[CCWG-ACCT] Fwd: [Acct-Legal] Proposed agenda for tomorrow's call

Wed Apr 22 08:25:04 UTC 2015

Leon,
I wish to attend your meeting
May you include me my dial up would be 0041 79 325 65 34 .
ADOBE CONNECTION
DOCS.
I have ICG call between 13, 15, UTC
Rergards
Kavouss

2015-04-22 8:07 GMT+02:00 León Felipe Sánchez Ambía <leonfelipe at sanchez.mx>:

> Dear all,
>
> I am forwarding the answers provided by counsel to the questions raised by
> Chris Disspain.
>
> Interesting situations.
>
> Best regards
>
> León
>
> Enviado desde mi iPhone
>
> Inicio del mensaje reenviado:
>
> *De:* List for the work of CCWG-Accountability Legal SubTeam <
> ccwg-accountability5 at icann.org>
> *Fecha:* 21 de abril de 2015, 10:59:52 PM CDT
> *Para:* "ccwg-accountability5 at icann.org" <ccwg-accountability5 at icann.org>
> *Cc:* ACCT-Staff <acct-staff at icann.org>
> *Asunto:* *Re: [Acct-Legal] Proposed agenda for tomorrow's call*
> *Responder a:* ccwg-accountability5 at icann.org
>
>  Thank you Leon for sharing the agenda for the Legal Sub-Team call
> tomorrow.  Below you will find responses to the four questions posed by
> Chris Disspain.  For convenience, we have interlineated our responses
> following each question, and although the email comes from Sidley we have
> reviewed with Adler & Colvin as well.
>
>
>
>  =====================================================================
>
>
>
> 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?
>
> *Under the current structure of ICANN and its SOs and ACs, no, not in a
> way that is enforceable.  However:*
>
>    - *As to the budget, in a membership model, a bylaw could be drafted
>    granting SOs and ACs the ability to veto the budget.  In a designator
>    model, this ability is unclear as there is not an established corporate law
>    basis for it.  These issues are addressed in (1) the Sidley Austin and
>    Adler & Colvin April 10, 2015 memo (Link
>    <https://community.icann.org/download/attachments/52890082/Combined%20CCWG%20Cover%20Memo%20and%20Templates.pdf?version=3&modificationDate=1428797461000&api=v2>)
>    and the “Legal Analysis and Viability” sections of templates WP1-C and
>    WP-1F attached thereto, and (2) Sections 5 and 6 of the Sidley Austin and
>    Adler & Colvin April 17, 2015 Revised Governance Chart (Link
>    <https://community.icann.org/download/attachments/52890082/Legal%20Assessment_%20%20Governance%20Chart.pdf?version=2&modificationDate=1429519899000&api=v2>).*
>    - *As to a bylaw change, under both a membership model and a
>    designator model, a bylaw could be drafted granting SOs and ACs  the right
>    to veto bylaw changes.  This is addressed in (1) the Sidley Austin and
>    Adler & Colvin April 10, 2015 memo (Link
>    <https://community.icann.org/download/attachments/52890082/Combined%20CCWG%20Cover%20Memo%20and%20Templates.pdf?version=3&modificationDate=1428797461000&api=v2>)
>    and the “Legal Analysis and Viability” sections of templates WP-1A and
>    WP1-5B-2 attached thereto, and (2) Sections 3 and 4 of the Sidley Austin
>    and Adler & Colvin April 17, 2015 Revised Governance Chart (Link
>    <https://community.icann.org/download/attachments/52890082/Legal%20Assessment_%20%20Governance%20Chart.pdf?version=2&modificationDate=1429519899000&api=v2>).*
>
> 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?
>
>    - *First, for an SO or an AC to be able to enforce any right vis-a-vis
>    ICANN, it would need to be organized as a legal person (such as an
>    unincorporated association).  Thus, under the current structure of ICANN
>    and its SOs and ACs, the SOs or ACs could not enforce the veto right as
>    they are not currently legal persons.  However, in a membership model, a
>    bylaw granting the SOs and ACs a right to veto the budget would generally
>    be enforceable.  In a designator model, this enforceability is unclear as
>    there is not an established corporate law basis for it. These issues are
>    addressed in (1) the Sidley Austin and Adler & Colvin April 10, 2015 memo
>    (Link
>    <https://community.icann.org/download/attachments/52890082/Combined%20CCWG%20Cover%20Memo%20and%20Templates.pdf?version=3&modificationDate=1428797461000&api=v2>)
>    and the “Legal Analysis and Viability” sections of templates WP1-C and
>    WP-1F attached thereto, and (2) Sections 5 and 6 of the Sidley Austin and
>    Adler & Colvin April 17, 2015 Revised Governance Chart (Link
>    <https://community.icann.org/download/attachments/52890082/Legal%20Assessment_%20%20Governance%20Chart.pdf?version=2&modificationDate=1429519899000&api=v2>).*
>    - *A right provided by a bylaw to the SOs and ACs to veto a bylaw
