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

[Gregory, Holly]

Dear All,

We were asked whether the current bylaw language "duly taken into account" is ambiguous.  We concluded that it is ambiguous and that, especially when read in the context of the remaining language of the bylaw provision requiring a specific process should the Board not follow GAC advice, the language is susceptible to an interpretation that many of you do not support (as apparent in the many emails our comment generated). Since it is ambiguous, it is also subject to other interpretations.  We have no position on the substantive issue of what impact GAC advice should have.  We recommend that work be undertaken to remove the ambiguity.

Kind regards, Holly



Sent with Good (www.good.com)

________________________________
From: Paul Rosenzweig
Sent: Monday, January 25, 2016 08:09:13 AM
To: 'Malcolm Hutty'; 'Greg Shatan'
Cc: 'ICANN'; 'Thomas Rickert'; accountability-cross-community at icann.org; acct-staff at icann.org; Sidley ICANN CCWG; Greeley, Amy E.; Grapsas, Rebecca
Subject: RE: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11

Weighing back in, a few more thoughts:  First, the "duly taken into account"
language has been in the bylaws for quite some time -- and it has been
implemented in taking GAC advice into account (or not) over that time
without causing any appreciable problem.  Second, changing, "taken into
account" to interpret it as "not act inconsistently" is a substantive change
in the standard to be applied by the Board in considering the GAC advice
and, as Malcolm points out, would have second order effects on an IRP review
of the Board's actions in ways that are likely to be confusing.  Third,
without doubt, the idea of "not act inconsistently" gives greater privilege
to GAC advice than it currently has.

For these reasons, I believe that, notwithstanding my great respect for the
Sidley -Adler team, we should reject this reinterpretation.  If they remain
convinced that "duly taken into account" is too ambiguous for a bylaw
(notwithstanding its provenance over the years) and that the phrase must be
changed then the reasonable options are words like "considered" or
"reviewed" or such ...

Paul

Paul Rosenzweig
paul.rosenzweig at redbranchconsulting.com
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
Skype: paul.rosenzweig1066
Link to my PGP Key


-----Original Message-----
From: Malcolm Hutty [mailto:malcolm at linx.net]
Sent: Monday, January 25, 2016 4:57 AM
To: Greg Shatan <gregshatanipc at gmail.com>; Paul Rosenzweig
<paul.rosenzweig at redbranchconsulting.com>
Cc: ICANN <ICANN at adlercolvin.com>; Thomas Rickert <thomas at rickert.net>;
accountability-cross-community at icann.org; acct-staff at icann.org; Sidley ICANN
CCWG <sidleyicannccwg at sidley.com>; Greeley, Amy E. <AGreeley at sidley.com>;
Grapsas, Rebecca <rebecca.grapsas at sidley.com>
Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11



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/

                 London Internet Exchange Ltd
       Monument Place, 24 Monument Street, London EC3R 8AJ

         Company Registered in England No. 3137929
       Trinity Court, Trinity Street, Peterborough PE1 1DA






****************************************************************************************************
This e-mail is sent by a law firm and may contain information that is privileged or confidential.
If you are not the intended recipient, please delete the e-mail and any attachments and notify us
immediately.

****************************************************************************************************
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20160125/9af35b64/attachment-0001.html>