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

Wed Jul 6 21:24:56 UTC 2016

Hi All,
In light of this and some other conversations I think that we need to take at least 24hours to review this comment and ensure that it is a consensus comment of the CCWG before we file it, Im not sure if a 24-48hr delay in the filing of the CCWG comment would have a major impact downstream in the timelines, I have cc’d Trang and Yuko who may be able to respond to that.

I think that we may have let the AoI slip under our radar a little with all of the parallel work that is going on and we need to make sure that we get this comment correct first time and to do that we nee to do it with a full set of inputs and considerations by the CCWG members and I don’t feel we have this yet. I know that we are working to tight deadlines, but we need to make sure that we do this right.

-JG

From: Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>>
Date: Wednesday 6 July 2016 at 21:45
To: James Gannon <james at cyberinvasion.net<mailto:james at cyberinvasion.net>>
Cc: "Gregory, Holly" <holly.gregory at sidley.com<mailto:holly.gregory at sidley.com>>, Thomas Rickert <thomas at rickert.net<mailto:thomas at rickert.net>>, Mathieu Weill <mathieu.weill at afnic.fr<mailto:mathieu.weill at afnic.fr>>, "leonfelipe at sanchez.mx<mailto:leonfelipe at sanchez.mx>" <leonfelipe at sanchez.mx<mailto:leonfelipe at sanchez.mx>>, Accountability Cross Community <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>, Bernard Turcotte <turcotte.bernard at gmail.com<mailto:turcotte.bernard at gmail.com>>
Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)

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<mailto: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<mailto: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<mailto:accountability-cross-community-bounces at icann.org>> on behalf of "Gregory, Holly" <holly.gregory at sidley.com<mailto:holly.gregory at sidley.com>>
Date: Wednesday 6 July 2016 at 20:32
To: Thomas Rickert <thomas at rickert.net<mailto:thomas at rickert.net>>, Mathieu Weill <mathieu.weill at afnic.fr<mailto:mathieu.weill at afnic.fr>>, "leonfelipe at sanchez.mx<mailto:leonfelipe at sanchez.mx>" <leonfelipe at sanchez.mx<mailto:leonfelipe at sanchez.mx>>, Accountability Cross Community <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>, Bernard Turcotte <turcotte.bernard at gmail.com<mailto: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<tel:%2B1%20212%20839%205853>
holly.gregory at sidley.com<mailto:holly.gregory at sidley.com>

From: accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org> [mailto: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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