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

[Greg Shatan]

Brett,

I disagree with your reading of both the original language and your
proposed language.  I don't have the time to parse it, but I stand by my
earlier analysis and could demonstrate it at tiresome length.  That said,
there may be a third path that will clarify to all readers that a GPI
review may (or may not) take place, but that if it does, it shall be done
by a bottom-up multistakeholder process.  I can give some thought to that
this evening.

Greg

On Wed, Jul 6, 2016 at 5:26 PM, Schaefer, Brett <Brett.Schaefer at heritage.org
> wrote:

> 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).  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
>
>
>
> ------------------------------
> 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
>
> *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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