[CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11
Edward Morris
egmorris1 at toast.net
Mon Jan 25 05:01:30 UTC 2016
>From Black's Law Dictionary via Westlaw:
Duly:
In due or proper form or manner ; according to legal requirements.Regularly; upon a proper foundation, as distinguished from mere form. Robertson v.Perkins, 129 U. S. 233, 9 Sup. Ct. 279, 32 L. Ed. 6S6; Brownell v. Greenwich, 114 N. Y.518, 22 N. E. 24, 4 L. R. A. 6S5; Leth- brldge v. New York (Super. N. Y.) 15 N. Y. Supp.502; Allen v. Pancoast, 20 N. J. Law, 74; Van Arsdale v. Van Arsdale, 20 N. J. Law, 423;Dunning v. Coleman. 27 La. Ann. 48; Young v. Wright, 52 Cal. 410; White v. Johnson,27 Or. 282, 40 Pac. 511, 50 Am. St. Rep. 726.
Law Dictionary: What is DULY? definition of DULY (Black's Law Dictionary)
----------------------------------------
From: "Greg Shatan" <gregshatanipc at gmail.com>
Sent: Monday, January 25, 2016 3:33 AM
To: "Avri Doria" <avri at acm.org>
Cc: "accountability-cross-community at icann.org" <accountability-cross-community at icann.org>
Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11
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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