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

Wed Jul 6 21:26:17 UTC 2016

Greg,

The concern is that the language proposed by Samantha is ambiguous and leaves open the possibility that the GPI could be determined in a manner not based on the bottom-up multi-stakeholder process. Specifically, the phrasing reads that ICANN is not required to use a bottom-up multistakeholder community process to determine the GPI. That, instead, it “may” do so “from time to time”:

“, the Corporation shall, except as limited by Article 4 hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet, as such global public interest may be determined from time to time by the multistakeholder community through an inclusive bottom-up multistakeholder community process, by carrying out the mission set forth in the bylaws of the Corporation (“Bylaws”).”

I suggested this change:

“…as such the global public interest shall be determined by the multistakeholder community through an inclusive bottom-up multistakeholder community process consistent with the mission set forth in the bylaws of the Corporation (“Bylaws”).”

I disagree that replacing may with shall would require that ICANN determine a GPI. There is no frequency or requirement that the GPI be determined at all. From my read, that phrasing states only that if the GPI is determined it must be done through a bottom-up multistakeholder community process.

That said, I would welcome alternative phrasing that would remove the ambiguity of Samantha’s suggested text. Perhaps this?

“…as such, when ICANN determines the global public interest, it shall be determined by the multistakeholder community through an inclusive bottom-up multistakeholder community process consistent with the mission set forth in the bylaws of the Corporation (“Bylaws”).”

On the organized versus incorporated issue, I’m frankly puzzled that you are so hostile to a change that you regard as a word choice issue based on the legal jargon preference in California. You note yourself that the terms are largely interchangeable. However, part of the value of these documents is to make clear their meaning not just to lawyers versed in US law, but to non-lawyers and non-US lawyers. Replacing “organized” with “organized and incorporated” would do this without creating the potential for confusion.

I agree completely that it is unfortunate that we are addressing this matter at the last minute.

Best,

Brett

From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Greg Shatan
Sent: Wednesday, July 06, 2016 4:46 PM
To: James Gannon
Cc: Thomas Rickert; Accountability Cross Community
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<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

________________________________
Brett Schaefer
Jay Kingham Senior Research Fellow in International Regulatory Affairs
Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy
The Heritage Foundation
214 Massachusetts Avenue, NE
Washington, DC 20002
202-608-6097
heritage.org<http://heritage.org/>
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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