[CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11

[Malcolm Hutty]

On 24/01/2016 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.

I also agree that this would be a substantial change.

To support that, I would ask you to consider the follow, not unlikely,
scenario.

The GAC has advised the Board to do something, but what it has advised
is not entirely clearly, and there is certainly ambiguity as to how it
might be implemented. The Board has then done something. A materially
affected party, unhappy with the Board's action and preferring an
alternative that would take a more extreme view of the GAC advice,
challenges the action in the IRP. The Board takes the view that it has
taken the GAC's advice into account and that what it has done is
reasonably consistent with the GAC advice; the complainant argues that
the action was not consistent with it.

If the IRP finds that factually the complainant is correct to allege
that the Board's action was not consisistent with the GAC advice, what
is the consequence of that? It seems to vary according to which standard
we choose:

- If the current standard applies, that the Board "duly take into
account" GAC advice, the IRP may still find that the Board did do that:
since they noted the GAC's advice, considered it, and believed (albeit
incorrectly) that what they were doing constituted a reasonably
implementation of it, it is hard to say they did not meet this standard.
The IRP will however order the Board that to bring itself back into
compliance with the bylaws it must notify the GAC that it has acted
inconsistently, and try to find a mutually acceptable solution. The
action, however, may stand: a solution need not necessarily involve
cancelling the action, but might be found through supplementing the
action with another.

- If Holly's standard applies, that the Board "must not act
inconsistently" with GAC advice, then the mere finding that the Board
has acted inconsistently invalidates that decision. The action must be
quashed, if it is possible to do so; failure to do so would consistute
perpetuating the bylaws breach.

This is a material change, that may significantly affect the outcome.

Personally, I do not believe this change is needed or desirable. For
that reason, I respectfully disagree with accepting Holly's advice on
this particular case.

Kind Regards,

Malcolm.

-- 
            Malcolm Hutty | tel: +44 20 7645 3523
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