[CCWG-ACCT] Bylaws Issue: Section 1.1(c)

[Dr Eberhard W Lisse]

Ken,

I am not a lawyer, only a gynecologist (but then, what is the difference :-)-O) but
I like the proposal in 

http://vabizlawyers.com/2012/01/18/how-to-simplify-and-improve-any-contract/

of replacing the well known legal phrase "For the avoidance of doubt" with "".

I also tend to think that adjectives are often used to narrow the provision.

Stating the obvious, that there is no" governmentally authorized regulatory authority" does not mean that there is no, can not be any, or will not be any (other) regulatory authority, such as Paul Twoomey once (in New Delhi) said to me when I asked him where ICANN takes its authority from: "We control the root".

In other words our work will not prevent them from ordering us to make cheese sandwiches.

el

-- 
Sent from Dr Lisse's iPad mini 4

> On 1 May 2016, at 09:18, Salaets, Ken <ksalaets at itic.org> wrote:
> 
> Hi Greg, all.  I tend to agree that the referenced sentence is problematic.  I can't recall ever encountering the phrase "for the avoidance of doubt."  A more common construct would be something like "To be clear" or perhaps "For the sake of clarity,..."
> 
> As for the balance of that sentence, does ICANN have any regulatory authority, let alone "governmentally authorized"?  Granted, it can set rules, but the term "regulation" often is interpreted as "ability to constrain."  Even if a regulation isn't "authorized," it doesn't mean that it may not be favored by a government or governments.  
> 
> Apologies if I am treading over well-worn ground, but using plain English could well prove invaluable in avoiding future unnecessary but perhaps inevitable tussles over semantics.  I support Greg's argument.
> 
> Cheers,
> 
> Ken
> 
> On Apr 29, 2016, at 1:53 PM, Greg Shatan <gregshatanipc at gmail.com> wrote:
> 
>> ​All, 
>> 
>> There is an issue with Section 1.1(c), which (while relatively minor) should be corrected.  (There may also be more significant issues, but I'm not going to go there.  I'm just dealing with the question of whether the Bylaws carry out the intent of the Proposal.)  
>> 
>> This section currently reads:
>> 
>> ICANN shall not regulate (i.e., impose rules and restrictions on) services that
>> use the Internet’s unique identifiers or the content that such services carry or
>> provide, outside the express scope of Section 1.1(a). For the avoidance of
>> doubt, ICANN does not hold any governmentally authorized regulatory
>> authority, and nothing in the preceding sentence should be construed to
>> suggest that it does have authority to impose such regulations.
>> 
>> There was a lot of discussion of this provision during the drafting process, and this particular formulation did not emerge until just before the document went out for public comment.​
>> 
>> My concern is with the last clause of the last sentence: "nothing in the preceding sentence should be construed to suggest that it does have authority to impose such regulations."  The particular problem is the phrase "such regulations."  When lawyers use "such" like this, it replaces "the" when referring to a thing that's already been referred to by that term (or that term with adjectives). ("The door to the bedroom is 3 feet wide. ... Such door will remain open at all times.")  Here, however, there's been no prior reference to "regulations," so it's completely unclear what this is referring to.  
>> 
>> The simplest solution would be to remove this clause and end the sentence with "authority."  That removes the issue of "What does "such regulations" refer to?"  I support this fix.
>> 
>> If we want to save the last clause, things get more complicated.  It could be changed to say "nothing in the preceding sentence should be construed to suggest that it does have such authority."  Now it's clear that "such authority" refers to "governmentally authorized regulatory authority."  It could also be changed to say "nothing in the preceding sentence should be construed to suggest that it does have authority to impose governmentally authorized regulations."  However, I'm not sure that either of these are particularly useful statements or add any clarity to the situation.  (The first is modestly more useful than the second.)
>> 
>> I look forward to any thoughts.
>> 
>> Greg
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