[CCWG-ACCT] Regarding bylaws drafting

[Greg Shatan]

My comments below.

Greg

On Wed, Jun 24, 2015 at 10:36 PM, Bruce Tonkin <
Bruce.Tonkin at melbourneit.com.au> wrote:

> Hello All,
>
> Just following up on my comments during the CCWG session this afternoon on
> the drafting process.
>
> I recommend considering the following approach:
>
> - Identify a sub-team of the CCWG to write a short brief for each bylaws
> change required - including any draft text that has been developed so far
>

​GSS: Agree that we should have a brief/specifications/terms of
reference/term sheet that the CCWG supports, and that the drafting should
be done (and to a fair extent has already been done) by a smaller group,
since drafting in a group of 40 would be painful and inefficient.​


>
> - Get the CCWG external council to confirm that the brief is achievable
> and is consistent with their earlier advice
>

​GSS: Agree that we should have counsel review what we prepare.​


>
> - Get the ICANN legal team to draft bylaws changes consistent with the
> brief
>

​GSS:  Neither agree nor disagree. Whichever legal team prepares the first
draft, the other legal team will do what is necessary to deal with issues
they note in that draft. Twas ever thus. There may be a modest cost savings
if ICANN inside counsel prepares the first draft, but reviewing the first
draft will still be a reasonable amount of work for CCWG's counsel.​


>
> -  the CCWG sub-team confirms that the language meets the brief
>

​GSS:  Here is where I most decidedly disagree.  We are preparing legal
instruments here, with language that needs to be prepared to a particular
standard and with a particular style and vocabulary.  If ICANN legal
prepares the first draft, it will need to go back to CCWG counsel to be
reviewed and revised prior to or at the same time as the CCWG itself
reviews the draft.  I expect ICANN would do the same if we operate in the
other direction.  In any event, first drafts are rarely, if ever, the final
draft; there is always some improvement necessary, even if the parties have
agreed completely on their intentions (which is also not that common).
It's just the nature of the activity.  Of course, the further apart the
parties are on substance, the more "rounds" of drafts it takes to come to
rest.  But, in any event we can expect at least a couple of rounds of
drafts before ICANN and the CCWG are satisfied with the result.  And we
clearly need our counsel to take a leading role from their point of view in
"doing the necessary" to make sure the by-law drafts meet the needs and
expectations of the CCWG.  (Brief soapbox moment: There is as much skill,
knowledge and experience involved in the art of legal drafting as there is
in any other sophisticated professional activity.  The fact that it does
not involve manual or numerical dexterity seems to make people think that
laymen are more likely to do a credible job of legal drafting, than they
would performing ​surgery or plotting the trajectory of a rocket.  DIY
legal drafting is a rotten idea, with its own costs and consequences,
though admittedly not physical death or destruction -- at least not
immediately.)

>
> - where necessary (e.g. if the CCWG sub team does not believe that the
> draft meets the requirements)  get the CCWG external council to confirm
> that the draft is consistent with the objectives of the brief  (use this
> last step when necessary as we are using public funds to pay for the extra
> advice and we should be prudent with expenditure)
>

​GSS:  I would not characterize this as "extra advice" -- it is critical,
core and necessary advice​.  The bylaws are one of the points of legal
execution; it would be highly imprudent to shy away from using counsel at
this point, of all points.  And the job of outside counsel is not merely to
confirm the draft is consistent with the objectives of the brief; it's
their job to help us get it right from the CCWG's point of view.  As for
the use of "public funds" -- perhaps this is a semantic difference, but I
think of "public funds" as those appropriated and expended by governments,
and we heard numerous times in BA that ICANN is not a government.
Semantics aside, all involved are using the same funds, by whatever name,
and I hope that ICANN legal, if it takes the first draft, will keep that in
mind as they draft so that they come as close as possible to the brief of
the CCWG, so that the CCWG's counsel does not have too revise too much when
it undertakes its review.  "Public funds" aside, what is most important is
that we are operating in the "public eye" and keenly aware of the "public
trust" that has been placed on the CCWG just as much as it has been placed
on ICANN-the-corporation.  This is an inflection point in ICANN's history
-- not getting it right will have much greater costs -- financial,
reputational, governance-wise, etc. -- than a few hours of careful legal
review and revision process of the legal tools (i.e., the bylaws) that we
are using to achieve a great deal of the objectives that we will have spent
thousands and thousands of unpaid and paid hours, a good deal of money, and
a great deal of blood, sweat and tears to accomplish.  This is not the time
to become gun-shy about getting appropriate legal advice -- there is far
too much riding on this part of the process to do so.

Consistent with the above, we have every responsibility to work in a
cost-effective and efficient manner with counsel and to demand the same
from them.  Perversely, it's my experience that trying to cut corners with
counsel tends to end up costing more and taking more time and/or achieving
a less desirable result than staying the course with counsel.

>
> - once the CCWG sub team is happy with the text - it should be reviewed by
> the whole CCWG, before posting for public comment
>

​GSS:  I think it goes without saying that the CCWG will need to review and
support everything that is going to be posted for public comment, including
without limitation the bylaws.  That said, there's no harm in saying it. ​


>
>
> For example, you could write a short brief on the changes required to
> incorporate the AoC reviews.   This could include simply  a cut and paste
> of the relevant AoC text - along  with any tweeks agreed within the CCWG -
> maybe changing the proposed timing of reviews, or perhaps the membership of
> the review team etc.
>
> - ICANN legal can then draft language  for the bylaws that is consistent
> across the whole bylaws document
>

​GSS: I expect that consistency across the bylaws -- both proposed and
existing -- will be an element of drafting and review at every step along
the way.  That said, I'm sure that when the individual pieces all come to
rest, there will be an overall review by ICANN legal and CCWG counsel
focused on consistency so that both ICANN legal and the CCWG are satisfied
that any inconsistencies or unintended consequences have been dealt with.
After all, we are all equally invested in getting it right.

>
>
>
>
> Regards,
> Bruce Tonkin
>
>
> ​Best regards,

Greg​


>
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