>    change would (subject to the legal personhood requirement stated above)
>    generally be enforceable.  These issues are addressed in (1) the Sidley
>    Austin and Adler & Colvin April 10, 2015 memo (Link
>    <https://community.icann.org/download/attachments/52890082/Combined%20CCWG%20Cover%20Memo%20and%20Templates.pdf?version=3&modificationDate=1428797461000&api=v2>)
>    and the “Legal Analysis and Viability” sections of templates WP-1A and
>    WP1-5B-2 attached thereto, and (2) Sections 3 and 4 of the Sidley Austin
>    and Adler & Colvin April 17, 2015 Revised Governance Chart (Link
>    <https://community.icann.org/download/attachments/52890082/Legal%20Assessment_%20%20Governance%20Chart.pdf?version=2&modificationDate=1429519899000&api=v2>).*
>
> 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?
>
> *Under the current structure of ICANN and its SOs and ACs, no, not in a
> way that is enforceable.  However:*
>
>    - *In a membership model, binding arbitration could be implemented in
>    the bylaws or by agreements with the members, and the Board would generally
>    be bound by the finding, provided the right to veto was reserved to the
>    members in the articles or bylaws.  *
>    - *In a designator model, binding arbitration could be implemented for
>    bylaw changes where approval was reserved to the designators, but the
>    enforceability of a right to veto the budget would be questionable and the
>    arbitration finding would generally be considered advisory rather than
>    binding.  These issues are addressed in Annex A to the Sidley Austin and
>    Adler & Colvin April 20, 2015 memorandum (Link
>    <https://community.icann.org/download/attachments/52890082/21April%20Legal%20Assessment_%20Proposed%20Accountability%20Mechanisms%20Preliminary%20Respons....pdf?version=1&modificationDate=1429608951023&api=v2>)
>    and in the “Legal Analysis and Viability” section of the Independent Review
>    Panel template included in Annex B thereto.*
>
> 4. Is it correct that a Board spill bylaw could be inserted in to the
> bylaws and if triggered would be enforceable?
>
> *Under the current structure of ICANN and its SOs and ACs, no, not in a
> way that is enforceable.  However, under either a member or a designator
> model, a procedure could be inserted into the bylaws to provide for a
> no-confidence vote.  The members or designators would then enter into a
> contract whereby the members or designators agree to remove their
> respective directors upon the occurrence of the no-confidence vote.
> Another mechanism could be a “springing resignation” signed by each
> director on assuming office that automatically takes effect upon a
> no-confidence vote.  These issues are addressed in (1) the Sidley Austin
> and Adler & Colvin April 10, 2015 memo (Link
> <https://community.icann.org/download/attachments/52890082/Combined%20CCWG%20Cover%20Memo%20and%20Templates.pdf?version=3&modificationDate=1428797461000&api=v2>)
> and the “Legal Analysis and Viability” section of template WP1-7A attached
> thereto, and (2) Section 1 of the Sidley Austin and Adler & Colvin April
> 17, 2015 Revised Governance Chart (Link
> <https://community.icann.org/download/attachments/52890082/Legal%20Assessment_%20%20Governance%20Chart.pdf?version=2&modificationDate=1429519899000&api=v2>).*
>
>
>
> Cheers,
>
> Josh
>
> *JOSHUA*
> *HOFHEIMER Partner*
>
> Sidley Austin LLP
> +1.213.896.6061 (LA direct)
> +1.650.565.7561 (PA direct)
> +1.323.708.2405 (cell)
> jhofheimer at sidley.com
> www.sidley.com
>
> [image: http://www.sidley.com/files/upload/signatures/SA-autosig.png]
> <http://www.sidley.com/> *SIDLEY AUSTIN LLP*
>
>
>
>
>
> *From:* ccwg-accountability5-bounces at icann.org [
> mailto:ccwg-accountability5-bounces at icann.org
> <ccwg-accountability5-bounces at icann.org>] *On Behalf Of *List for the
> work of CCWG-Accountability Legal SubTeam
> *Sent:* Tuesday, April 21, 2015 8:35 PM
> *To:* ccwg-accountability5 at icann.org
> *Cc:* ACCT-Staff
> *Subject:* [Acct-Legal] Proposed agenda for tomorrow's call
>
>
>
> Dear team,
>
>
>
> Attached you will find the proposed agenda for our tomorrow’s call. As
> usual, this is just a proposal that welcomes any addition or modification
> you consider pertinent.
>
>
>
> Attached also the documents for discussion. As for the questions raised by
> Chris Disspain, I paste them here:
>
>
>
> 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?
>
>
>
> Staff, I kindly ask you to please have the documents ready for display in
> the AC room.
>
>
>
> Looking forward to our call tomorrow.
>
>
>
> Best regards,
>
>
>
>
>
> Best regards,
>
>
>
>
>
> León
>
>
>
>
>
>
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