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

[Greg Shatan]

I think this reflects an issue in the drafting process for the comment,
which resulted in several less-than-perfect translations of the CCWG's
decisions into the draft comment.  That's why we have an iterative process
of review and comment, since we can't all be part of the process where the
words are first being put on the "page" (screen).  It would be a mistake to
take the draft comment as gospel.  This is not to impugn the efforts of
those involved.  We are all running hard and fast, and that means that you
have to circle back and fix something a little more often than if you were
in a relaxed work mode.

Greg

On Thu, May 12, 2016 at 2:02 PM, Gregory, Holly <holly.gregory at sidley.com>
wrote:

> We reiterate:  if the instruction is to remove the language then the
> recommendation should be to remove the language.
>
>
>
> Sent with Good (www.good.com)
>
> ------------------------------
> *From:* Seun Ojedeji
> *Sent:* Thursday, May 12, 2016 12:55:29 PM
> *To:* Andrew Sullivan
> *Cc:* Rosemary E. Fei; Thomas Rickert; ccwg-accountability5 at icann.org;
> bylaws-coord at icann.org; Sidley ICANN CCWG;
> accountability-cross-community at icann.org; ICANN-Adler
>
> *Subject:* Re: [CCWG-ACCT] Lawyers Comments and Concerns re CCWG Comment
> - Version 2
>
> +1 but it's certainly the Chair's call to communicate the needful to the
> legal team.
>
> Regards
>
> Sent from my LG G4
> Kindly excuse brevity and typos
> On 12 May 2016 17:27, "Andrew Sullivan" <ajs at anvilwalrusden.com> wrote:
>
>> Thanks.  FWIW, I certainly think the text should say, "Remove this."
>>
>> A
>>
>> On Thu, May 12, 2016 at 04:25:18PM +0000, Rosemary E. Fei wrote:
>> > 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
>> >
>>
>> --
>> Andrew Sullivan
>> ajs at anvilwalrusden.com
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