[CCWG-ACCT] Legal question
Seun Ojedeji
seun.ojedeji at gmail.com
Tue Apr 21 10:39:57 UTC 2015
Keith wrote:
"In simple terms, I agree that determining what can and cannot be
accomplished within the existing structure is a worthwhile exercise and
will help to inform the community"
SO: I agree with the statement above as well and I think it's something
that should not take much legal hours to review. I will like to recall the
legal advice document shared by ARIN which seem to rely a lot on existing
structures, perhaps we need to have a second look at that.
Cheers!
sent from Google nexus 4
kindly excuse brevity and typos.
On 21 Apr 2015 11:16, "Drazek, Keith" <kdrazek at verisign.com> wrote:
> Thanks Chris, no apologies necessary...this is exactly the kind of
> dialogue needed to advance our work.
>
> Can you be more explicit about the "significant number of sacrifices
> that would need to be made in a membership scenario" that ccTLDs face?
> Particularly if any are unique to ccTLDs?
>
> Sacrifices may be needed (including from the Board) if we are to
> accomplish the community's broader goal of ensuring the ICANN Board and
> Staff are truly accountable to the ICANN community for the next decade. As
> such, it would be good to know, as early as possible, what those sacrifices
> might be.
>
> In simple terms, I agree that determining what can and cannot be
> accomplished within the existing structure is a worthwhile exercise and
> will help to inform the community.
>
> Based on our work and the relevant independent legal analysis to date,
> it appears to me that the current construct has significant gaps and
> shortcomings and won't deliver on our goals, but I support seeking further
> advice on the topic from our independent legal advisors.
>
> Thanks and regards,
> Keith
>
> On Apr 21, 2015, at 5:08 AM, Chris Disspain <ceo at auda.org.au> wrote:
>
> Thanks Keith.
>
> I apologise for pinging back and forth on this but I hope the list will
> appreciate that it as an indication of how important auDA believes this
> point is.
>
> As I said on the CCWG call last week, I have serious concerns about the
> viability of the lawyers' recommended structural changes (at least from a
> cc point of view) and want to be crystal clear about what we can do or
> cannot do within the current structure.
>
> For a ccTLD there are a significant number of sacrifices that would need
> to be made in a membership scenario and I don't believe the cc community
> can decide whether those sacrifices are worth making unless we can weigh
> them against what we would be able to achieve using the current structure.
>
> I think that is essential that our output to the community contains a
> clear explanation of what the status quo can achieve. If it does not then
> IMO it is impossible to judge the other scenarios.
>
> I appreciate your second para and, as a lawyer, I know that time for a
> response is required. I also appreciate the time constraints under which we
> are operating. But we will lose more time if the result of our document is
> a series of questions about whether there really is a need to make the
> significant changes being recommended.
>
> In simple terms 'not nearly enough' is not an acceptable response. How
> can I know that "it" is not nearly enough unless I know what "it" is?
>
> Chris Disspain
> CEO - auDA
>
> On 21 Apr 2015, at 18:37, Drazek, Keith <kdrazek at verisign.com> wrote:
>
>
> Chris,
>
> I believe the answer to your question regarding the "no change scenario"
> and "what the current configuration can achieve" is, "Not nearly enough."
>
> That said, I think it's a reasonable question and it should be referred
> to the CCWG's lawyers and they should be permitted reasonable time to
> consider and respond.
>
> Regards,
> Keith
>
>
>
> Sent from my iPhone
>
> On Apr 21, 2015, at 4:09 AM, Chris Disspain <ceo at auda.org.au> wrote:
>
> Greg,
>
> Thanks. At the risk of repeating myself, whilst I understand what you
> are saying, it is precisely the no change scenario that I am seeking
> clarity on. I accept that the current configuration may not be "a very good
> vehicle for many of the enhanced powers" but I want clarity on what the
> current configuration CAN achieve. I don't believe we have that yet.
>
> Chris Disspain
> CEO - auDA
>
> On 21 Apr 2015, at 17:35, Greg Shatan <gregshatanipc at gmail.com> wrote:
>
> Chris,
>
> The simple answer is that the SOACs as currently configured are not
> a very good vehicle for many of the enhanced powers we seek. Once you make
> them into members and give them legal personhood everything else becomes
> much easier.
>
> However, you assumed no change to the SOACs, which made the answers much
> harder.
>
> Greg
>
> On Tuesday, April 21, 2015, Chris Disspain <ceo at auda.org.au> wrote:
>
>> Greg, All,
>>
>> With respect, I think we are overcomplicating the issue. I simply want
>> to gain a base line for the discussion about any changes necessary to
>> achieve what we want. We agreed on jurisdiction that if we can get
>> acceptable escalations and remedies without changing jurisdiction then we
>> should leave well alone for now, I think we should apply the same principle
>> here. I am clear what the lawyers recommend we do BUT I am not clear about
>> what we can do or what compromises we need to make if we were to maintain
>> the current structure. I think that is a key part of our deliberations.
