[PC-NCSG] Deadline extended for ICANN's restated Article of Incorporation to July 13
Dr. Tatiana Tropina
t.tropina
Wed Jul 13 23:56:57 EEST 2016
Hi Matthew,
thanks! I think there is no need for the NCSG comment anymore. The issue
is resolved.
Cheers
Tanya
On 13/07/16 18:14, matthew shears wrote:
>
> 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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