[CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11
Nigel Roberts
nigel at channelisles.net
Mon Jan 25 01:10:17 UTC 2016
Paul is right to be concerned.
'duly taken in to account' means 'followed'.
On 24/01/16 21:32, Greg Shatan wrote:
> Paul,
>
> I was halfway through writing an email that said exactly that.
>
> This may be due to the lawyers re-interpreting "duly taken into account"
> in a way that I don't agree with and which I think is incorrect. We
> have used the term many times in discussing how we deal with public
> comments, and I have taken our meaning to be "we will consider it and
> give it our full attention, but without any presumption that we will
> adopt it." The additional language suggested by the lawyers as a
> "clarification" would actually be a substantial change, along the lines
> that you highlight. I would also note that this phrase has been in the
> Bylaws for many year without any ambiguity noted until now.
>
> Whatever the genesis of this problem, we need to reverse this creeping
> presumption.
>
>
> Greg
>
> On Sun, Jan 24, 2016 at 4:09 PM, Paul Rosenzweig
> <paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>> wrote:
>
> Is anyone else concerned about the commentary to Annex 11. As I
> read our lawyer’s advice, we are now in the position of putting into
> place a presumption that the Board will not act inconsistent with
> GAC advice – which to me is more binding that making sure that the
> advice is duly taken into account. The latter implies that it may
> be taken account of and then diverged from, while the former
> suggests not. I am not questioning the lawyer’s conclusions.
> Rather I am suggesting that we have, mistakenly, created a situation
> where government influence is definitely increased. I cannot
> support that. More to the point I do not see how the NTIA will
> approve it ….____
>
> __ __
>
> Paul____
>
> __ __
>
> Paul Rosenzweig____
>
> paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweigesq at redbranchconsulting.com> ____
>
> O: +1 (202) 547-0660 <tel:%2B1%20%28202%29%20547-0660>____
>
> M: +1 (202) 329-9650 <tel:%2B1%20%28202%29%20329-9650>____
>
> VOIP: +1 (202) 738-1739 <tel:%2B1%20%28202%29%20738-1739>____
>
> Skype: paul.rosenzweig1066____
>
> Link to my PGP Key
> <http://www.redbranchconsulting.com/index.php?option=com_content&view=article&id=19&Itemid=9>____
>
> <http://www.rsaconference.com/events/us16?utm_source=signature&utm_medium=email&utm_campaign=speakers-us2016>____
>
> __ __
>
> *From:*Gregory, Holly [mailto:holly.gregory at sidley.com
> <mailto:holly.gregory at sidley.com>]
> *Sent:* Sunday, January 24, 2016 7:24 AM
> *To:* 'Mathieu Weill' <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>>; 'León Felipe Sánchez Ambía'
> <leonfelipe at sanchez.mx <mailto:leonfelipe at sanchez.mx>>;
> 'accountability-cross-community at icann.org
> <mailto:accountability-cross-community at icann.org>'
> <accountability-cross-community at icann.org
> <mailto:accountability-cross-community at icann.org>>;
> 'acct-staff at icann.org <mailto:acct-staff at icann.org>'
> <acct-staff at icann.org <mailto:acct-staff at icann.org>>
> *Cc:* Sidley ICANN CCWG <sidleyicannccwg at sidley.com
> <mailto:sidleyicannccwg at sidley.com>>; Greeley, Amy E.
> <AGreeley at sidley.com <mailto:AGreeley at sidley.com>>; Grapsas, Rebecca
> <rebecca.grapsas at sidley.com <mailto:rebecca.grapsas at sidley.com>>;
> 'ICANN at adlercolvin.com <mailto:ICANN at adlercolvin.com>'
> <ICANN at adlercolvin.com <mailto:ICANN at adlercolvin.com>>
> *Subject:* [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9,
> 10, 11____
>
> __ __
>
> __ __
>
> __ __
>
> Dear CCWG ACCT Co-Chairs, Members, Participants and ICANN Staff, ____
>
> __ __
>
> We are writing to raise with you the following issues that we
> identified in our high-level review of the above- referenced
> Annexes:____
>
> __ __
>
> *_Annex 1 (GAC as Decisional Participant)_*: We did not have any
> high-level comments on this Annex.____
>
> *______*
>
> *_Annex 8 (Reconsideration)_*: With respect to the timing
> requirements discussed in Paragraph 25 and elsewhere in the Annex,
> there appears to be some inconsistency: If the Board Governance
> Committee (BGC) takes its full 90 days to make a recommendation
> after receiving the request, the Board would not meet its 60 day
> timeline, and it would be tight for it to meet the 120 day time line
> (particularly if the requestor files a rebuttal to the BGC’s
> recommendation within 15 days of receipt). /We recommend that these
> time frames be re-considered to remove the inconsistency, for
> example by deleting the language relating to Board action within 60
> days and, if necessary, providing the Board with additional time to
> consider the BGC recommendations/.____
>
> __ __
>
> *_Annex 9 (AOC Reviews)_*: /We recommend that consideration be given
> to further clarifying the Review Team provision in Paragraph 54 (1)
> to specify the type of “diversity” desired (geographic or otherwise)
> for Review Team members and (2) to state whether, in determining the
> composition of the members of the Review Teams they select, the
> group of chairs can solicit additional nominees or appoint less than
> 21 members to avoid potential overrepresentation of particular ACs
> or SOs if some nominate less than 3 members./ ____
>
> __ __
>
> *_Annex 10 (SO/AC Accountability)_*: We did not have any high-level
> comments on this Annex. ____
>
> *______*
>
> *_Annex 11 (GAC Advice)_*: ____
>
