[CCWG-ACCT] [Acct-Legal] Fwd: Legal question

Tue Apr 21 15:35:27 UTC 2015

I might be wrong, but I think Chris is expecting something more like:

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?
YES
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?
YES
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?
YES
4. Is it correct that a Board spill bylaw could be inserted in to the bylaws and if triggered would be enforceable?
YES

Caveat: I am not in any way knowledgeable on this matter, so where I write “YES”, the right answer might be “NO”, where I write “NO”, the correct answer might be “YES”

Best,

Roelof

From: List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5 at icann.org<mailto:ccwg-accountability5 at icann.org>>
Reply-To: "ccwg-accountability5 at icann.org<mailto:ccwg-accountability5 at icann.org>" <ccwg-accountability5 at icann.org<mailto:ccwg-accountability5 at icann.org>>
Date: dinsdag 21 april 2015 08:02
To: Chris Disspain <ceo at auda.org.au<mailto:ceo at auda.org.au>>
Cc: "ccwg-accountability5 at icann.org<mailto:ccwg-accountability5 at icann.org>" <ccwg-accountability5 at icann.org<mailto:ccwg-accountability5 at icann.org>>, Accountability Cross Community <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Subject: Re: [Acct-Legal] [CCWG-ACCT] Fwd: Legal question

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<mailto: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<mailto: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<mailto: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<mailto: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<mailto: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<mailto: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<mailto:ccwg-accountability5 at icann.org>" <ccwg-accountability5 at icann.org<mailto: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<mailto:ccwg-accountability5 at icann.org>>
Asunto: [Acct-Legal] (no subject)
Responder a: ccwg-accountability5 at icann.org<mailto: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<tel:%2B1.212.839.5853>
holly.gregory at sidley.com<mailto:holly.gregory at sidley.com>

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<Legal Assessment_  Governance Chart.pdf>
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