[CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11
ceo at auda.org.au
Tue Jan 26 01:15:16 UTC 2016
With my lawyers hat firmly positioned on top of my head…..
I may have misunderstood (and if I have I apologise in advance) but aren’t Holly et al advising that 'not act inconsistently with’ is likely how an IRP panel or a court WOULD interpret the current by-law words? And if so, us rejecting that interpretation isn't really the point. The by-law text will need to be clarified to ensure as far as possible that it is interpreted as we believe it should be.
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> On 26 Jan 2016, at 01:09 , Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com> wrote:
> 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 Rosenzweig
> paul.rosenzweig at redbranchconsulting.com
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> -----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:
>> 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,
> 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 Hutty | tel: +44 20 7645 3523
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