> __ __
>
> We were asked to review the current Bylaws provision addressing GAC
> advice and determine whether the ambiguities we identified in our
> review of the proposed revisions to this provision are new or stem
> from ambiguities under the current Bylaws text. We have determined
> that there are ambiguities under the current Bylaws text, which
> provides as follows:____
>
> *ICANN Bylaws Article XI, Section 2.1.j.*The advice of the
> Governmental Advisory Committee on public policy matters shall be
> /duly taken into account/, both in the formulation and adoption of
> policies. In the event that the ICANN Board determines to take an
> action that is not consistent with the Governmental Advisory
> Committee advice, it shall so inform the Committee and state the
> reasons why it decided not to follow that advice. The Governmental
> Advisory Committee and the ICANN Board will then try, in good faith
> and in a timely and efficient manner, to find a mutually acceptable
> solution.____
>
> __ __
>
> The phrase “duly taken into account” is ambiguous, but reading it
> together with the next sentence, which requires that the Board
> follow a specific procedure before taking actions inconsistent with
> GAC advice, we believe the best interpretation of this phrase is to
> mean “do not act inconsistently with.” Based on this
> interpretation, /we recommend the following clarification
> (underlined) to the first sentence of this Bylaws provision: “The
> advice of the Gov//ernmental Advisory Committee on public policy
> matters shall be duly taken into account, both in the formulation
> and adoption of policies_, and**ICANN shall not act inconsistently
> with that advice except as otherwise provided in this paragraph_/.” ____
>
> __ __
>
> We also note that there is no meaningful legal distinction between
> voting and determining to take an action, as some commenters have
> suggested. The only way the Board can legally determine or decide
> anything under California law is by voting. ____
>
> __ __
>
> The proposed addition to the current Bylaws text is underlined
> below:____
>
> __ __
>
> *ICANN Bylaws Article XI, Section 2.1.j.*The advice of the
> Governmental Advisory Committee on public policy matters shall be
> duly taken into account, both in the formulation and adoption of
> policies. In the event that the ICANN Board determines to take an
> action that is not consistent with the Governmental Advisory
> Committee advice, it shall so inform the Committee and state the
> reasons why it decided not to follow that advice. _Any Governmental
> Advisory Committee advice approved by a full Governmental Advisory
> Committee consensus, understood to mean the practice of adopting
> decisions by general agreement in the absence of any formal
> objection, may only be rejected by a vote of 2/3 of the Board,
> and_ the Governmental Advisory Committee and the ICANN Board will
> then try, in good faith and in a timely and efficient manner, to
> find a mutually acceptable solution.____
>
> __ __
>
> Based on our interpretation of the current Bylaws text, described
> above, we believe this proposed provision results in the following
> process:____
>
> __1.__If GAC provides advice (whether by a full GAC consensus or a
> lesser approval threshold), the ICANN Board must “duly take[] into
> account” that advice -- i.e., ICANN must not act inconsistently with
> that advice, unless #2 and/or #3 below apply. ____
>
> __2.__If GAC provides advice (whether by a full GAC consensus or a
> lesser approval threshold), and the ICANN Board decides to take an
> action inconsistent with that advice, the ICANN Board must first
> give GAC notice and provide a rationale. ____
>
> __·__In addition, f the GAC advice was by a full GAC consensus, the
> ICANN Board may decide to take an action inconsistent with that
> advice only by a vote of 2/3 of the ICANN Board. If that 2/3
> threshold is reached, GAC and ICANN must then try in good faith to
> find a mutually acceptable solution. If the 2/3 threshold is not
> reached, ICANN is required to act consistently with the consensus
> GAC advice. ____
>
> /We recommend that consideration be given to further clarifying this
> process, and we agree with commenters who have concluded that the
> proposed provision does not impose an affirmative obligation upon
> ICANN’s Board to vote on GAC consensus advice every time that advice
> is provided/. ____
>
> We note that additional Bylaws language is being proposed to clarify
> that, in any case, the Board needs to act in compliance with the
> ICANN Bylaws. Thus, if the Board were to determine that following
> GAC advice would result in non-compliance with the Bylaws, the Board
> should be able to reject the advice (with a majority or two-thirds
> vote, depending on whether the GAC advice was consensus advice) and
> explain its position to GAC. ____
>
> Please let us know if we can assist in any way with your further
> consideration of these issues.____
>
> __ __
>
> Kind regards,____
>
> Holly and Rosemary____
>
> __ __
>
> *HOLLY**J. GREGORY*
> Partner and Co-Chair
> Global Corporate Governance & Executive Compensation Practice
>
> *Sidley Austin LLP**
> *+1 212 839 5853 <tel:%2B1%20212%20839%205853>
> holly.gregory at sidley.com <mailto:holly.gregory at sidley.com>____
>
> Image removed by sender.
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> <http://www.sidley.com/>*SIDLEY AUSTIN LLP*____
>
> ____
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