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

Roelof Meijer Roelof.Meijer at sidn.nl
Mon Jan 25 13:04:29 UTC 2016


May I conclude that Rosemary, when she wrote ³the phrase ³duly taken into
account² is ambiguous² was correct?
But that she was wrong on another point: this is not a problem in this
particular case, but an advantage? (in the sense that the ICANN Board can
³easily² say that they have duly taken the advice into account and that it
would be quite difficult for the GAC to prove otherwise)


Best,

Roelof




On 25-01-16 11:54, "accountability-cross-community-bounces at icann.org on
behalf of Nigel Roberts" <accountability-cross-community-bounces at icann.org
on behalf of nigel at channelisles.net> wrote:

>There is an apocryphal story I learned when working at DEC in the 1980s.
>
>Apparentl a contract was negotiated to supply hardware and software one
>time.
>
>The hardware was supplied on with one year's support, 4 hour response.
>The software was supplied with a support on a 'best' efforts basis.
>
>Now, as many people know, in the IT industry "best efforts" support
>means "We'll do what we can if there's nothing more important on" and
>that's what the drafters of the contract INTENDED.
>
>But (again, remember this is a cautionary tale), it seems that the
>jurisdiction in which the customer was interpreted "best efforts"
>extremely literally.
>
>That is to say, it was judged not on the standard of what a reasonable
>support company in the same industry would be able to do without being
>negligent, but on the standard of the best possible outcome with the
>best possible effort.
>
>Many people, in writing policy documents include words such as 'duly' to
>imply an obligation of order. But such words can have modifying effect
>in the eyes of the lawyers and judges (who are, first and foremost
>lawyers) interpreting them.
>
>This is one of the reasons the English legal system, post-Woolf, has
>diverged from the traditional common-law approach of using Latin, and
>jargon phrases, and instead drafting skill is now measured by how simply
>a document can be written.
>
>To quote Strunk and White (or was it Ernest Gowers?)
>
>"Omit needless words".
>
>and
>
>"Eschew obfuscation".
>
>
>
>On 25/01/16 08:34, Kavouss Arasteh wrote:
>> 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
>> <mailto: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
>>> <mailto:gregshatanipc at gmail.com>>
>>> *Sent*: Monday, January 25, 2016 3:33 AM
>>> *To*: "Avri Doria" <avri at acm.org <mailto:avri at acm.org>>
>>> *Cc*: "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>>
>>> *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
>>> <mailto: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>
>>>     > <mailto: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>>
>>>     >         <mailto: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 lawyer¹s 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 lawyer¹s
>>>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 Š.____
>>>     >
>>>     >             __ __
>>>     >
>>>     >             Paul____
>>>     >
>>>     >             __ __
>>>     >
>>>     >             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>>
>>>     >             <mailto:paul.rosenzweigesq at redbranchconsulting.com
>>>     <mailto:paul.rosenzweigesq 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>
>>>     >         <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=ar
>>>ticle&id=19&Itemid=9>____
>>>     >
>>>     >
>>>     >         
>>><http://www.rsaconference.com/events/us16?utm_source=signature&utm_mediu
>>>m=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>>
>>>     >             <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>>
>>>     >             <mailto: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>>
>>>     >             <mailto: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>>
>>>     >             <mailto: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>>
>>>     >         <mailto: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>>
>>>     >             <mailto: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>>
>>>     >             <mailto: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>>
>>>     >         <mailto: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>>
>>>     >         <mailto: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>>
>>>     >             <mailto: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>>
>>>     >         <mailto: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>>
>>>     >         <mailto: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>>
>>>     >         <mailto: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>>
>>>     >         <mailto: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 BGC¹s
>>>     >             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 ³diversity² 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 ³duly taken into account² 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 ³do not act inconsistently with.²  Based on this
>>>     >             interpretation, /we recommend the following
>>>clarification
>>>     >             (underlined) to the first sentence of this Bylaws
>>>     >         provision:  ³The
>>>     >             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_/.² ____
>>>     >
>>>     >             __ __
>>>     >
>>>     >             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
>>>³duly
>>>     >         take[] into
>>>     >             account² 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
>>>     >             ICANN¹s 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>>
>>>     >         <mailto: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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>>>     >
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