[CCWG-ACCT] Fwd: Human Rights Transition Provision: Bylaws Section 27.3(a)
Niels ten Oever
lists at nielstenoever.net
Mon May 2 08:35:54 UTC 2016
Hi all,
Response to Greg inline (TL;DR - disagree with Seun and agree with Seth
and Greg for removal of 'unless or'):
On 05/02/2016 04:10 AM, Greg Shatan wrote:
> I support the changes proposed by counsel, and I believe they make this
> section consistent with the intent of the CCWG Proposal.
>
> You're entitled to your opinion, Seun, but stating it as if it were a
> fact doesn't make it a fact -- it's still your opinion that "what we
> have done is NOT in-line with the interpretation of what was written in
> the report." I disagree with your opinion.
>
> In my opinion, what we had before was "NOT in-line with the
> interpretation of what was written in the report," and I've provided the
> basis for that in prior emails. What we have now -- suggested by
> counsel -- brings the Draft Bylaws in line with the CCWG Proposal.
>
> I don't think what we had in the report was a "mistake" (and I don't
> think anyone actually said that even though you seem to think
> otherwise); rather what we had was an ambiguous phrase in the so-called
> "draft bylaw" in the Proposal (which was never meant to be used verbatim
> in the actual Bylaws), which was then clarified by repeated statements
> that the review of the FoI in WS2 would proceed the same way as the
> review and approval of the Proposal in WS1. The only "mistake" was what
> was in the Draft Bylaw circulated by comment, and that has now been
> corrected by the language proposed by counsel.
>
+1
> Speaking to the other comments in this thread:
>
> The review by the Chartering Organizations is covered by the clause
> "using the same process and criteria as for Work Stream 1
> Recommendations." We don't need to spell that process out here.
>
> "Unless and until" is a conjunctive clause commonly used in legal
> drafting. Like many of these "legal twins," it is a set phrase that
> often tends to be used without a second thought as to the slightly
> different meanings of the two words. Its use can tend to be reflexive
> by those who draft a lot of bylaws, contracts or similar legal
> documents. There's something comfortable about seeing these types of
> phrases. That said, in this instance, we would probably be fine with
> "until."
>
+1
Best,
Niels
> Greg
>
>
>
> On Sun, May 1, 2016 at 6:38 PM, Seth Johnson <seth.p.johnson at gmail.com
> <mailto:seth.p.johnson at gmail.com>> wrote:
>
> Any reason why the Core Value is not in force "unless" (and until)
> the FoI is done, when the CCWG Report only says "until"? The FoI's
> presence in the By-laws is not conditional. That is, it's not as if
> it's only in force *if* we work it out -- it *has* to be worked
> out! :-)
>
> If you make it conditional, the process could be forced to choose
> between a weak compromise or no FoI at all, which is really not a
> choice or compromise. We don't want to set it up that that kind of
> brinksmanship is where the process ends up running aground. The
> process should be one where we know we have to address the nature
> and role of the HR commitment and discuss it in terms of the
> *substance* of the issue, and reach compromises only on that basis
> -- and not run up against choices between unappealing compromises or
> nothing.
>
> I asked this before, and it may be that there is a rationale, or
> perhaps this language somehow does not put us in this position.
>
> I'd think that simply deleting the words "unless and" would be the
> best thing.
>
>
>
> Seth
>
> On Sun, May 1, 2016 at 4:42 PM, Mathieu Weill
> <mathieu.weill at afnic.fr <mailto:mathieu.weill at afnic.fr>> wrote:
>
> Dear colleagues,
>
> Please find below for your consideration some suggestions from
> our lawyers for clarification of the bylaw language regarding
> the Human rights FoI. This follows our request during the
> previous call.
