[CCWG-ACCT] Timing and incorporation of Lawyers input

Tue Jan 12 16:04:30 UTC 2016

Hi,

I praise the effort to make sure that the legal advice is heeded and
makes it into the final draft.  It was hard to learn that some such
information was not being accepted by staff.  Makes our process harder
to defend.

I do hope, however, that these comments will be passed on to the group
by the chairs and not just become another part of the need-to-know set
of information that they keep confidential.

avri

On 12-Jan-16 10:01, Mathieu Weill wrote:
>
> 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 3^rd 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 place.
>
>  
>
> 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
> lawyers.
>
>  
>
> 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,
>
> Brenda
>
>  
>
> *Notes*
>
> 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 reading.
>
>  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 schedules.
>
>  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 not.
>
>  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 ok.
>
>  HJGregory - concern that using the same group of people for oversight
> and uncertain they can get above trying to line edit vs checking for
> consistency.
>
>  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 previously.
>
> 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 call.
>
> 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 1^st  reading, then provide
> detailed feedback after 2^nd  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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