[CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11
Greg Shatan
gregshatanipc at gmail.com
Mon Jan 25 03:31:11 UTC 2016
Avri,
I don't have a formal legal definition of "duly" at my fingertips -- but
generally, when "due" or "duly" is used in a legal context, it connotes a
reasonable and appropriate level of attention and care, with an implication
that more (rather than less) was done by the party.
Greg
On Sun, Jan 24, 2016 at 10:06 PM, Avri Doria <avri at acm.org> wrote:
> Hi,
>
> Not lawyer and definitely of the opinion that we have understood it the
> way Greg et al have understood it up to this point.
>
> But legally, how is "duly taken into account" different from "taken
> into account"
>
> avri
>
> On 24-Jan-16 20:22, Greg Shatan wrote:
> > "duly taken into account" absolutely does not mean "followed."
> >
> > On Sun, Jan 24, 2016 at 8:10 PM, Nigel Roberts <nigel at channelisles.net
> > <mailto: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>
> > <mailto: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.rosenzweig at redbranchconsulting.com>
> > <mailto:paul.rosenzweigesq at redbranchconsulting.com
> > <mailto:paul.rosenzweigesq at redbranchconsulting.com>> ____
> >
> > O: +1 (202) 547-0660 <tel:%2B1%20%28202%29%20547-0660>
> > <tel:%2B1%20%28202%29%20547-0660>____
> >
> > M: +1 (202) 329-9650 <tel:%2B1%20%28202%29%20329-9650>
> > <tel:%2B1%20%28202%29%20329-9650>____
> >
> > VOIP: +1 (202) 738-1739 <tel:%2B1%20%28202%29%20738-1739>
> > <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>
> > <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>
> > <mailto:mathieu.weill at afnic.fr
> > <mailto:mathieu.weill at afnic.fr>>>; 'thomas at rickert.net
> > <mailto:thomas at rickert.net>
> > <mailto:thomas at rickert.net <mailto:thomas at rickert.net>>'
> > <thomas at rickert.net <mailto:thomas at rickert.net>
> > <mailto:thomas at rickert.net <mailto:thomas at rickert.net>>>;
> > 'León Felipe Sánchez Ambía'
> > <leonfelipe at sanchez.mx <mailto:leonfelipe at sanchez.mx>
> > <mailto:leonfelipe at sanchez.mx <mailto:leonfelipe at sanchez.mx>>>;
> > 'accountability-cross-community at icann.org
> > <mailto:accountability-cross-community at icann.org>
> > <mailto: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>
> > <mailto:accountability-cross-community at icann.org
> > <mailto:accountability-cross-community at icann.org>>>;
> > 'acct-staff at icann.org <mailto:acct-staff at icann.org>
> > <mailto:acct-staff at icann.org <mailto:acct-staff at icann.org>>'
> > <acct-staff at icann.org <mailto:acct-staff at icann.org>
> > <mailto:acct-staff at icann.org <mailto:acct-staff at icann.org>>>
> > *Cc:* Sidley ICANN CCWG <sidleyicannccwg at sidley.com
> > <mailto:sidleyicannccwg at sidley.com>
> > <mailto:sidleyicannccwg at sidley.com
> > <mailto:sidleyicannccwg at sidley.com>>>; Greeley, Amy E.
> > <AGreeley at sidley.com <mailto:AGreeley at sidley.com>
> > <mailto:AGreeley at sidley.com <mailto:AGreeley at sidley.com>>>;
> > Grapsas, Rebecca
> > <rebecca.grapsas at sidley.com
> > <mailto:rebecca.grapsas at sidley.com>
> > <mailto:rebecca.grapsas at sidley.com
> > <mailto:rebecca.grapsas at sidley.com>>>;
> > 'ICANN at adlercolvin.com <mailto:ICANN at adlercolvin.com>
> > <mailto:ICANN at adlercolvin.com <mailto:ICANN at adlercolvin.com>>'
> > <ICANN at adlercolvin.com <mailto:ICANN at adlercolvin.com>
> > <mailto: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>
> > <tel:%2B1%20212%20839%205853>
> > holly.gregory at sidley.com <mailto:holly.gregory at sidley.com>
> > <mailto: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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