>
> Best,
>
> Mathieu Weill
> ---------------
> Depuis mon mobile, désolé pour le style
>
> Début du message transféré :
>
>> *Expéditeur:* "Gregory, Holly" <holly.gregory at sidley.com
>> <mailto:holly.gregory at sidley.com>>
>> *Date:* 1 mai 2016 19:10:53 UTC+2
>> *Destinataire:* "'Mathieu Weill'" <mathieu.weill at afnic.fr
>> <mailto:mathieu.weill at afnic.fr>>, "'Thomas Rickert'"
>> <thomas at rickert.net <mailto:thomas at rickert.net>>, León Felipe
>> Sánchez Ambía <leonfelipe at sanchez.mx
>> <mailto:leonfelipe at sanchez.mx>>, "bylaws-coord at icann.org
>> <mailto:bylaws-coord at icann.org>" <bylaws-coord at icann.org
>> <mailto:bylaws-coord at icann.org>>
>> *Cc:* ACCT-Staff <acct-staff at icann.org
>> <mailto:acct-staff at icann.org>>, "Rosemary E. Fei"
>> <rfei at adlercolvin.com <mailto:rfei at adlercolvin.com>>,
>> "ICANN at adlercolvin.com <mailto:ICANN at adlercolvin.com>"
>> <ICANN at adlercolvin.com <mailto:ICANN at adlercolvin.com>>, Sidley
>> ICANN CCWG <sidleyicannccwg at sidley.com
>> <mailto:sidleyicannccwg at sidley.com>>,
>> "Samantha.Eisner at icann.org <mailto:Samantha.Eisner at icann.org>"
>> <Samantha.Eisner at icann.org <mailto:Samantha.Eisner at icann.org>>
>> *Objet:* *Human Rights Transition Provision: Bylaws Section
>> 27.3(a)*
>>
>> Dear Co-Chairs and Bylaws Coordinating Group:
>>
>> On the CCWG call last week, there was a discussion of the
>> Bylaws language regarding the transition provision on Human
>> Rights*//*[27.3(a)] and it was suggested that the language be
>> clarified to ensure that the same approval process used for
>> Work Stream 1 would apply. We propose the following
>> clarifying edits. We suggest that you share this with the
>> CCWG and if there is agreement, the following proposed edit
>> should be included in the CCWG’s public comment:____
>>
>> Redline:____
>>
>> *Section 27.3. HUMAN RIGHTS____*
>>
>> __ __
>>
>> (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) approved for submission to the Board by the
>> CCWG-Accountability as a consensus recommendation in Work
>> Stream 2, and (ii) approved by each of the
>> CCWG-Accountability’s chartering organizations and (iii) the
>> Board, (in each thecase of the Board, using the same process
>> and criteria used by the Boardto consider the as for Work
>> Stream 1 Recommendations).____
>>
>> __ __
>>
>> (b) No person or entity shall be entitled to invoke the
>> reconsideration process provided in Section 4.2, or the
>> independent review process provided in Section 4.3, based
>> solely on the inclusion of the Core Value set forth in Section
>> 1.2(b)(viii) (i) until after the FOI-HR contemplated by
>> Section 27.3(a) is in place or (ii) for actions of ICANN or
>> the Board that occurred prior to the____
>>
>> effectiveness of the FOI-HR.____
>>
>> Clean:____
>>
>> *Section 27.3. HUMAN RIGHTS____*
>>
>> __ __
>>
>> (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 (i) approved
>> for submission to the Board by the CCWG-Accountability as a
>> consensus recommendation in Work Stream 2 and (ii) approved by
>> the Board, in each case, using the same process and criteria
>> as for Work Stream 1 Recommendations.____
>>
>> __ __
>>
>> (b) No person or entity shall be entitled to invoke the
>> reconsideration process provided in Section 4.2, or the
>> independent review process provided in Section 4.3, based
>> solely on the inclusion of the Core Value set forth in Section
>> 1.2(b)(viii) (i) until after the FOI-HR contemplated by
>> Section 27.3(a) is in place or (ii) for actions of ICANN or
>> the Board that occurred prior to the____
>>
>> effectiveness of the FOI-HR.____
>>
>> Kind regards, ____
>>
>> __ __
>>
>> Holly and Rosemary____
>>
>> __ __
>>
>> __ __
>>
>> *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/>____
>>
>> http://www.sidley.com/files/upload/signatures/SA-autosig.png
>> <http://www.sidley.com/> *SIDLEY AUSTIN LLP*____
>>
>> __ __
>>
>>
>>
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Niels ten Oever
Head of Digital
Article 19
www.article19.org
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