[CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)
matthew shears
mshears at cdt.org
Thu Jul 7 07:00:55 UTC 2016
Thanks Greg. But, why would we not use the langugage we've agreed in
the new Bylaws as it relates to GPI?
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.
Thanks.
Matthew
On 07/07/2016 06:05, Greg Shatan wrote:
> All,
>
> For added clarity, I propose the following change:
>
> *_Original Language in Revised Bylaws_:*
>
> 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*,*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*”).
>
> *_Proposed Language_:*
>
> 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 carrying out the mission set forth in the
> bylaws of the Corporation (“*Bylaws*”). /Such global public interest
> may be determined from time to time. Any determination of such global
> public interest shall be made by the multistakeholder community
> through an inclusive bottom-up multistakeholder community process./
>
> Basically, what I've done is to remove the long inserted phrase about
> determining the GPI (between the two red commas in the original
> language above) and then try to "unpack" that phrase into sentences.
> Thrusting this phrase in the middle of the sentence was clearly
> causing two comprehension problems, even though the drafting was
> technically correct. In addition to the previously discussed
> comprehension problem around the word "may," the mid-sentence
> insertion of the phrase obscured the connection between the final
> words ("by carrying out the mission...") and the thought that it was
> completing ("the Corporation shall ... pursue the charitable and
> public purposes of [x] and [y]..."). Removing the inserted phrase
> makes the primary narrative thrust of the sentence clear: "*the
> Corporation shall ... pursue the charitable and public purposes of [x]
> and [y] by by carrying out the mission set forth in the bylaws.*"
>
> [Note: I'm using "x" and "y" instead of the actual language to make
> the sentence shorter and easier to follow.]
>
> Lawyers love long sentences (I've seen some go on for 20 lines or
> more), and they love inserting explanatory or qualifying phrases in
> the middle of the sentences, such as this phrase inserted solely to
> show how such phrases are inserted, so that such sentences can run
> on. Lawyers will also use the word "such" in a somewhat futile effort
> to indicate that the word following (in this case, "sentences") was
> already used in the sentence and is being referred to again with the
> same meaning. These drafting habits unfortunately make following the
> main thread of a sentence increasingly difficult. They also force
> awkward phrasing of the inserted clauses, since these clauses have to
> be drafted as referential fragments, rather than self-sufficient
> sentences. Ultimately, readability and clarity of meaning suffers.
>
> I hope that my suggested change clarifies the main thread of the
> sentence, and also clarifies the meaning of the inserted phrase.
>
> Greg
>
> On Wed, Jul 6, 2016 at 8:38 PM, Trang Nguyen <trang.nguyen at icann.org
> <mailto:trang.nguyen at icann.org>> wrote:
>
> All,
>
> The ICANN restated articles of incorporation is not on the
> critical path so we are able to accommodate an extension of the
> public comment period. The close of the public comment period has
> been extended to 13 July.
>
> Trang
>
> From: James Gannon <james at cyberinvasion.net
> <mailto:james at cyberinvasion.net>>
> Date: Wednesday, July 6, 2016 at 2:24 PM
> To: Greg Shatan <gregshatanipc at gmail.com
> <mailto:gregshatanipc at gmail.com>>
> 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>>, Trang Nguyen
> <trang.nguyen at icann.org <mailto:trang.nguyen at icann.org>>, Yuko
> Green <yuko.green at icann.org <mailto:yuko.green at icann.org>>
>
> Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for
> Public Consultation on Articles of Incorporation (AOC)
>
> 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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