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

Kavouss Arasteh kavouss.arasteh at gmail.com
Mon Jan 25 11:05:55 UTC 2016

Dear Distinguished Grec
Thank you very much for your message.
You are sticking to your own interpretation of Duly "duly taken into
account" absolutely does not mean "followed." with which I disagree .I
understand your views about the GAC but should not influence the very
meaning of"duly taken into account. The qualifier " duly" does b not have
such a NEGATIVE connotation as you describe,
You went too far unfortunately.I am in this business  for years and what
I briefly describe in my earlier message reflecting the facts.
I do not want to open a new round of exchange of e.-mail as I do not see
any benefit to do so.
We disagree because we can not agree with each other , with all "DUE
By the way ,if I translate " DUE RESPECT " as you described I am sure that
would not convey the exact meaning of "DUE RESPECT" if one  interprets  as
 having a negative sense/connotation as you have concluded
With my best regards

2016-01-25 10:57 GMT+01:00 Malcolm Hutty <malcolm at linx.net>:

> 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
>    Head of Public Affairs | Read the LINX Public Affairs blog
>  London Internet Exchange | http://publicaffairs.linx.net/
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