[CCWG-ACCT] inconsistency in bylaws spotted

Niels ten Oever lists at nielstenoever.net
Tue Apr 26 08:11:16 UTC 2016


Dear all,

Thank you for your great reactions. The proposal by Holly is much better
than what we had in the proposed bylaws, but I have to completely agree
with Gregs worries and proposal underneath, since it leaves no room for
interpretation which will benefit our work in Workstream 2.

So +1 to Greg.

All the best,

Niels



On 04/26/2016 01:08 AM, Greg Shatan wrote:
> Holly and All,
> 
> I'm concerned that by reverting to the language in the Proposal, we are
> perpetuating the language that led to confusion in the first place. It
> should be clear that this is a "business as usual" process of Chartering
> Organization review of a CCWG-Accountability consensus recommendations,
> just as was done with the Proposal.  i would suggest adding the
> following clarifying language:
> 
> “(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 *as set forth in the CCWG-Accountability
> Charter*), 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).”
> 
> I look forward to your thoughts.
> 
> Greg
> 
> On Mon, Apr 25, 2016 at 3:48 PM, Gregory, Holly
> <holly.gregory at sidley.com <mailto: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 <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*____
> 
>      ____
> 
>     __ __
> 
>     *From:*accountability-cross-community-bounces at icann.org
>     <mailto:accountability-cross-community-bounces at icann.org>
>     [mailto: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
>     <mailto: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>
>     [mailto: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
>     <mailto: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 <mailto: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
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-- 
Niels ten Oever
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