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

Thu Jul 7 09:26:39 UTC 2016

I like this change. Even if it would not make a difference in court,
language that is unambiguous even to non-lawyers should be preferred
(assuming of course it remains unambiguous also to lawyers).

Tapani

On Jul 07 01:05, Greg Shatan (gregshatanipc at gmail.com) 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> 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>
> > Date: Wednesday, July 6, 2016 at 2:24 PM
> > To: Greg Shatan <gregshatanipc at gmail.com>
> > Cc: "Gregory, Holly" <holly.gregory at sidley.com>, 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>, Trang Nguyen <trang.nguyen at icann.org>, Yuko
> > Green <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>
> > Date: Wednesday 6 July 2016 at 21:45
> > To: James Gannon <james at cyberinvasion.net>
> > Cc: "Gregory, Holly" <holly.gregory at sidley.com>, 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)
> >
> > 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
> >>>
> >>> 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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> >>> immediately.
> >>>
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