[CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)

[Greg Shatan]

All,

For added clarity, I propose the following change:

*Original Language in Revised Bylaws:*

the Corporation shall, except as limited by Article 54 hereof, pursue the
charitable and public purposes of lessening the burdens of government and
promoting the global public interest in the operational stability of the
Internet*,* as such global public interest may be determined from time to
time by the multistakeholder community through an inclusive bottom-up
multistakeholder community process*,* by carrying out the mission set forth
in the bylaws of the Corporation (“*Bylaws*”).

*Proposed Language:*

the Corporation shall, except as limited by Article 54 hereof, pursue the
charitable and public purposes of lessening the burdens of government and
promoting the global public interest in the operational stability of the
Internet by carrying out the mission set forth in the bylaws of the
Corporation (“*Bylaws*”). *Such global public interest may be determined
from time to time.  Any determination of such global public interest shall
be made by the multistakeholder community through an inclusive bottom-up
multistakeholder community process.*

​Basically, what I've done is to remove the long inserted phrase about
determining the GPI (between the two red commas in the original language
above) and then try to "unpack" that phrase into sentences.  Thrusting this
phrase in the middle of the sentence was clearly causing two comprehension
problems, even though the drafting was technically correct.  In addition to
the previously discussed comprehension problem around the word "may," the
mid-sentence insertion of the phrase obscured the connection between the
final words ("by carrying out the mission...") and the thought that it was
completing ("the Corporation shall ... pursue the charitable and public
purposes of [x] and [y]...").  Removing the inserted phrase makes the
primary narrative thrust of the sentence clear: "*the Corporation shall ...
pursue the charitable and public purposes of [x] and [y] by by carrying out
the mission set forth in the bylaws.*"

[Note: I'm using "x" and "y" instead of the actual language to make the
sentence shorter and easier to follow.]

Lawyers love long sentences (I've seen some go on for 20 lines or more),
and they love inserting explanatory or qualifying phrases in the middle of
the sentences, such as this phrase inserted solely to show how such phrases
are inserted, so that such sentences can run on.  Lawyers will also use the
word "such" in a somewhat futile effort to indicate that the word following
(in this case, "sentences") was already used in the sentence and is being
referred to again with the same meaning.  These drafting habits
unfortunately make following the main thread of a sentence increasingly
difficult. They also force awkward phrasing of the inserted clauses, since
these clauses have to be drafted as referential fragments, rather than
self-sufficient sentences.  Ultimately, readability and clarity of meaning
suffers.

I hope that my suggested change clarifies the main thread of the sentence,
and also clarifies the meaning of the inserted phrase.

Greg

On Wed, Jul 6, 2016 at 8:38 PM, Trang Nguyen <trang.nguyen at icann.org> wrote:

> All,
>
> The ICANN restated articles of incorporation is not on the critical path
> so we are able to accommodate an extension of the public comment period.
> The close of the public comment period has been extended to 13 July.
>
> Trang
>
> From: James Gannon <james at cyberinvasion.net>
> Date: Wednesday, July 6, 2016 at 2:24 PM
> To: Greg Shatan <gregshatanipc at gmail.com>
> Cc: "Gregory, Holly" <holly.gregory at sidley.com>, Thomas Rickert <
> thomas at rickert.net>, Mathieu Weill <mathieu.weill at afnic.fr>, "
> leonfelipe at sanchez.mx" <leonfelipe at sanchez.mx>, Accountability Cross
> Community <accountability-cross-community at icann.org>, Bernard Turcotte <
> turcotte.bernard at gmail.com>, Trang Nguyen <trang.nguyen at icann.org>, Yuko
> Green <yuko.green at icann.org>
>
> Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public
> Consultation on Articles of Incorporation (AOC)
>
> Hi All,
> In light of this and some other conversations I think that we need to take
> at least 24hours to review this comment and ensure that it is a consensus
> comment of the CCWG before we file it, Im not sure if a 24-48hr delay in
> the filing of the CCWG comment would have a major impact downstream in the
> timelines, I have cc’d Trang and Yuko who may be able to respond to that.
>
> I think that we may have let the AoI slip under our radar a little with
> all of the parallel work that is going on and we need to make sure that we
> get this comment correct first time and to do that we nee to do it with a
> full set of inputs and considerations by the CCWG members and I don’t feel
> we have this yet. I know that we are working to tight deadlines, but we
> need to make sure that we do this right.
>
> -JG
>
> From: Greg Shatan <gregshatanipc at gmail.com>
> Date: Wednesday 6 July 2016 at 21:45
> To: James Gannon <james at cyberinvasion.net>
> Cc: "Gregory, Holly" <holly.gregory at sidley.com>, Thomas Rickert <
> thomas at rickert.net>, Mathieu Weill <mathieu.weill at afnic.fr>, "
> leonfelipe at sanchez.mx" <leonfelipe at sanchez.mx>, Accountability Cross
> Community <accountability-cross-community at icann.org>, Bernard Turcotte <
> turcotte.bernard at gmail.com>
> Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public
> Consultation on Articles of Incorporation (AOC)
>
> It's unfortunate that we don't have time to run this by our counsel, as I
> would be interested in their views.  Here are mine.
>
> I would recommend against filing these comments.
>
> FIRST, I disagree with the second point raised.  Substituting "shall" for
> "may" would incorrectly imply that there is a *requirement* that a
> determination of the global public interest *must* take place.  We have
> not asked for such a requirement and we have not specified any such
> requirement, which would render this statement nebulous, ambiguous and
> undefined.  As currently drafted, *if* a determination of the global
> public interest takes place it will be done by the multistakeholder
> community using a bottom-up multistakeholder process, but there is
> (properly) no language *requiring* that such a determination be made.
>
> If anyone believes that Final Recommendation 1, para 51 *requires* the
> initiation of a process to determine the global public interest, that
> should either be a part of Work Stream 2 or a huge implementation item for
> Work Stream 1.  As far as I can see, it is neither -- which further proves
> that changing "may" to "shall" goes beyond the recommendations of the CCWG.
>
> SECOND, I also disagree with the third point raised. "Organized" is
> commonly used in Articles of Incorporation (indeed, in some states, such as
> Massachusetts, a non-profit corporation files Articles of Organization
> rather than Articles of Incorporation).  As our counsel pointed out on the
> last call, the California official form for Articles of Incorporation uses
> the term "organized." (See attached)  It is a best practice to stick
> closely to the official language provided by the jurisdiction -- here it is
> "organized."  This is demonstrated in model California Articles of
> Incorporation prepared by Public Counsel, a pro bono law firm, and
> available online (see attached or
> http://www.publiccounsel.org/publications?id=0059).  It would be far
> preferable if we were to accept the clarification that "organized" is
> what's used in this circumstance, rather than to recommend a change that is
> at best meaningless and at worst creates the potential for confusion (since
> one always looks for meaning in any change, and confusion could fill the
> void created by the meaninglessness of this change).  To paraphrase
> Shakespeare, I don't think the confusion is in the document, it is in
> ourselves (or at least in some of us) -- and it would be better for us to
> adjust our understanding of the document, rather than to adjust the
> document to suit our misunderstanding.
>
> Of course, the language of the CCWG comment is relatively undemanding --
> we only ask that "counsel" (whose counsel?  ICANN's?) or "the drafters"
> (why the difference?) review the language.  We do not justify our
> quasi-recommendations of changes, other than by saying that we are confused
> by the word "organized" and by demonstrating that we are confused about
> what is permissive and what is required.
>
> Frankly, I'm far from sure that this comment is widely supported, other
> than by apathy or lack of time.  I think it would be a mistake for either
> of these two recommendations (?) to be adopted, and I hope that counsel/the
> drafters, upon further review, let the original drafting stand.
>
> The only thing I agree with is the trivial change from "further" to
> "future," which at least does not make matters worse.  This is hardly worth
> a comment by itself.
>
> In sum, I reiterate that I would recommend against filing these comments.
>
> Best regards,
>
> Greg
>
> On Wed, Jul 6, 2016 at 3:49 PM, Greg Shatan <gregshatanipc at gmail.com>
> wrote:
>
>> I agree.  This is a legal document, and we should have the benefit of
>> counsel on this.
>>
>> Greg
>>
>> On Wed, Jul 6, 2016 at 3:36 PM, James Gannon <james at cyberinvasion.net>
>> wrote:
>>
>>> While not able to certify anything, if there are issues that our counsel
>>> see I think its important that they are raised.
>>>
>>> -James
>>>
>>> From: <accountability-cross-community-bounces at icann.org> on behalf of
>>> "Gregory, Holly" <holly.gregory at sidley.com>
>>> Date: Wednesday 6 July 2016 at 20:32
>>> To: Thomas Rickert <thomas at rickert.net>, Mathieu Weill <
>>> mathieu.weill at afnic.fr>, "leonfelipe at sanchez.mx" <leonfelipe at sanchez.mx>,
>>> Accountability Cross Community <accountability-cross-community at icann.org>,
>>> Bernard Turcotte <turcotte.bernard at gmail.com>
>>> Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public
>>> Consultation on Articles of Incorporation (AOC)
>>>
>>> Dear Co-Chairs and CCWG-Accountability Members and Participants,  Please
>>> let us know if you want Sidley and/or Adler to comment on this before you
>>> post it.  We will not do so unless instructed to.  Holly
>>>
>>>
>>>
>>> *HOLLY J. GREGORY*
>>> Partner and Co-Chair, Global Corporate Governance & Executive
>>> Compensation Practice
>>>
>>>
>>> *SIDLEY AUSTIN LLP *+1 212 839 5853
>>> holly.gregory at sidley.com
>>>
>>>
>>>
>>> *From:* accountability-cross-community-bounces at icann.org [
>>> mailto:accountability-cross-community-bounces at icann.org
>>> <accountability-cross-community-bounces at icann.org>] *On Behalf Of *Bernard
>>> Turcotte
>>> *Sent:* Wednesday, July 06, 2016 3:27 PM
>>> *To:* Accountability Cross Community
>>> *Subject:* [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public
>>> Consultation on Articles of Incorporation (AOC)
>>>
>>>
>>>
>>> All,
>>>
>>>
>>>
>>> Please find attached the draft comment to the ICANN public consultation
>>> on the Articles of Incorporation from the leadership.
>>>
>>>
>>>
>>> These comments are based on the questions raised during the CCWG meeting
>>> on the AOC and in consideration of Sam Eisner's response to those questions.
>>>
>>>
>>>
>>> Please respond to the list ASAP if you have comments as this public
>>> consultation closes in a few hours.
>>>
>>>
>>>
>>> Bernard Turcotte
>>>
>>> ICANN Staff Support for the CCWG Co-Chairs.
>>>
>>>
>>>
>>>
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>>
>
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