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

Kavouss Arasteh kavouss.arasteh at gmail.com
Mon Jan 25 14:57:12 UTC 2016

Dear Holly,
Yes provided that it does not lead to another ambiguity resulted from misinterpretation

Sent from my iPhone

> On 25 Jan 2016, at 15:46, Gregory, Holly <holly.gregory at sidley.com> wrote:
> 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
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