[CCWG-ACCT] inconsistency in bylaws spotted

Tue Apr 26 17:20:00 UTC 2016

All:

My revision is NOT inconsistent with the Supplemental Final Proposal and
does NOT "change the report."

The Proposal states, no less than 3 times, 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)":*

In Para. 168; Annex 6, Para. 5; and Annex 6, Para. 19, the following
language is repeated verbatim*:* The proposed draft Bylaw also clarifies
that no IRP challenges can be made on the grounds of this Bylaw until a
Framework of Interpretation on Human Rights (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).

This clearly shows the group's intent regarding the drafting of a Bylaw,
which is that *NO* special process or heightened level of approval was
intended for the FOI.  Where we have had special processes or heightened
approvals, we have been very explicit and gone on at considerable length to
describe them.

Taking the parenthetical in the Proposal's "draft bylaw" language --
"(including Chartering Organizations’ approval)" -- and using that to
manufacture a requirement for a heightened standard (affirmative approval
vs. non-objection, or unanimous affirmative approval) tortures the language
and is without any basis.  We have been clear throughout that the exact
language of the "draft bylaw" texts in the Proposal is not to be taken as
is, and must be read along with the other guidance in the Proposal to
determine what the "real" Draft Bylaw should say.  This is made clear when
the "draft bylaw" language is introduced  in the Proposal, it is prefaced
with the following: "Include a Bylaw with the following* intent* in Work
Stream 1 recommendations".  Read in conjunction wtih Para 168 and Annex 6
Paras 5 and 19, it is clear that the *intent* of the CCWG was that there
should be no special process for the FOI.

Finally, this is not a Work Stream 2 question or an implementation
question.  This is a question of what the Draft Bylaw should say *now *and
we need to resolve this now.

The current Draft Bylaw language does NOT accurately reflect the intent of
the CCWG.  While I'm not wedded to my exact language suggestion, there
needs to be a change made so that the intent of the CCWG is accurately
reflected.  Since Para 168 and Annex 6 Paras 5 and 19 will not be in the
Bylaws, something needs to be added to the language now proposed so that
the point they clearly and repeatedly make is absolutely clear in the
Bylaws.

Greg

Greg

On Tue, Apr 26, 2016 at 10:18 AM, McAuley, David <dmcauley at verisign.com>
wrote:

> I agree with Greg’s thoughtful comments almost all the time, but not in
> this case.
>
>
>
> Greg’s point, as I understand it, is that we should not perpetuate
> language that led to confusion. A worthy goal – but IMO it is better taken
> up in developing the FoI in WS2. We have a proposal and it is done and has
> been accepted by the COs and it says what it says. We should not “fix” it
> now – we should ask whether the draft bylaws capture what the proposal
> says. With Holly’s tweak it is basically verbatim.
>
>
>
> And I can understand the sense in Niels’s comment that Greg’s change
> leaves no room for interpretation – my concern is that the proposal does
> leave such room and it is what we presented to the COs for approval.
> Dealing with interpretation is what implementation and WS2 are basically
> set up to do.
>
>
>
> Those are my thoughts on this point and I commend those on both sides for
> their insights and intent.
>
>
>
> David McAuley
>
>
>
> *From:* Greg Shatan [mailto:gregshatanipc at gmail.com]
> *Sent:* Monday, April 25, 2016 7:09 PM
> *To:* Gregory, Holly
> *Cc:* McAuley, David; Dr. Tatiana Tropina;
> accountability-cross-community at icann.org; Sidley ICANN CCWG;
> ICANN at adlercolvin.com
>
> *Subject:* Re: [CCWG-ACCT] inconsistency in bylaws spotted
>
>
>
> 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>
> 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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