[CCWG-ACCT] Regarding bylaws drafting
Mathieu Weill
mathieu.weill at afnic.fr
Tue Jun 30 06:07:45 UTC 2015
Dear Greg,
Please note that a slightly amended version has been circulated for
consideration during this CCWG call.
Best
Mathieu
Le 30/06/2015 07:45, Greg Shatan a écrit :
> My comments below.
>
> Greg
>
> On Wed, Jun 24, 2015 at 10:36 PM, Bruce Tonkin
> <Bruce.Tonkin at melbourneit.com.au
> <mailto: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
>
>
> -
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> <mailto:Accountability-Cross-Community at icann.org>
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
>
>
>
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
--
*****************************
Mathieu WEILL
AFNIC - directeur général
Tél: +33 1 39 30 83 06
mathieu.weill at afnic.fr
Twitter : @mathieuweill
*****************************
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20150630/3232af12/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: Bylaw drafting process -.pdf
Type: application/pdf
Size: 121358 bytes
Desc: not available
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20150630/3232af12/Bylawdraftingprocess-.pdf>
More information about the Accountability-Cross-Community
mailing list