>>
>>
>>
>> Cheers,
>>
>>
>> Chris
>>
>> On 21 Apr 2015, at 16:59 , Greg Shatan <gregshatanipc at gmail.com> wrote:
>>
>> Kavouss,
>>
>> That is not a correct summary of my views. Bylaws provisions are
>> generally enforceable. (As an aside, "enforceable" can be use to mean two
>> different things: (1) is the provision valid, so that an enforcement effort
>> will not fail, and (2) can the other party or parties undertake an effort
>> to enforce the provision by commencing litigation. I have tried to deal
>> with both aspects of "enforceability," without veering too far into other
>> ways of getting ones way (e.g., California AG, political pressure,
>> Congressional investigation, pulling out and creating an alternate IANA,
>> etc.)
>>
>> In spite of the general rule, there are two issues in this specific
>> circumstance that undercut this general rule of enforceability. First, a
>> couple of the specific powers that Chris mentions are ones where a third
>> party is given a right superior the Board to make a decision regarding the
>> management of the company (veto of budget and arbitration to enforce the
>> veto of budget). In a member organization, the members can appropriately
>> be in this superior position. In a non-member organization, that is
>> inconsistent with the role of the Board, which brings the validity of these
>> bylaw changes as hypothesized by Chris into question. Second, the SO/ACs,
>> as entities currently without legal personhood, would likely not be able to
>> participate in a litigation to enforce these bylaws; thus, the second type
>> of enforceability is also an issue.
>>
>> It may be less troublesome for ICANN to enter into contracts and agree
>> with third parties (i.e., the SO/ACs) that these third parties have the
>> right to veto the budget. (Companies may be able to agree with third
>> parties to do things that could not be part of their internal governance
>> schema.) However, on further reflection, even this approach has its issues
>> -- as the SO/ACs lack legal personhood currently, they cannot enter into
>> contracts, either. (By contrast, the bylaws changes can at least be put
>> into place without any action on the SO/AC's part.)
>>
>> I should note that granting third parties the right to approve a bylaw
>> change (the third hypothetical action in Chris's email) is not as
>> exceptional, so is less likely to raise validity concerns. This still
>> leaves the issue that the SO/AC's lack the requisite legal existence to
>> commence legal action to enforce a bylaws change in the event the Board
>> fails to recognize such a bylaws change.
>>
>> In my opinion this kind of complexity and uncertainty is precisely why
>> the member model should be adopted.
>>
>> Greg
>>
>> On Tue, Apr 21, 2015 at 2:25 AM, Kavouss Arasteh <
>> kavouss.arasteh at gmail.com> wrote:
>>
>>> Dear All
>>> We complicating the case by envisaging the most extreme exceptional
>>> circumstances.
>>> In view of Greg, a Contract provisions are enforceable compared to
>>> Bylaws provisions which in his views are not enforceable!
>>> We may put the questions and answers to the lawyers and wait whether are
>>> consent?
>>> Could someone take necessary action ( e. g.) co chair in this regard?
>>> Tks
>>> Kavousd
>>>
>>>
>>> Sent from my iPhone
>>>
>>> On 21 Apr 2015, at 08:02, Greg Shatan <gregshatanipc at gmail.com> wrote:
>>>
>>> The questions are simple. The answers may not be....
>>>
>>> Also, it depends on what the lawyers are currently working on.
>>> Further, the meeting is in about 13 hours, and I expect (given the time)
>>> at least 6-8 of those hours will be used for sleep and commuting. So, it's
>>> not a lot of time.
>>>
>>> My views are as follows:
>>>
>>> On question 1, I think there may be issues in granting this right via
>>> bylaw, except to statutory members (and possibly to designators, at least
>>> where formally denoted as such), but these many not sufficient issues to
>>> cause the bylaw to be invalid. If it's found to be invalid in court, then
>>> it would be unenforceable. However, I believe that something similar could
>>> be achieved by contract, which should then be enforceable.
>>>
>>> On question 2, I would say that the Board cannot ignore an action
>>> mandated by the bylaws without some consequences. The SOs and ACs as
>>> currently constituted may not have the necessary legal personhood to pursue
>>> litigation. However, this could be reported to the California Attorney
>>> General, who has broad oversight powers relating to non-profits, and would
>>> probably be quite interested to hear about a relatively high-profile
>>> non-profit where the Board was ignoring actions mandated by duly approved
>>> bylaws. This could certainly be considered "enforcement," broadly
>>> speaking. There may also be other parties with legal personhood that could
>>> pursue litigation, and other governmental entities (Congress?) that could
>>> make this an exceedingly difficult choice to sustain.
>>>
>>> On 3, if the bylaw says the Board is bound, they're bound, unless the
>>> Board were to successfully challenge the validity of the bylaw. Again, it
>>> may be possible to achieve this by contract, with fewer questions raised.
>>> And again, there may be issues in granting this right to parties other than
>>> members (or possibly formally recognized designators), but those issues may
>>> not invalidate the bylaw.
>>>
>>> On 4, I think the answers to question 2 apply here as well.
>>>
>>> We can see if counsel agrees with this....
