[CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11
Kavouss Arasteh
kavouss.arasteh at gmail.com
Mon Jan 25 14:52:13 UTC 2016
Dear all,
I am not comfortable with such freedom of action by ICANN.
"Duly" does not mean freedom of action.
What is the basis and RATIONALE for such interpretation.
If people wants to escape from reality and valid reasons and appropriate treatment they SHOULD NOT make such an open-ended and totally vague interpretations.
It is surprising ti hear that.
Regards
Kavouss
Sent from my iPhone
> On 25 Jan 2016, at 14:04, Roelof Meijer <Roelof.Meijer at sidn.nl> wrote:
>
> 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>>>____
>>>>>
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