[CCWG-ACCT] Timing and incorporation of Lawyers input

Mathieu Weill mathieu.weill at afnic.fr
Tue Jan 12 15:01:41 UTC 2016

Dear Colleagues,

Last week, the co chairs and lawyers held a call to coordinate the
collection and incorporation of lawyers input into our report. As was
mentioned on this list, during finalization of the 3rd draft report, some
comments from our lawyers could not be taken into account and we wanted to
remedy this issue going forward.

We have agreed that lawyers will provide feedback, through the co chairs,
on the various recommendations in two steps :

-          After first reading, lawyers will share high level feedbacks or
concerns so they can be discussed as part of the 2nd reading meeting ;

-          After second reading, lawyers will provide detailed edits when
appropriate. These edits will be incorporated unless they create a
substantial change. In this case, new discussion on the list would take

With this process, our group can draw upon the vary valuable skills and
experience from our lawyers all through our discussions.

This memo can be considered as certifying request for review for the

Best regards,

Thomas, Leon and Mathieu

De : accountability-cross-community-bounces at icann.org
[mailto:accountability-cross-community-bounces at icann.org] De la part de
Brenda Brewer
Envoyé : lundi 11 janvier 2016 20:37
À : CCWG-Accountability
Objet : [CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT
Co-Chairs and Lawyers Meeting (8 January)

Hello all,

The notes, recordings and transcripts for CCWG ACCT Co-Chairs and Lawyers
(8 January) will be available here:   https://community.icann.org/x/15dlAw

A copy of the notes may be found below.

Thank you.

Kind regards,



These high-level notes are designed to help you navigate through content
of the call and do not substitute in any way the transcript.

 HJGregory - reasoning for call - at this critical time in the project
want to discuss if the team could be more useful to the process. Concerns
regarding the edition of documents since their comments are not being
included. Also need greater clarity about which of our comments get
posted. Uncomfortable with the certification requirements but this should
not apply to the drafting of documents. We would also expect to understand
what is expected for implementation so we can reserve the resources
accordingly. Finally need guidance on Marrakech given participation by
phone would not be practical.

 MWeill - Thank you for your directness. Looking at your questions. On
integrating comments - the timeframe did not allow us to work with smaller
comments. The co-chairs initially focused on any major comments.

 TRickert - we are going through different phases. Making too many changes
in any version of the document would cause concern to the community. Going
into details too much can distract people from focusing on the major
issues. So a balance must found between what legal and staff can do.

 HJGregory - we understand you concerns but wanted to ensure that our
concerns were clear. This being said we would recommend posting our
comments to the entire group and that the group is our client. Often we
are not involved on an issue does not mean we have opined in any fashion.
There may be a misconception on the level of comments from the lawyers wrt
the 3rd draft.

 MWeill - we are editing the 3rd version currently - we have to consider
your input more up front. But we have to find a way to make this efficient
for everyone. Given we are working on recommendation by recommendation we
could ask for legal comments on a per recommendation which has had a first

 HJGregory - this sounds like a good idea, but the answer to dealing with
lawyer comments is not to ignore them.

 TRickert - We agree with you but we have been working to incredibly tight

 RMFrei - we need to understand why our comments are taken or not.

 TRickert - Understand but the new interactive approach should handle this
issue. Documents that go out after the first reading will include all the
lawyer comments. We should also document which comments are accepted or

 HJGregory - this sounds acceptable.

 MWeill - next implementation

 HJGregory - support using the details to implementation. At some point
the implementation cannot be made by the full CCWG. Also understand the
cost implications for ICANN. As such implementation should not be with
done with the full group.

 MWeill - was not the strategy of oversight groups for implementation not

 HJGregory - concern that using the same group of people for oversight and
uncertain they can get above trying to line edit vs checking for

 MWeill - Understand that this is a challenge and there is no way around
it. This is in part because of community experience with other
implementation exercises having generated unexpected results.

 HJGregory - Would encourage the co-chairs to help the oversight
participants that the process is going to be different - it will not be
interactive drafting - lawyers will draft the documents and the oversight
will group can comment on if it matches the guidelines. We will get there.
Implementation needs to be a different process.

TRicket - Implementation is about ensuring that the group's wishes and the
work product. But understand we have to streamline to make it efficient.

HJGregory - Marrakesh - we have real concerns that we can be effective via
the telephone. Understands it depends on what the requirements are given
where we are.

MWeill - currently expecting ICANN55 to scope WS2 and would not expect
lawyers would be required for this. There would also implementation work
on WS1. So we do not expect the draft Bylaws will be ready for ICANN 55.

HJGregory - one approach could be for us to book refundable airline
tickets and as time progresses we can decide if we are needed. As such we
should make reservations which can be cancelled.

MWeill - the IRP skill set would be needed in Marrakesh - but we would
expect that the total number of lawyers on the ground would be less than

RMFei - I will probably sit this one out if the focus will be IRP. So I
will wait to figure this out.

HJGregory - what could we be doing to help you more.? please let us know.

TRickert - thanks for the offer we will need to think about it some more.
Things are moving quite a bit, commenting ad hoc on every suggestion that
is circulated. After the first reading we publish this to the list and
lawyer comments would be best there.

HJGregory - agree with this.

HJGregory - maybe the first step should be to reach out to Jones Day to
understand their risk analysis of this.

RMFrei - also not everything is black and white - there are some judgement

TR and MW - in case lawyers have concerns about provisions that currently
exist in the Bylaws, and may not be within the CCWG remit, they should
discuss with JD first.

RMFrei - on current process for reviewing changes to recs.?

HJGregory - we should review materials from scratch?

TRickert - the lawyers would share their high level comments on each
recommendation / agenda item after 1st reading, then provide detailed
feedback after 2nd reading .  best to get your input after the first
reading where you can insert your comments. Acceptable?

HJGregory - yes.

TRickert - certification of human rights question. The reason it makes
sense to certify this because ICANN believes it is opening significant
risk. Need to understand vs current risks.

HJGregory - need to understand what you mean by human rights.

HJGregory - this is it for us.

Conclusion of the call.

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