>>>
>>> Greg
>>> Caveat: not legal advice, not admitted in California
>>>
>>> On Tue, Apr 21, 2015 at 12:55 AM, Chris Disspain <ceo at auda.org.au>
>>> wrote:
>>>
>>>> Hi León,
>>>>
>>>> Really? They are fairly simple questions. As I said, I can ask them
>>>> on the call.
>>>>
>>>>
>>>>
>>>>
>>>> Cheers,
>>>>
>>>>
>>>> Chris
>>>>
>>>> On 21 Apr 2015, at 14:32 , León Felipe Sánchez Ambía <
>>>> leonfelipe at sanchez.mx> wrote:
>>>>
>>>> Thanks Greg,
>>>>
>>>> I just want to note that for the short notice it is unlikely we will
>>>> be able to have answers to feed the discussion in our call tomorrow.
>>>>
>>>>
>>>> Best regards,
>>>>
>>>>
>>>> León
>>>>
>>>> El 20/04/2015, a las 23:22, List for the work of CCWG-Accountability
>>>> Legal SubTeam <ccwg-accountability5 at icann.org> escribió:
>>>>
>>>> I am forwarding Chris Disspain's email into the Legal Sub Team for
>>>> further consideration. I will let our counsels respond, should the Legal
>>>> Sub Team's discussion result in a referral of the questions to counsel.
>>>>
>>>>
>>>> Greg Shatan
>>>>
>>>> ---------- Forwarded message ----------
>>>> From: Chris Disspain <ceo at auda.org.au>
>>>> Date: Tue, Apr 21, 2015 at 12:03 AM
>>>> Subject: [CCWG-ACCT] Legal question
>>>> To: Accountability Cross Community <
>>>> accountability-cross-community at icann.org>
>>>>
>>>>
>>>> Hello All,
>>>>
>>>> I’m not sure if this email should be addressed to the whole group,
>>>> the legal sub-team or some other. Anyway, I have some questions that I
>>>> would appreciate answers to from the CCWG’s lawyers. Happy to discuss on
>>>> the upcoming CCWG call.
>>>>
>>>> Under the current structure of ICANN and its SOs and ACs
>>>>
>>>> 1. Is it correct that a bylaw saying that a combination of those SOs
>>>> and ACs can veto the budget or veto a bylaw change can be drafted and put
>>>> in to the bylaws?
>>>>
>>>> 2. Is it correct that were there to be such a bylaw and the SOs and
>>>> ACs were to veto the budget or a bylaw change pursuant to that bylaw then
>>>> the Board of ICANN could ignore that veto and that the SOs and ACs could
>>>> not enforce the veto?
>>>>
>>>> 3. Is it correct that the veto bylaw could be drafted to require
>>>> binding arbitration in the event that the Board refused to follow the SO/AC
>>>> veto and if so would the Board be bound by the arbitration finding?
>>>>
>>>> 4. Is it correct that a Board spill bylaw could be inserted in to the
>>>> bylaws and if triggered would be enforceable?
>>>>
>>>>
>>>>
>>>> Cheers,
>>>>
>>>>
>>>> Chris
>>>>
>>>> On 18 Apr 2015, at 14:50 , León Felipe Sánchez Ambía <
>>>> leonfelipe at sanchez.mx> wrote:
>>>>
>>>> All,
>>>>
>>>> I am forwarding this document from Counsel for your records and for
>>>> its relevance for our overall work.
>>>>
>>>>
>>>> Best regards,
>>>>
>>>>
>>>> León
>>>>
>>>> Inicio del mensaje reenviado:
>>>>
>>>> *Para: *"ccwg-accountability5 at icann.org" <
>>>> ccwg-accountability5 at icann.org>
>>>> *Fecha: *17 de abril de 2015 22:21:36 GMT-5
>>>> *De: *List for the work of CCWG-Accountability Legal SubTeam <
>>>> ccwg-accountability5 at icann.org>
>>>> *Asunto: **[Acct-Legal] (no subject)*
>>>> *Responder a: *ccwg-accountability5 at icann.org
>>>>
>>>>
>>>>
>>>> Dear Legal Sub-Team, Attached please find revisions to the chart
>>>> comparing the member and designator approaches from Sidley and Adler &
>>>> Colvin as requested. Please note that in our cover memo we have posed
>>>> several questions for your consideration. We have also provided a
>>>> discussion of some considerations regarding implementation of both
>>>> approaches. We are look forward to discussing with CCWG next week. Kind
>>>> regards, Holly
>>>>
>>>> *HOLLY J. GREGORY*
>>>>
>>>> * Partner *
>>>> *Sidley Austin LLP*
>>>> +1.212.839.5853
>>>> holly.gregory at sidley.com
>>>>
>>>>
>>>>
>>>>
>>>>
>>>> ****************************************************************************************************
>>>> This e-mail is sent by a law firm and may contain information that is
>>>> privileged or confidential.
>>>> If you are not the intended recipient, please delete the e-mail and any
>>>> attachments and notify us
>>>> immediately.
>>>>
>>>>
>>>> ****************************************************************************************************
>>>>
>>>> <Legal Assessment_ Governance Chart.pdf>
>>>>
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