[CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)

Wed Jul 6 20:45:51 UTC 2016

It's unfortunate that we don't have time to run this by our counsel, as I
would be interested in their views.  Here are mine.

I would recommend against filing these comments.

FIRST, I disagree with the second point raised.  Substituting "shall" for
"may" would incorrectly imply that there is a *requirement* that a
determination of the global public interest *must* take place.  We have not
asked for such a requirement and we have not specified any such
requirement, which would render this statement nebulous, ambiguous and
undefined.  As currently drafted, *if* a determination of the global public
interest takes place it will be done by the multistakeholder community
using a bottom-up multistakeholder process, but there is (properly) no
language *requiring* that such a determination be made.

If anyone believes that Final Recommendation 1, para 51 *requires* the
initiation of a process to determine the global public interest, that
should either be a part of Work Stream 2 or a huge implementation item for
Work Stream 1.  As far as I can see, it is neither -- which further proves
that changing "may" to "shall" goes beyond the recommendations of the CCWG.

SECOND, I also disagree with the third point raised. "Organized" is
commonly used in Articles of Incorporation (indeed, in some states, such as
Massachusetts, a non-profit corporation files Articles of Organization
rather than Articles of Incorporation).  As our counsel pointed out on the
last call, the California official form for Articles of Incorporation uses
the term "organized." (See attached)  It is a best practice to stick
closely to the official language provided by the jurisdiction -- here it is
"organized."  This is demonstrated in model California Articles of
Incorporation prepared by Public Counsel, a pro bono law firm, and
available online (see attached or
http://www.publiccounsel.org/publications?id=0059).  It would be far
preferable if we were to accept the clarification that "organized" is
what's used in this circumstance, rather than to recommend a change that is
at best meaningless and at worst creates the potential for confusion (since
one always looks for meaning in any change, and confusion could fill the
void created by the meaninglessness of this change).  To paraphrase
Shakespeare, I don't think the confusion is in the document, it is in
ourselves (or at least in some of us) -- and it would be better for us to
adjust our understanding of the document, rather than to adjust the
document to suit our misunderstanding.

Of course, the language of the CCWG comment is relatively undemanding -- we
only ask that "counsel" (whose counsel?  ICANN's?) or "the drafters" (why
the difference?) review the language.  We do not justify our
quasi-recommendations of changes, other than by saying that we are confused
by the word "organized" and by demonstrating that we are confused about
what is permissive and what is required.

Frankly, I'm far from sure that this comment is widely supported, other
than by apathy or lack of time.  I think it would be a mistake for either
of these two recommendations (?) to be adopted, and I hope that counsel/the
drafters, upon further review, let the original drafting stand.

The only thing I agree with is the trivial change from "further" to
"future," which at least does not make matters worse.  This is hardly worth
a comment by itself.

In sum, I reiterate that I would recommend against filing these comments.

Best regards,

Greg

On Wed, Jul 6, 2016 at 3:49 PM, Greg Shatan <gregshatanipc at gmail.com> wrote:

> I agree.  This is a legal document, and we should have the benefit of
> counsel on this.
>
> Greg
>
> On Wed, Jul 6, 2016 at 3:36 PM, James Gannon <james at cyberinvasion.net>
> wrote:
>
>> While not able to certify anything, if there are issues that our counsel
>> see I think its important that they are raised.
>>
>> -James
>>
>> From: <accountability-cross-community-bounces at icann.org> on behalf of
>> "Gregory, Holly" <holly.gregory at sidley.com>
>> Date: Wednesday 6 July 2016 at 20:32
>> To: Thomas Rickert <thomas at rickert.net>, Mathieu Weill <
>> mathieu.weill at afnic.fr>, "leonfelipe at sanchez.mx" <leonfelipe at sanchez.mx>,
>> Accountability Cross Community <accountability-cross-community at icann.org>,
>> Bernard Turcotte <turcotte.bernard at gmail.com>
>> Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public
>> Consultation on Articles of Incorporation (AOC)
>>
>> Dear Co-Chairs and CCWG-Accountability Members and Participants,  Please
>> let us know if you want Sidley and/or Adler to comment on this before you
>> post it.  We will not do so unless instructed to.  Holly
>>
>>
>>
>> *HOLLY J. GREGORY*
>> Partner and Co-Chair, Global Corporate Governance & Executive
>> Compensation Practice
>>
>>
>> *SIDLEY AUSTIN LLP *+1 212 839 5853
>> holly.gregory at sidley.com
>>
>>
>>
>> *From:* accountability-cross-community-bounces at icann.org [
>> mailto:accountability-cross-community-bounces at icann.org
>> <accountability-cross-community-bounces at icann.org>] *On Behalf Of *Bernard
>> Turcotte
>> *Sent:* Wednesday, July 06, 2016 3:27 PM
>> *To:* Accountability Cross Community
>> *Subject:* [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public
>> Consultation on Articles of Incorporation (AOC)
>>
>>
>>
>> All,
>>
>>
>>
>> Please find attached the draft comment to the ICANN public consultation
>> on the Articles of Incorporation from the leadership.
>>
>>
>>
>> These comments are based on the questions raised during the CCWG meeting
>> on the AOC and in consideration of Sam Eisner's response to those questions.
>>
>>
>>
>> Please respond to the list ASAP if you have comments as this public
>> consultation closes in a few hours.
>>
>>
>>
>> Bernard Turcotte
>>
>> ICANN Staff Support for the CCWG Co-Chairs.
>>
>>
>>
>>
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>
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