[CCWG-ACCT] Fwd: [Acct-Legal] Sidley Austin/Adler & Colvin Response to the CCWG WP2 Templates

Malcolm Hutty malcolm at linx.net
Tue Apr 21 10:10:37 UTC 2015

On 21/04/2015 08:34, León Felipe Sánchez Ambía wrote:
> Dear all,
> I am forwarding the document prepared by Counsel on WP2 templates. 

Thank you. Reading this document, I wonder how well Counsel have
understood the issues WP2 is seeking to address with its proposals.

Counsel states:

"The risk that the board would reject even advisory IRP decisions can be
minimized through other accountability mechanisms. The threat of board
recall is present in either member or designator models. Indeed, the
board would have strong incentives not to lightly reject decisions of
the IRP, just as members/designators would have strong incentives not to
lightly recall the board."

and later

"Nevertheless, the ability to recall the board would
indirectly provide great incentives for IRP decisions to be honored
and ratified."

This betrays a clear failure to understand that IRP as proposed is being
provided not only for the benefit of ICANN community structures - which
participate in the decision to recall the Board - but also for the
benefit of individual entities and third parties, who may not.

In the case of an IRP challenge where an individual company claimed that
ICANN had breached its bylaws or was acting beyond its authorised scope,
it is entirely plausible that the ICANN community structures would be
cheering the Board on: indeed, the Board's alleged transgression may
well have come about as a direct result of community consensus policy.
We are proposing a binding IRP to control ICANN; not only to protect the
community from the Board, but also to protect individual entities from
inappropriate behaviour by the ICANN community.

In such circumstances, the affected individual entity can have little
hope that the community would sack the Board for refusing to reverse a
decision that the community structures instigated and support.

Counsel's advice demonstrates that they have not understood this
important part of our objectives, which rather undermines the
credibility of their suggestions as to what may be satisfactory or

            Malcolm Hutty | tel: +44 20 7645 3523
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