[CCWG-ACCT] Fwd: [bylaws-coord] DRAFT NEW ICANN BYLAWS - 2 April 2016 version

Tue Apr 5 03:14:39 UTC 2016

I’d like to add an additional question to the 34 circulated by our attorneys on Sunday.

I believe the bylaws draft implies that the Human Rights Framework of Interpretation (FOI-HR) should be a basis for IRP challenges on ICANN action or inaction.   I do not believe that is what the CCWG final proposal reflected in Annex 6<https://community.icann.org/pages/viewpage.action?pageId=58723827&preview=/58723827/58726370/Annex%2006%20-%20FINAL-Revised.pdf>, where we proposed this specific bylaws language (para 07):

“Within its Core Values, ICANN will commit to respect internationally recognized Human Rights as required by applicable law. This provision does not create any additional obligation for ICANN to respond to or consider any complaint, request, or demand seeking the enforcement of Human Rights by ICANN.”

The new draft bylaws that we are now reviewing has a different implication, at 27.3.(c):

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 with respect to this Section 27.3 for any actions by ICANN or the Board occurring prior to the date that the conditions set forth in Section 27.3(b) are satisfied
This bylaws draft text implies that the IRP and reconsideration can be used to challenge ICANN actions/inactions based on FOI-HR after it is developed.     I can see why the legal team may have assumed something like this, because our final report Annex 6 para 19 explanatory text says:

The proposed draft Bylaw also clarifies that no IRP challenges can be made on the grounds of this Bylaw until an FOI-HR is developed and approved as part of Work Stream 2 activities. It further clarifies that acceptance of the FOI-HR will require the same process as for Work Stream 1 recommendations (as agreed for all Work Stream 2 recommendations).

But I believe that CCWG made its position clear in our suggested bylaws text, repeated here for convenience:

“Within its Core Values, ICANN will commit to respect internationally recognized Human Rights as required by applicable law. This provision does not create any additional obligation for ICANN to respond to or consider any complaint, request, or demand seeking the enforcement of Human Rights by ICANN. “

From: <accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org>> on behalf of Mathieu Weill <mathieu.weill at afnic.fr<mailto:mathieu.weill at afnic.fr>>
Date: Sunday, April 3, 2016 at 8:16 AM
To: CCWG Accountability <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Subject: [CCWG-ACCT] Fwd: [bylaws-coord] DRAFT NEW ICANN BYLAWS - 2 April 2016 version

Dear colleagues,

In anticipation of our calls this week, please find below a note from the lawyers group, the draft bylaws as well as an issue list.

It is important to read the lawyers notes as they quite efficiently describe the context and status of the work. Please review them for any process related question.

The purpose of our calls this week will be to address the issue list questions (questions 1-7 & 25-34 are for the CCWG, the others for CWG).

Should any other issue be added to the list based on your respective reviews, please raise your questions on the list for transparency.
Expéditeur: John Jeffrey via bylaws-coord <bylaws-coord at icann.org<mailto:bylaws-coord at icann.org>>
Date: 3 avril 2016 13:16:28 UTC+2
Destinataire: bylaws-coord at icann.org<mailto:bylaws-coord at icann.org>
Dear Bylaws Coordination Group,
Please find attached a document – DRAFT NEW ICANN BYLAWS (vers. 2Apr) (“DRAFT BYLAWS”) for your review and discussion. As you will recall the last full draft was provided to you on 18 March, with the promise to provide another full turn of the DRAFT BYLAWS for your review today on 2 April.  The DRAFT BYLAWS attached is the current working draft among the legal drafting group.  There is also an Issue List attached, which are a set of additional questions and clarifications requested from the Bylaws Coordination Group.
 We ask that you share the attachments with your CCWG, ICG and CWG colleagues who will be reviewing this during this critical work week
Recent Work – During the past two weeks the legal drafting group, made up of Sidley’s team, Adler’s team and ICANN's Legal team reviewed and worked through mark ups and redrafts of the various sections of new ICANN Bylaws.  Also, we have held four separate meetings with the Bylaws Coordination Group during this two-week period asking questions and incorporating that feedback into the new draft.  There is likely to be the need for some additional discussions as we work toward a public comment version of the new ICANN bylaws.
More Work to Do – There is still work to do on the DRAFT BYLAWS, in identifying and working through any remaining provisions in the draft that are not clear, finding any remaining open issues, improving the provisions, and polishing the draft before publication for public comment.  The legal teams remain engaged in review mode and are available for questions and comments during this period.
Legal Teams have not yet “certified” – Since a) the Bylaws Coordination Group, CWG and CCWG have not yet reviewed and reacted to these DRAFT BYLAWS, b) there are still remaining open issues, and c) there is still review and polishing to be done by the legal teams – the legal teams have not indicated yet that the current DRAFT BYLAWS fully meets the recommendations within the Proposals.
As we have indicated above there is still work to be done, including receiving the feedback from those reviewing these DRAFT BYLAWS this week before the legal teams will be in a position to certify the posting version for Public Comment
Next Steps –
1)   Now until 13 April – members of CCWG, CWG, Bylaws Coordination Group, Board and ICG to complete review of these DRAFT BYLAWS and provide feedback to legal teams;
2)   Now until 18 April, (with particular focus during week of 13-18 April) – legal teams to update DRAFT BYLAWS working in coordination with the Bylaws Drafting Group;
3)   20 April – posting date for public comment period for new proposed bylaws – with legal teams supporting that the new proposed bylaws meets the proposal recommendations.
———
As before, we look forward to working with all of you in the coming days, to get ICANN’s Bylaws in the best form possible to effectuate these important changes.
We hope these views of the documents are useful and that you receive them in the spirit that they are offered… to help all of us to be able to collaborate and work through these Bylaws changes in the most effective way possible — to enable the creation of a new and stronger, community empowered ICANN.
John Jeffrey, Holly Gregory, and Rosemary Fei
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