[CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11
Kavouss Arasteh
kavouss.arasteh at gmail.com
Mon Jan 25 08:34:46 UTC 2016
Dear All
Since many years I am struggling with the use of the term" Duely" ,"Due course" " Due account",Due action",undue interference" and ,,,,
These are qualifiers used to provide some degree of flexibility and manoeuvring . Their use , depend on the circumstances and conditions in which they are used. Their use are also depending on degree of judgement which were / are practices by those using it.
I suggest the lawyers review the revised text for the text under consideration , in particular with the replacement of " consistent with GAC advice" which caused difficulties for some , in using the current language in the Bylaw , as close as possible
Regards
Kavouss
Sent from my iPhone
> On 25 Jan 2016, at 06:01, Edward Morris <egmorris1 at toast.net> wrote:
>
> 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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