[CCWG-ACCT] inconsistency in bylaws spotted

Tue Apr 26 20:26:54 UTC 2016

I think part of the problem is it is difficult to 100% correlate the WS1 process used to the documented charter.
For instance Chartering Organization “approval” isn’t even mentioned in the charter. The section is “SO and AC support” and the requirement was “decide whether to adopt the recommendations ”, but the in practice we reported  “approvals or non-objections”.

That said, an alternative text could be the following to remove the word “approval” and any confusion over whether its implying unanimous or not:
““(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 (including Chartering Organizations) recommendation in Work Stream 2 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).””

From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Schaefer, Brett
Sent: Tuesday, April 26, 2016 2:11 PM
To: Greg Shatan <gregshatanipc at gmail.com>
Cc: Sidley ICANN CCWG <sidleyicannccwg at sidley.com>; accountability-cross-community at icann.org; ICANN at adlercolvin.com
Subject: Re: [CCWG-ACCT] inconsistency in bylaws spotted

On your first point, I disagree. Currently, the text as suggested/amended by Holly states, “the CCWG-Accountability as a consensus recommendation in Work Stream 2 (including Chartering Organizations’ approval).” If it did not indicate that approval of all Chartering Organizations was required, I don’t think you would be asking for the clarification.

As Andrew argued, this review is supposed to be whether the bylaws are inconsistent with the text of the transition proposal, not whether it is internally consistent. However, we have already been selective in strictly adhering to the text of the transition proposal (see my argument on the treatment of EC approval for Board removal of directors versus GAC participation in the removal of NOMCOM directors). So I guess it is more of a guideline than a principle.

From: Greg Shatan [mailto:gregshatanipc at gmail.com]
Sent: Tuesday, April 26, 2016 1:59 PM
To: Schaefer, Brett
Cc: McAuley, David; Sidley ICANN CCWG; ICANN at adlercolvin.com<mailto:ICANN at adlercolvin.com>; accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>
Subject: Re: [CCWG-ACCT] inconsistency in bylaws spotted

The stated premise of your earlier question is incorrect.  The existing text does not state that approval of all the Chartering Organizations is required.

The answer to the question itself is yes, which is consistent with the Charter of the CCWG, consistent with the Proposal and consistent with the actions of the CCWG in forwarding the WS1 Proposal to the Board.

Greg

On Tue, Apr 26, 2016 at 1:48 PM, Schaefer, Brett <Brett.Schaefer at heritage.org<mailto:Brett.Schaefer at heritage.org>> wrote:
So the answer to my earlier question is “yes”.

The existing text states that approval of all the Chartering Organizations is required. So the purpose of this addition is to clarify that the Chairs may forward a proposal to the Board even if all of the Chartering Organizations do not approve it?

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 Greg Shatan
Sent: Tuesday, April 26, 2016 1:20 PM
To: McAuley, David
Cc: Sidley ICANN CCWG; ICANN at adlercolvin.com<mailto:ICANN at adlercolvin.com>; accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>
Subject: Re: [CCWG-ACCT] inconsistency in bylaws spotted

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<mailto: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<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<mailto:accountability-cross-community at icann.org>; Sidley ICANN CCWG; ICANN at adlercolvin.com<mailto: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<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>
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[Image removed by sender. http://www.sidley.com/files/upload/signatures/SA-autosig.png]<http://www.sidley.com/> SIDLEY AUSTIN LLP

________________________________
Brett Schaefer
Jay Kingham Senior Research Fellow in International Regulatory Affairs
Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy
The Heritage Foundation
214 Massachusetts Avenue, NE
Washington, DC 20002
202-608-6097<tel:202-608-6097>
heritage.org<http://heritage.org/>
________________________________
Brett Schaefer
Jay Kingham Senior Research Fellow in International Regulatory Affairs
Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy
The Heritage Foundation
214 Massachusetts Avenue, NE
Washington, DC 20002
202-608-6097
heritage.org<http://heritage.org/>
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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