[CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11
Greg Shatan
gregshatanipc at gmail.com
Mon Jan 25 01:22:19 UTC 2016
"duly taken into account" absolutely does not mean "followed."
On Sun, Jan 24, 2016 at 8:10 PM, Nigel Roberts <nigel at channelisles.net>
wrote:
> Paul is right to be concerned.
>
> 'duly taken in to account' means 'followed'.
>
>
>
> On 24/01/16 21:32, Greg Shatan wrote:
>
>> Paul,
>>
>> I was halfway through writing an email that said exactly that.
>>
>> This may be due to the lawyers re-interpreting "duly taken into account"
>> in a way that I don't agree with and which I think is incorrect. We
>> have used the term many times in discussing how we deal with public
>> comments, and I have taken our meaning to be "we will consider it and
>> give it our full attention, but without any presumption that we will
>> adopt it." The additional language suggested by the lawyers as a
>> "clarification" would actually be a substantial change, along the lines
>> that you highlight. I would also note that this phrase has been in the
>> Bylaws for many year without any ambiguity noted until now.
>>
>> Whatever the genesis of this problem, we need to reverse this creeping
>> presumption.
>>
>>
>> Greg
>>
>> On Sun, Jan 24, 2016 at 4:09 PM, Paul Rosenzweig
>> <paul.rosenzweig at redbranchconsulting.com
>> <mailto:paul.rosenzweig at redbranchconsulting.com>> wrote:
>>
>> Is anyone else concerned about the commentary to Annex 11. As I
>> read our lawyer’s advice, we are now in the position of putting into
>> place a presumption that the Board will not act inconsistent with
>> GAC advice – which to me is more binding that making sure that the
>> advice is duly taken into account. The latter implies that it may
>> be taken account of and then diverged from, while the former
>> suggests not. I am not questioning the lawyer’s conclusions.
>> Rather I am suggesting that we have, mistakenly, created a situation
>> where government influence is definitely increased. I cannot
>> support that. More to the point I do not see how the NTIA will
>> approve it ….____
>>
>> __ __
>>
>> Paul____
>>
>> __ __
>>
>> Paul Rosenzweig____
>>
>> paul.rosenzweig at redbranchconsulting.com
>> <mailto:paul.rosenzweigesq at redbranchconsulting.com> ____
>>
>> O: +1 (202) 547-0660 <tel:%2B1%20%28202%29%20547-0660>____
>>
>> M: +1 (202) 329-9650 <tel:%2B1%20%28202%29%20329-9650>____
>>
>> VOIP: +1 (202) 738-1739 <tel:%2B1%20%28202%29%20738-1739>____
>>
>> Skype: paul.rosenzweig1066____
>>
>> Link to my PGP Key
>> <
>> http://www.redbranchconsulting.com/index.php?option=com_content&view=article&id=19&Itemid=9
>> >____
>>
>> <
>> http://www.rsaconference.com/events/us16?utm_source=signature&utm_medium=email&utm_campaign=speakers-us2016
>> >____
>>
>> __ __
>>
>> *From:*Gregory, Holly [mailto:holly.gregory at sidley.com
>> <mailto:holly.gregory at sidley.com>]
>> *Sent:* Sunday, January 24, 2016 7:24 AM
>> *To:* 'Mathieu Weill' <mathieu.weill at afnic.fr
>> <mailto:mathieu.weill at afnic.fr>>; 'thomas at rickert.net
>> <mailto:thomas at rickert.net>' <thomas at rickert.net
>> <mailto:thomas at rickert.net>>; 'León Felipe Sánchez Ambía'
>> <leonfelipe at sanchez.mx <mailto:leonfelipe at sanchez.mx>>;
>> 'accountability-cross-community at icann.org
>> <mailto:accountability-cross-community at icann.org>'
>> <accountability-cross-community at icann.org
>> <mailto:accountability-cross-community at icann.org>>;
>> 'acct-staff at icann.org <mailto:acct-staff at icann.org>'
>> <acct-staff at icann.org <mailto:acct-staff at icann.org>>
>> *Cc:* Sidley ICANN CCWG <sidleyicannccwg at sidley.com
>> <mailto:sidleyicannccwg at sidley.com>>; Greeley, Amy E.
