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

Wed Jul 6 23:30:52 UTC 2016

Dear Thomas, Mathieu, Leon, and CCWG –Accountability Members and Participants:

Here are our comments on the draft public comment that Thomas circulated late this afternoon.  Please consider our edits which we provide in bold blue.  Our comments are provided in red.

1. Article 1 - Future v. further laws

1.1. Text from the Draft Restated Articles of Incorporation: “Any reference in these Articles to the Code shall include the corresponding provisions of any further United States tax code.”

1.2. Issue: The use of the word “further” instead of “future” appears to be a typographical error, and if unaddressed would raise concern to many in the CCWG-Accountability as leaving the door to unintended consequences.

1.3. Recommendation: Replace “further” with “future”

2. Article 2 - May v. Shall on global public interest

2.1. Text from the Draft Restated Articles of Incorporation: “, the Corporation shall, except as limited by Article 54 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 by (i) coordinating the assignment of Internet technical parameters as needed to maintain universal connectivity on the Internet; (ii) performing and overseeing functions related to the coordination of the Internet Protocol ("IP") address space; (iii) performing and overseeing functions related to the coordination of the Internet domain name system ("DNS"), including the development of policies for determining the circumstances under which new top-level domains are added to the DNS root system; (iv) overseeing operation of the authoritative Internet DNS root server system; and (v) engaging in any other related lawful activity in furtherance of items (i) through (iv), 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”).

2.2. Issue: Concerns were raised regarding the use of the term “may.”  Some felt this did not properly implement the recommendations of the CCWG-Accountability on this topic which include:

2.2.1. CCWG-Accountability Final Recommendation 1, para 51: The Articles of Incorporation will be amended to clarify that the global public interest will be determined through a bottom-up, multistakeholder process.

2.2.2. CCWG-Accountability Final Recommendation 5, para 153 (core values) 2: Seeking and supporting broad, informed participation reflecting the functional, geographic, and cultural diversity of the Internet at all levels of policy development and decision-making to ensure that the bottom-up, multistakeholder policy development process is used to ascertain the global public interest and that those processes are accountable and transparent.

2.3. Recommendation: The CCWG-Accountability would request that counsel review the Draft Restated Articles of Incorporation to ensure these properly implement its recommendations in this matter.

We respectfully disagree with comment 2 and recommend that it be deleted. From a legal drafting perspective, the word “may” is appropriate in this context, specifically as it is used in the phrase “may be determined from time to time” which indicates that the determination is made based on when the need for a determination arises. Use of “may”  in this context does not suggest that someone other than the multistakeholder community has a decision right.

3.   We agree with Thomas’ proposal to delete the comment on Article 2 regarding the use of the word “organized.”   This is a legal document and “organized”  is the appropriate term.
We have conferred with Adler, and they have confirmed that they have no further comments.
Kind regards,
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<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 Thomas Rickert
Sent: Wednesday, July 06, 2016 6:02 PM
To: Greg Shatan
Cc: Accountability Cross Community
Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)

I agree we should let Holly and Rosemary chime in with their view.

I would just note the following:

- We agree on the first point.

- With respect to the second point - we are making reference to our report and ask the drafters to ensure that this is adequately covered. Therefore, there should not be the risk of going beyond the recommendations our group has made. In my view, we could fix the concerns some of you raised by reframing the Issues paragraph as follows:

"Issue: Concerns were raised regarding use of the term “may”. Some felt this did not properly implement the recommendations of the CCWG-Accountability on this topic which include:"

This tweak would remove reference to the word „shall“ and just request the lawyers to double-check whether our recommendations are covered.

- On the third point: Greg put additional information on the record showing that the language is not ambiguous. This could be pointed to if need be. Thus, we could potentially drop that point.

I have attached an updated version.

Please note that our comment shall encourage the drafters to take a second look at the document based on our feedback. If concerns are raised or language is perceived to be unclear, that is something we can and should raise. I trust that the legal teams have good reason for why they framed things as they did in the draft we now comment on. Still, the perception that some have justifies that these concerns are being brought up and reviewed.

We will now let the discussion go on and file our comment a bit late. I am sure it will still be taken into account.

Thanks and kind regards,
Thomas

Am 06.07.2016 um 23:44 schrieb Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>>:

I also agree with Edward that we benefit by letting the retained pros come on to the field and kick the ball around with the rest of us.

On Wed, Jul 6, 2016 at 5:40 PM, Edward Morris <egmorris1 at toast.net<mailto:egmorris1 at toast.net>> wrote:
I agree with Greg for the exact reasons he has cited. Legal language has a structure and definitional quality all it's own and I would be very hesitant to submit this comment without having first run it by our counsel. My experience and education causes me to agree with Greg's analysis and I would urge caution in approaching this matter in a less than thorough manner. This is a legal document very specific to California law and I would be uncomfortable submitting something that has not yet been vetted by our legal team.

Best,

Ed Morris

Sent from my iPhone

On 6 Jul 2016, at 21:51, Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>> 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).  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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