[PC-NCSG] Deadline extended for ICANN's restated Article of Incorporation to July 13

matthew shears mshears
Wed Jul 13 19:14:27 EEST 2016


Hi all

New deadline is today.  But there have been developments on the CCWG 
list that may have resolved this issue.  The proposed text that was 
agreed on a recent call would change the proposed AOI language:

"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?)."

To the following:

"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"

This means that GPI may be determined as is needed and that any such 
determination shall be done by BUMP.

I believe this provides the clarity that the original text did not and 
therefore addresses the concern that was highlighted in the proposed 
NCSG submission.  I think this obviates the need for us to submit.

Matthew


On 08/07/2016 14:24, Edward Morris wrote:
> Hi Matt,
> I don't agree that the Bylaws and the AoI are inconsistent with each 
> other.
> Articles and Bylaws have different purposes and functions. The 
> Articles state that the GPI can be determined by the community through 
> BUMP if it so desires. That's general and flexible, as Articles of 
> Incorporation should be. The Bylaws are more specific, as Bylaws 
> should be, ensuring that BUMP is used to ensure GPI. Nowhere, though, 
> is it mandated that the GPI must be determined, just that if it is 
> done so BUMP must be used. This is the same in both the Articles and 
> the Bylaws.
> One note about hierarchy: the Articles are the superior legal 
> instrument and Bylaws need to conform to it, not the other way 
> around.  We're actually doing things a bit backwards here in the 
> transition proposals.
> I am opposed to using the word "shall" in any context here as is 
> offered in the proposed NCSG statement. "Shall" requires establishment 
> of a GPI and that is not faithful to either the proposed Articles or 
> the Bylaws. Legally it would open up questions of timing 
> and legitimacy of the validity of any definition ( what would an IRP 
> consider a minimum acceptable definition, if the community is 
> /required/ to establish one?) and opens the question as how to proceed 
> in parts of the Articles and Bylaws  mentioning GPI if the BUMP is 
> unable to agree on a GPI definition in a timely manner.
> I have no problem in supporting the Articles as written. As counsel 
> has written "From a legal drafting perspective, the word "may" is 
> appropriate in this context, specifically as used in the phrase "may 
> be determined from time to time" which indicates that the 
> determination is made based on when the need for a determination 
> arises. Use of "may" in this context does not suggest that someone 
> other than the multistakeholder community has a decision right".
> This opinion was supported by both Sidley and Austin and Adler and 
> Colvin, the two law firms engaged by the CCWG, both of which have a 
> fiduciary obligation to act faithfully and in the best interest of 
> this community. I believe they have done so here.
> The NCSG proposal is a solution to a problem that does not exist. In 
> fact, by proposing to require community determination of the GPI 
> through use of the word "shall" it creates a number of potential 
> problems that the current formula does not risk. The proposed Articles 
> are superior to the NCSG proposal and as such I do not support 
> submission of the proposed statement on behalf of the NCSG.
> Thanks for all of your hard work on this, Matt. Although I do agree 
> with our lawyers that we don't have any real problem here, I do 
> appreciate your concern and perceptions and appreciate your effort in 
> bringing them to the attention of all of us.
> Respectfully,
> Ed Morris
> ------------------------------------------------------------------------
> *From*: "matthew shears" <mshears at cdt.org>
> *Sent*: Friday, July 8, 2016 12:51 PM
> *To*: "PC-NCSG" <pc-ncsg at ipjustice.org>
> *Subject*: [PC-NCSG] Deadline extended for ICANN's restated Article of 
> Incorporation to July 13
>
> Dear all
>
> Following some extensive e-mailing in the last hours of the public 
> comment on the CCWG list about the need for more time, ICANN has 
> agreed to extend this deadline to _July 13_.  I filed the attached 
> just before the deadline, then received the mail from Ed, followed the 
> last minute exchanges on the CCWG list and then saw that the deadline 
> had been extended.  I did not confirm submission as a result, so the 
> attached comment was _not_ filed.
>
> There has been some to-ing and fro-ing on the CCWG list as Ed noted in 
> his mail.  The CCWG's outside counsel is comfortable with the use of 
> "may from time to time" for example.  They state in a mail to the 
> CCWG: "From a legal drafting perspective, the word ?may? is 
> appropriate in this context, specifically as it is used in the phrase 
> ?may be determined from time to time? which indicates that the 
> determination is made based on when the need for a determination 
> arises. Use of ?may?  in this context does not suggest that someone 
> other than the multistakeholder community has a decision right."  
> Personally, I would normally be fine with the CCWG out side counsel's 
> findings but in this case I still have concerns.  To elaborate:
>
> The CCWG in its final proposal stated the following (my highlighting 
> and underlining):
>
>     CCWG-Accountability Final Recommendation 1, para 51: The Articles
>     of Incorporation will be amended _to clarify_ that*the global
>     public interest will be determined through a bottom-up,
>     multistakeholder process*.
>
>     CCWG-Accountability Final Recommendation 5, para 153 (core values)
>     2: Seeking and supporting broad, informed participation reflecting
>     the functional, geographic, and cultural diversity of the Internet
>     at all levels of policy development and decision-making *to ensure
>     that the bottom-up, multistakeholder policy development process is
>     used to ascertain the global public interest *and that those
>     processes are accountable and transparent.
>
> These two statements above are pretty clear.  The statement in para 51 
> is definitive using the word "will"; the statement in para 153 
> reinforces that through the use of the word "ensure".
>
> It would seem to me that the restated AoI does not reflect the 
> language above (which is a different matter than whether or not the 
> "may" is an appropriate legal term).  In my view the proposed AoI 
> langauge goes further than clarifying and in so doing dilutes the 
> language in para 51 above:
>
>     Text from the Draft Restated Articles of Incorporation: ?, 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 (i) coordinating the
>     assignment of Internet technical parameters as needed to maintain
>     universal connectivity on the Internet; (ii) performing and
>     overseeing functions related to the coordination of the Internet
>     Protocol ("IP") address space; (iii) performing and overseeing
>     functions related to the coordination of the Internet domain name
>     system ("DNS"), including the development of policies for
>     determining the circumstances under which new top-level domains
>     are added to the DNS root system; (iv) overseeing operation of the
>     authoritative Internet DNS root server system; and (v) engaging in
>     any other related lawful activity in furtherance of items (i)
>     through (iv), *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*?).
>
> In the attached NCSG I added a comment suggesting using the specific 
> language from paras 51 and 153 as a replacement for the language in 
> the restated AoI.  I think this would be the simplest appraoch and 
> also remain consistent with what we as the CCWG and broader community 
> have agreed.
>
> We can still file the attached.  But I feel further discussion is 
> warranted on this matter in the PC.
>
> Your thoughts are very welcome.
>
> Matthew
>
> -------- Forwarded Message --------
> Subject: 	NCSG comment on restated AoI
> Date: 	Wed, 6 Jul 2016 22:57:49 +0100
> From: 	matthew shears <mshears at cdt.org>
> To: 	comments-draft-restated-articles-incorporation-27may16 at icann.org
>
> Please see attached.
>
> Matthew Shears
> NCSG - PC
>
>
> --------------
> Matthew Shears
> Global Internet Policy and Human Rights
> Center for Democracy & Technology (CDT)
> + 44 771 2472987
>
>
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-- 

--------------
Matthew Shears
Global Internet Policy and Human Rights
Center for Democracy & Technology (CDT)
+ 44 771 2472987



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