>> <AGreeley at sidley.com <mailto:AGreeley at sidley.com>>; Grapsas, Rebecca
>> <rebecca.grapsas at sidley.com <mailto:rebecca.grapsas at sidley.com>>;
>> 'ICANN at adlercolvin.com <mailto:ICANN at adlercolvin.com>'
>> <ICANN at adlercolvin.com <mailto:ICANN at adlercolvin.com>>
>> *Subject:* [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9,
>> 10, 11____
>>
>> __ __
>>
>> __ __
>>
>> __ __
>>
>> Dear CCWG ACCT Co-Chairs, Members, Participants and ICANN Staff, ____
>>
>> __ __
>>
>> We are writing to raise with you the following issues that we
>> identified in our high-level review of the above- referenced
>> Annexes:____
>>
>> __ __
>>
>> *_Annex 1 (GAC as Decisional Participant)_*: We did not have any
>> high-level comments on this Annex.____
>>
>> *______*
>>
>> *_Annex 8 (Reconsideration)_*: With respect to the timing
>> requirements discussed in Paragraph 25 and elsewhere in the Annex,
>> there appears to be some inconsistency: If the Board Governance
>> Committee (BGC) takes its full 90 days to make a recommendation
>> after receiving the request, the Board would not meet its 60 day
>> timeline, and it would be tight for it to meet the 120 day time line
>> (particularly if the requestor files a rebuttal to the BGC’s
>> recommendation within 15 days of receipt). /We recommend that these
>> time frames be re-considered to remove the inconsistency, for
>> example by deleting the language relating to Board action within 60
>> days and, if necessary, providing the Board with additional time to
>> consider the BGC recommendations/.____
>>
>> __ __
>>
>> *_Annex 9 (AOC Reviews)_*: /We recommend that consideration be given
>> to further clarifying the Review Team provision in Paragraph 54 (1)
>> to specify the type of “diversity” desired (geographic or otherwise)
>> for Review Team members and (2) to state whether, in determining the
>> composition of the members of the Review Teams they select, the
>> group of chairs can solicit additional nominees or appoint less than
>> 21 members to avoid potential overrepresentation of particular ACs
>> or SOs if some nominate less than 3 members./ ____
>>
>> __ __
>>
>> *_Annex 10 (SO/AC Accountability)_*: We did not have any high-level
>> comments on this Annex. ____
>>
>> *______*
>>
>> *_Annex 11 (GAC Advice)_*: ____
>>
>> __ __
>>
>> We were asked to review the current Bylaws provision addressing GAC
>> advice and determine whether the ambiguities we identified in our
>> review of the proposed revisions to this provision are new or stem
>> from ambiguities under the current Bylaws text. We have determined
>> that there are ambiguities under the current Bylaws text, which
>> provides as follows:____
>>
>> *ICANN Bylaws Article XI, Section 2.1.j.*The advice of the
>> Governmental Advisory Committee on public policy matters shall be
>> /duly taken into account/, both in the formulation and adoption of
>> policies. In the event that the ICANN Board determines to take an
>> action that is not consistent with the Governmental Advisory
>> Committee advice, it shall so inform the Committee and state the
>> reasons why it decided not to follow that advice. The Governmental
>> Advisory Committee and the ICANN Board will then try, in good faith
>> and in a timely and efficient manner, to find a mutually acceptable
>> solution.____
>>
>> __ __
>>
>> The phrase “duly taken into account” is ambiguous, but reading it
>> together with the next sentence, which requires that the Board
>> follow a specific procedure before taking actions inconsistent with
>> GAC advice, we believe the best interpretation of this phrase is to
>> mean “do not act inconsistently with.” Based on this
>> interpretation, /we recommend the following clarification
>> (underlined) to the first sentence of this Bylaws provision: “The
>> advice of the Gov//ernmental Advisory Committee on public policy
>> matters shall be duly taken into account, both in the formulation
>> and adoption of policies_, and**ICANN shall not act inconsistently
>> with that advice except as otherwise provided in this paragraph_/.”
