[bylaws-coord] [CCWG-ACCT] Lawyers Comments and Concerns re CCWG Comment - Version 2

[Rosemary E. Fei]

Dear All:

I have to second Holly's response here.  I, too, read the recommendation in the CCWG's draft public comment, and wondered why it didn't just say "remove".  If it had, we would not have asked for clarification.  What we did not understand, and what was obscure to us, was why that was not the recommendation, given the content of the rest of the comment.  

To be clear, we have no objection on legal grounds to removing the items of concern from grandfathering, as long as that is what the CCWG agrees should be done.  

Rosemary

-----Original Message-----
From: Andrew Sullivan [mailto:ajs at anvilwalrusden.com] 
Sent: Thursday, May 12, 2016 7:58 AM
To: Holly Gregory
Cc: 'leonfelipe at sanchez.mx'; 'Mathieu Weill'; 'thomas at rickert.net'; ICANN-Adler; 'accountability-cross-community at icann.org'; Sidley ICANN CCWG; 'ccwg-accountability5 at icann.org'; 'bylaws-coord at icann.org'
Subject: Re: [CCWG-ACCT] Lawyers Comments and Concerns re CCWG Comment - Version 2

Hi,

On comment 2 in this comments-on-the-comment document, it says this:

    Lawyers’ comment: What is the recommendation and what direction is
    the CCWG-Accountability providing to the legal drafters? In our
    May 7, 2016 comments on the draft CCWG-Accountability comment
    letter, we suggested a recommendation: “We request that the groups
    most directly involved with the documents addressed in subsections
    (B) through (E) weigh in on the need to include grandfathering
    language for those documents. Depending on such input, a final
    determination should be made as to whether those documents should
    be included in the grandfathering provision.”

I don't get what's obscure here.  The CCWG's comment is that the mentioned subsections have no justification in the CCWG Proposal.
There's precisely one thing to do in such a case: remove the subsection.  It would be helpful, at least to me, to understand why the drafters do not understand this.

The time for substantive change to the Proposal is over.  If the Proposal has deficiencies, we will have to cope with them later.  The task is to implement the Proposal in bylaws language, and that's it.
Anything not founded in either the Proposal or the facts of relevant law is not something that should appear in any changed bylaws text.
The community consensus must be treated as fundamental, or all legitimacy of this process will be lost.

Best regards,

A

--
Andrew Sullivan
ajs at anvilwalrusden.com