[CCWG-ACCT] inconsistency in bylaws spotted
James Gannon
james at cyberinvasion.net
Tue Apr 26 10:36:07 UTC 2016
I support Gregs language (Multistkehoderism in action here folks)
On 26/04/2016, 11:28, "accountability-cross-community-bounces at icann.org on behalf of Jorge.Cancio at bakom.admin.ch" <accountability-cross-community-bounces at icann.org on behalf of Jorge.Cancio at bakom.admin.ch> wrote:
>Sounds good!
>Jorge
>
>-----Ursprüngliche Nachricht-----
>Von: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] Im Auftrag von Matthew Shears
>Gesendet: Dienstag, 26. April 2016 12:24
>An: Niels ten Oever <lists at nielstenoever.net>; accountability-cross-community at icann.org
>Betreff: Re: [CCWG-ACCT] inconsistency in bylaws spotted
>
>Agreed +1 to Greg's formulation.
>
>On 4/26/2016 9:11 AM, Niels ten Oever wrote:
>> 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
>>> www.article19.org
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>--
>
>Matthew Shears | Director, Global Internet Policy & Human Rights Project Center for Democracy & Technology | cdt.org
>E: mshears at cdt.org | T: +44.771.247.2987
>
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