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

Wed Jul 6 21:20:01 UTC 2016

In my case, it is not apathy but lack of time.

I strongly support Greg on not replacing MAY with SHALL. Perhaps we 
will ultimately determine (or define) global public interest, but I 
personally think that trying to lock in specific wording is a fools 
game and will only get us in trouble. We certainly must understand it 
better, and that will likely be an ongoing exercise.

Specifically, I am not sure what "shall be determined from time to 
time" means. I has the tone of something that will be done every N 
years on a regular schedule and that certainly is not what was meant.

Alan

At 06/07/2016 04:45 PM, Greg Shatan wrote:

>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 
><<mailto:gregshatanipc at gmail.com>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 
><<mailto:james at cyberinvasion.net>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: 
><<mailto:accountability-cross-community-bounces at icann.org>accountability-cross-community-bounces at icann.org> 
>on behalf of "Gregory, Holly" 
><<mailto:holly.gregory at sidley.com>holly.gregory at sidley.com>
>Date: Wednesday 6 July 2016 at 20:32
>To: Thomas Rickert <<mailto:thomas at rickert.net>thomas at rickert.net>, 
>Mathieu Weill 
><<mailto:mathieu.weill at afnic.fr>mathieu.weill at afnic.fr>, 
>"<mailto:leonfelipe at sanchez.mx>leonfelipe at sanchez.mx" 
><<mailto:leonfelipe at sanchez.mx>leonfelipe at sanchez.mx>, 
>Accountability Cross Community 
><<mailto:accountability-cross-community at icann.org>accountability-cross-community at icann.org>, 
>Bernard Turcotte 
><<mailto:turcotte.bernard at gmail.com>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
><tel:%2B1%20212%20839%205853>+1 212 839 5853
><mailto:holly.gregory at sidley.com>holly.gregory at sidley.com
>
>
>
>From: 
><mailto:accountability-cross-community-bounces at icann.org>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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