[CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11

[Kavouss Arasteh]

Dear Sir,
Yes , if and only if the Board,s decision is INCONSISTENT with  or  in violation of Bylaws?!!!!
Regards
Kavouss 

Sent from my iPhone

> On 25 Jan 2016, at 15:48, Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com> wrote:
> 
> Dear Kavouss
> 
> No IRP will review GAC advice.  But the community did agree (overwhelmingly)
> that IRP review would apply to Board decisions in response to GAC advice,
> which is, of course, exactly what Malcolm posits ...
> 
> Paul
> 
> Paul Rosenzweig
> paul.rosenzweig at redbranchconsulting.com 
> O: +1 (202) 547-0660
> M: +1 (202) 329-9650
> VOIP: +1 (202) 738-1739
> Skype: paul.rosenzweig1066
> Link to my PGP Key
> 
> 
> 
> -----Original Message-----
> From: Kavouss Arasteh [mailto:kavouss.arasteh at gmail.com] 
> Sent: Monday, January 25, 2016 9:45 AM
> To: Malcolm Hutty <malcolm at linx.net>
> Cc: Greg Shatan <gregshatanipc at gmail.com>; Paul Rosenzweig
> <paul.rosenzweig at redbranchconsulting.com>; ICANN <ICANN at adlercolvin.com>;
> Thomas Rickert <thomas at rickert.net>;
> accountability-cross-community at icann.org; acct-staff at icann.org; Sidley ICANN
> CCWG <sidleyicannccwg at sidley.com>; Greeley, Amy E. <AGreeley at sidley.com>;
> Grapsas, Rebecca <rebecca.grapsas at sidley.com>
> Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11
> 
> Dear All,
> Perhaps people totally forgotten that NO IRP SHALL BE INVOKED BY THE
> COMMUNITY. 
> FOR GAC ADVICE.
> This has been discussed  and confirmed .pls refer ti WP 2 and CCWG previous
> NOTES and REPORTS Regards Kavouss
> 
> Sent from my iPhone
> 
>> On 25 Jan 2016, at 10:57, Malcolm Hutty <malcolm at linx.net> wrote:
>> 
>> 
>> 
>>> On 24/01/2016 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.
>> 
>> I also agree that this would be a substantial change.
>> 
>> To support that, I would ask you to consider the follow, not unlikely, 
>> scenario.
>> 
>> The GAC has advised the Board to do something, but what it has advised 
>> is not entirely clearly, and there is certainly ambiguity as to how it 
>> might be implemented. The Board has then done something. A materially 
>> affected party, unhappy with the Board's action and preferring an 
>> alternative that would take a more extreme view of the GAC advice, 
>> challenges the action in the IRP. The Board takes the view that it has 
>> taken the GAC's advice into account and that what it has done is 
>> reasonably consistent with the GAC advice; the complainant argues that 
>> the action was not consistent with it.
>> 
>> If the IRP finds that factually the complainant is correct to allege 
>> that the Board's action was not consisistent with the GAC advice, what 
>> is the consequence of that? It seems to vary according to which 
>> standard we choose:
>> 
>> - If the current standard applies, that the Board "duly take into 
>> account" GAC advice, the IRP may still find that the Board did do that:
>> since they noted the GAC's advice, considered it, and believed (albeit
>> incorrectly) that what they were doing constituted a reasonably 
>> implementation of it, it is hard to say they did not meet this standard.
>> The IRP will however order the Board that to bring itself back into 
>> compliance with the bylaws it must notify the GAC that it has acted 
>> inconsistently, and try to find a mutually acceptable solution. The 
>> action, however, may stand: a solution need not necessarily involve 
>> cancelling the action, but might be found through supplementing the 
>> action with another.
>> 
>> - If Holly's standard applies, that the Board "must not act 
>> inconsistently" with GAC advice, then the mere finding that the Board 
>> has acted inconsistently invalidates that decision. The action must be 
>> quashed, if it is possible to do so; failure to do so would consistute 
>> perpetuating the bylaws breach.
>> 
>> This is a material change, that may significantly affect the outcome.
>> 
>> Personally, I do not believe this change is needed or desirable. For 
>> that reason, I respectfully disagree with accepting Holly's advice on 
>> this particular case.
>> 
>> Kind Regards,
>> 
>> Malcolm.
>> 
>> -- 
>>           Malcolm Hutty | tel: +44 20 7645 3523
>>  Head of Public Affairs | Read the LINX Public Affairs blog London 
>> Internet Exchange | http://publicaffairs.linx.net/
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>> 
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