[CCWG-ACCT] inconsistency in bylaws spotted

Mon Apr 25 20:31:55 UTC 2016

Oh lawyers can be so interesting ;-), since the text "..*including
Chartering **Organizations’** approval"* is still reflected then I am fine
with the rewording suggested.

Regards

Sent from my LG G4
Kindly excuse brevity and typos
On 25 Apr 2016 8:49 p.m., "Gregory, Holly" <holly.gregory at sidley.com> wrote:

> Dear CCWG-Accountability,
>
> We have been following this email stream and in re-reading the language of
> the Bylaws we understand how the language could be misread to call for a
> standard higher than what is intended.  Therefore we propose that a
> clarification would be helpful.  Specifically, to remove any confusion and
> help assure that the Bylaws are read in a manner that is consistent with
> the proposal, we recommend the following clarifying change to Section 27.3:
>
>
>
> “(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) the CCWG-Accountability as a consensus
> recommendation in Work Stream 2 * (including Chartering Organizations’
> approval), and * (ii) each of the CCWG-Accountability’s chartering
> organizations and (iii) the Board (in the case of the Board, using the
> same process and criteria used by the Board to consider the Work Stream 1
> Recommendations).”
>
>
>
> If you agree, we recommend that you include this in the CCWG’s public
> comment.
>
>
>
> Kind regards,
>
> Holly
>
>
>
> *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
> holly.gregory at sidley.com
> www.sidley.com
>
> [image: http://www.sidley.com/files/upload/signatures/SA-autosig.png]
> <http://www.sidley.com/> *SIDLEY AUSTIN LLP*
>
>
>
>
>
> *From:* accountability-cross-community-bounces at icann.org [mailto:
> accountability-cross-community-bounces at icann.org] *On Behalf Of *McAuley,
> David
> *Sent:* Monday, April 25, 2016 2:12 PM
> *To:* Dr. Tatiana Tropina; accountability-cross-community at icann.org
> *Subject:* Re: [CCWG-ACCT] inconsistency in bylaws spotted
>
>
>
> In my personal opinion, I think Tatiana was correct in observing that
> there can be different interpretations in this respect.
>
>
>
> I respectfully don’t think we can now say that decision making regarding
> the FoI in WS2 is simply based on the charter. The charter set WS1 in
> motion and in WS1 we specifically agreed that the HR bylaw will not enter
> into force until, among other things, an FoI is developed as a consensus
> WS2 recommendation “(including Chartering Organizations’ approval)” – we
> cannot delete that quoted bylaw language as it means something.
>
>
>
> Here is what the draft bylaw-language in the proposal provides:
>
>
>
> “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. This Bylaw provision will not enter into force until (1) a
> Framework of Interpretation for Human Rights (FOI-HR) is developed by the
> CCWG-Accountability as a consensus recommendation in Work Stream 2
> (including Chartering Organizations’ approval) and (2) the FOI-HR is
> approved by the ICANN Board using the same process and criteria it has
> committed to use to consider the Work Stream 1 recommendations.”
>
>
>
> If that requires further clarity it seems to me that it will need to be
> developed in WS2 given that our charge now is to see if the bylaws draft
> tracks the final proposal.  In this respect it appears to do so.
>
>
>
> David McAuley
>
>
>
> *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 *Dr.
> Tatiana Tropina
> *Sent:* Sunday, April 24, 2016 4:42 PM
> *To:* accountability-cross-community at icann.org
> *Subject:* Re: [CCWG-ACCT] inconsistency in bylaws spotted
>
>
>
> Hi all,
> I certainly understand that there can be different interpretations of the
> intent of the report.
>
> The item (ii) of the bylaw in the report says: "*consensus recommendation
> in Work Stream 2 *(including Chartering Organizations’ approval)".
>
> We have even have different thresholds for consensus in the report itself,
> which one is applicable here? What is the process for reaching this
> consensus? The same as for WS1? Then we might need a reference to WS1 may
> be? Furthermore: will everything developed in the WS2 require a full
> consensus and approval of all COs? I read the chapter in the bylaws about
> WS2 and it refers to the process and charter of WS1. No requirement for
> full consensus or approval of the all the COs there. Why does not HR bylaw
> refer to the previous section in the bylaw that specifically outlines the
> requirements for Ws, but introduces the approval of all COs instead? I
> don't mind this, but the clarification seems to be necessary.
>
> Is there already a definition of consensus for the purpose of the WS2 and
> if yes, is it the same that has been introduced for HR FOI in HR bylaw
> text?  This is my question.
>
> If the answer is "yes" - then there is no inconsistency. However, I agree
> with Niels that this should be clarified, so we all will be on the same
> page.
>
> Cheers
> Tanya
>
> On 24/04/16 20:44, Seun Ojedeji wrote:
>
> Hi,
>
> Are you saying that the bylaw text is different from the intent of the
> report as I don't think that is the case. The report indeed required
> approval of the CO which was rightly reflected as item ii in the bylaw text.
>
> I therefore think the bylaw text is consistent with the intent of the
> report.
>
> Regards
>
> Sent from my LG G4
> Kindly excuse brevity and typos
>
> On 24 Apr 2016 7:01 p.m., "Niels ten Oever" <lists at nielstenoever.net>
> wrote:
>
>
> Dear all,
>
> I hope this email finds you well. Upon re-reading the bylaw text I came
> across the following issue which does not seem to be in accordance with
> what we agreed in WS1.
>
> The CCWG report says where it comes to Human Rights:
>
> [ccwg report]
>
>  “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. This Bylaw
>  provision will not enter into force until (1) a Framework of
> Interpretation for Human
>  Rights (FOI-HR) is developed by the CCWG-Accountability as a consensus
>  recommendation in Work Stream 2 (including Chartering Organizations’
> approval)
>  and (2) the FOI-HR is approved by the ICANN Board using the same
> process and
>
> criteria it has committed to use to consider the Work Stream 1
> recommendations.”
>
> [/ccwg report]
>
> But when I look at the bylaw text it says:
>
> [proposed bylaw]
>
> 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) the CCWG-Accountability as a consensus
> recommendation in Work Stream 2, (ii) each of the CCWG-Accountability’s
> chartering organizations and (iii) the Board (in the case of the Board,
> using the same process and criteria used by the Board to consider the
> Work Stream 1 Recommendations).
>
> [/proposed bylaw]
>
> Now it is explicitly required that all Chartering Organizations approve
> the Framework of Interpretation, whereas during WS1 it was agreed that
> for WS2 we would use exactly the same process of approval as for WS1.
>
> What makes this even more divergent is that this clause is only added
> for Human Rights in the proposed bylaws and not for any other bylaw.
> Whereas there was no exceptional procedure for human rights discussed
> for WS2.
>
> What I propose is to refer to the charter of the CCWG on Accountability
> for the decision making of all processes in WS2 (including the decision
> making on the FoI on Human Rights) and not create separate or new
> requirements or processes.
>
> All the best,
>
> Niels
>
>
>
> --
> Niels ten Oever
> Head of Digital
>
> Article 19
> www.article19.org
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