[CCWG-ACCT] Timing and incorporation of Lawyers input

Barrack Otieno otieno.barrack at gmail.com
Wed Jan 13 06:40:09 UTC 2016


+1 Avri.

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On 1/12/16, Avri Doria <avri at acm.org> wrote:
> 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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>
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-- 
Barrack O. Otieno
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