>> ____
>>
>> __ __
>>
>> We also note that there is no meaningful legal distinction between
>> voting and determining to take an action, as some commenters have
>> suggested. The only way the Board can legally determine or decide
>> anything under California law is by voting. ____
>>
>> __ __
>>
>> The proposed addition to the current Bylaws text is underlined
>> below:____
>>
>> __ __
>>
>> *ICANN Bylaws Article XI, Section 2.1.j.*The advice of the
>> Governmental Advisory Committee on public policy matters shall be
>> duly taken into account, both in the formulation and adoption of
>> policies. In the event that the ICANN Board determines to take an
>> action that is not consistent with the Governmental Advisory
>> Committee advice, it shall so inform the Committee and state the
>> reasons why it decided not to follow that advice. _Any Governmental
>> Advisory Committee advice approved by a full Governmental Advisory
>> Committee consensus, understood to mean the practice of adopting
>> decisions by general agreement in the absence of any formal
>> objection, may only be rejected by a vote of 2/3 of the Board,
>> and_ the Governmental Advisory Committee and the ICANN Board will
>> then try, in good faith and in a timely and efficient manner, to
>> find a mutually acceptable solution.____
>>
>> __ __
>>
>> Based on our interpretation of the current Bylaws text, described
>> above, we believe this proposed provision results in the following
>> process:____
>>
>> __1.__If GAC provides advice (whether by a full GAC consensus or a
>> lesser approval threshold), the ICANN Board must “duly take[] into
>> account” that advice -- i.e., ICANN must not act inconsistently with
>> that advice, unless #2 and/or #3 below apply. ____
>>
>> __2.__If GAC provides advice (whether by a full GAC consensus or a
>> lesser approval threshold), and the ICANN Board decides to take an
>> action inconsistent with that advice, the ICANN Board must first
>> give GAC notice and provide a rationale. ____
>>
>> __·__In addition, f the GAC advice was by a full GAC consensus, the
>> ICANN Board may decide to take an action inconsistent with that
>> advice only by a vote of 2/3 of the ICANN Board. If that 2/3
>> threshold is reached, GAC and ICANN must then try in good faith to
>> find a mutually acceptable solution. If the 2/3 threshold is not
>> reached, ICANN is required to act consistently with the consensus
>> GAC advice. ____
>>
>> /We recommend that consideration be given to further clarifying this
>> process, and we agree with commenters who have concluded that the
>> proposed provision does not impose an affirmative obligation upon
>> ICANN’s Board to vote on GAC consensus advice every time that advice
>> is provided/. ____
>>
>> We note that additional Bylaws language is being proposed to clarify
>> that, in any case, the Board needs to act in compliance with the
>> ICANN Bylaws. Thus, if the Board were to determine that following
>> GAC advice would result in non-compliance with the Bylaws, the Board
>> should be able to reject the advice (with a majority or two-thirds
>> vote, depending on whether the GAC advice was consensus advice) and
>> explain its position to GAC. ____
>>
>> Please let us know if we can assist in any way with your further
>> consideration of these issues.____
>>
>> __ __
>>
>> Kind regards,____
>>
>> Holly and Rosemary____
>>
>> __ __
>>
>> *HOLLY**J. GREGORY*
>> Partner and Co-Chair
>> Global Corporate Governance & Executive Compensation Practice
>>
>> *Sidley Austin LLP**
>> *+1 212 839 5853 <tel:%2B1%20212%20839%205853>
>> holly.gregory at sidley.com <mailto:holly.gregory at sidley.com>____
>>
>> Image removed by sender.
>> http://www.sidley.com/files/upload/signatures/SA-autosig.png
>> <http://www.sidley.com/>*SIDLEY AUSTIN LLP*____
>>
>> ____
>>
>> __ __
>>
>> __ __
>>
>> ____
>>
>>
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