[CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)
matthew shears
mshears at cdt.org
Wed Jul 6 21:43:47 UTC 2016
Agree - I think it would make sense that we spend a little more time
ensuring that the restated AoI do reflect the intent and language of the
new bylaws.
Matthew
On 06/07/2016 22:24, James Gannon wrote:
> 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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--
--------------
Matthew Shears
Global Internet Policy and Human Rights
Center for Democracy & Technology (CDT)
+ 44 771 2472987
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