[bylaws-coord] [CCWG-ACCT] Fwd: Human Rights Transition Provision: Bylaws Section 27.3(a)

Mon May 2 02:10:10 UTC 2016

I support the changes proposed by counsel, and I believe they make this
section consistent with the intent of the CCWG  Proposal.

You're entitled to your opinion, Seun, but stating it as if it were a fact
doesn't make it a fact -- it's still your opinion that "what we have done
is NOT in-line with the interpretation of what was written in the report."
 I disagree with your opinion.

In my opinion, what we had before was "NOT in-line with the interpretation
of what was written in the report," and I've provided the basis for that in
prior emails.  What we have now -- suggested by counsel -- brings the Draft
Bylaws in line with the CCWG Proposal.

I don't think what we had in the report was a "mistake" (and I don't think
anyone actually said that even though you seem to think otherwise); rather
what we had was an ambiguous phrase in the so-called "draft bylaw" in the
Proposal (which was never meant to be used verbatim in the actual Bylaws),
which was then clarified by repeated statements that the review of the FoI
in WS2 would proceed the same way as the review and approval of the
Proposal in WS1.  The only "mistake" was what was in the Draft Bylaw
circulated by comment, and that has now been corrected by the language
proposed by counsel.

Speaking to the other comments in this thread:

The review by the Chartering Organizations is covered by the clause "using
the same process and criteria as for Work Stream 1 Recommendations."  We
don't need to spell that process out here.

"Unless and until" is a conjunctive clause commonly used in legal
drafting.  Like many of these "legal twins," it is a set phrase that often
tends to be used without a second thought as to the slightly different
meanings of the two words.  Its use can tend to be reflexive by those who
draft a lot of bylaws, contracts or similar legal documents.  There's
something comfortable about seeing these types of phrases.  That said, in
this instance, we would probably be fine with "until."

Greg

On Sun, May 1, 2016 at 6:38 PM, Seth Johnson <seth.p.johnson at gmail.com>
wrote:

> Any reason why the Core Value is not in force "unless" (and until) the FoI
> is done, when the CCWG Report only says "until"?  The FoI's presence in the
> By-laws is not conditional.  That is, it's not as if it's only in force
> *if* we work it out -- it *has* to be worked out!  :-)
>
> If you make it conditional, the process could be forced to choose between
> a weak compromise or no FoI at all, which is really not a choice or
> compromise.  We don't want to set it up that that kind of brinksmanship is
> where the process ends up running aground.  The process should be one where
> we know we have to address the nature and role of the HR commitment and
> discuss it in terms of the *substance* of the issue, and reach compromises
> only on that basis -- and not run up against choices between unappealing
> compromises or nothing.
>
> I asked this before, and it may be that there is a rationale, or perhaps
> this language somehow does not put us in this position.
>
> I'd think that simply deleting the words "unless and" would be the best
> thing.
>
>
>
> Seth
>
> On Sun, May 1, 2016 at 4:42 PM, Mathieu Weill <mathieu.weill at afnic.fr>
> wrote:
>
>> Dear colleagues,
>>
>> Please find below for your consideration some suggestions from our
>> lawyers for clarification of the bylaw language regarding the Human rights
>> FoI. This follows our request during the previous call.
>>
>> Best,
>>
>> Mathieu Weill
>> ---------------
>> Depuis mon mobile, désolé pour le style
>>
>> Début du message transféré :
>>
>> *Expéditeur:* "Gregory, Holly" <holly.gregory at sidley.com>
>> *Date:* 1 mai 2016 19:10:53 UTC+2
>> *Destinataire:* "'Mathieu Weill'" <mathieu.weill at afnic.fr>, "'Thomas
>> Rickert'" <thomas at rickert.net>, León Felipe Sánchez Ambía <
>> leonfelipe at sanchez.mx>, "bylaws-coord at icann.org" <bylaws-coord at icann.org>
>> *Cc:* ACCT-Staff <acct-staff at icann.org>, "Rosemary E. Fei" <
>> rfei at adlercolvin.com>, "ICANN at adlercolvin.com" <ICANN at adlercolvin.com>,
>> Sidley ICANN CCWG <sidleyicannccwg at sidley.com>, "
>> Samantha.Eisner at icann.org" <Samantha.Eisner at icann.org>
>> *Objet:* *Human Rights Transition Provision:  Bylaws Section 27.3(a)*
>>
>> Dear Co-Chairs and Bylaws Coordinating Group:
>>
>> On the CCWG call last week, there was a discussion of the Bylaws language
>> regarding the transition provision on Human Rights [27.3(a)] and it was
>> suggested that the language be clarified to ensure that the same approval
>> process used for Work Stream 1 would apply.  We propose the following
>> clarifying edits.  We suggest that you share this with the CCWG and if
>> there is agreement, the following proposed edit should be included in the
>> CCWG’s public comment:
>>
>> Redline:
>>
>> *Section 27.3. HUMAN RIGHTS*
>>
>>
>>
>> (a) The Core Value set forth in Section 1.2(b)(viii) shall have no force
>> or effect unless and until a framework of interpretation for human rights (“
>> *FOI-HR*”) is approved by (i) approved for submission to the Board by the
>> CCWG-Accountability as a consensus recommendation in Work Stream 2, and (ii)
>> approved by each of the CCWG-Accountability’s chartering organizations
>> and (iii) the Board, (in each the case of the Board, using the same
>> process and criteria used by the Board to consider the as for Work
>> Stream 1 Recommendations).
>>
>>
>>
>> (b) No person or entity shall be entitled to invoke the reconsideration
>> process provided in Section 4.2, or the independent review process provided
>> in Section 4.3, based solely on the inclusion of the Core Value set forth
>> in Section 1.2(b)(viii) (i) until after the FOI-HR contemplated by Section
>> 27.3(a) is in place or (ii) for actions of ICANN or the Board that occurred
>> prior to the
>>
>> effectiveness of the FOI-HR.
>>
>> Clean:
>>
>> *Section 27.3. HUMAN RIGHTS*
>>
>>
>>
>> (a) The Core Value set forth in Section 1.2(b)(viii) shall have no force
>> or effect unless and until a framework of interpretation for human rights (“
>> *FOI-HR*”) is (i) approved for submission to the Board by the
>> CCWG-Accountability as a consensus recommendation in Work Stream 2 and (ii)
>> approved by the Board, in each case, using the same process and criteria as
>> for Work Stream 1 Recommendations.
>>
>>
>>
>> (b) No person or entity shall be entitled to invoke the reconsideration
>> process provided in Section 4.2, or the independent review process provided
>> in Section 4.3, based solely on the inclusion of the Core Value set forth
>> in Section 1.2(b)(viii) (i) until after the FOI-HR contemplated by Section
>> 27.3(a) is in place or (ii) for actions of ICANN or the Board that occurred
>> prior to the
>>
>> effectiveness of the FOI-HR.
>>
>> Kind regards,
>>
>>
>>
>> Holly and Rosemary
>>
>>
>>
>>
>>
>> *HOLLY* *J. GREGORY*
>> Partner and Co-Chair
>> Corporate Governance & Executive Compensation Practice Group
>>
>> *Sidley Austin LLP*
>> 787 Seventh Avenue
>> New York, NY 10019
>> +1 212 839 5853
>> holly.gregory at sidley.com
>> www.sidley.com
>>
>> [image: http://www.sidley.com/files/upload/signatures/SA-autosig.png]
>> <http://www.sidley.com/> *SIDLEY AUSTIN LLP*
>>
>>
>>
>>
>>
>>
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>
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