for reviewing changes to recs.?

HJGregory - we should review materials from scratch?

TRickert - the lawyers would share their high level comments on each 
recommendation / agenda item after 1st reading, then provide detailed 
feedback after 2nd reading .  best to get your input after the first reading 
where you can insert your comments. Acceptable?

HJGregory - yes.

TRickert - certification of human rights question. The reason it makes sense 
to certify this because ICANN believes it is opening significant risk. Need 
to understand vs current risks.

HJGregory - need to understand what you mean by human rights.

HJGregory - this is it for us.

Conclusion of the call.

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