[CCWG-ACCT] Notes-Recordings-Transcript links for LEGAL SubTeam Meeting #13 - 23 April

Brenda Brewer brenda.brewer at icann.org
Fri Apr 24 00:53:25 UTC 2015

Dear all, 


The notes, recordings and transcripts for the Accountability LEGAL SubTeam Meeting #13 - 23 April
will be available here:   https://community.icann.org/pages/viewpage.action?pageId=52897284


A copy of the notes from the session may be found below. 



Best regards


Action Items:  none 


These high-level notes are designed to help you navigate through content of the call and do not
substitute in any way the transcript.


Leon: Will work through the questions with the legal advisors.

Voting threshold and super majorities.  Can open the door to a tyranny of the masses.  Where a small
group can block and issues.

Supermajority typically 66%.  Get to 75% and can open the way to some blocking. Might reach that
level for constitutional (type) decisions, but do run a risk.  Need to do math to see what the
risks might be.  And might be in the Articles rather than the bylaws.  Need to figure that out.

Care with abstentions.  If too many abstain then the decision can be made by a very small group

If there is concern about a group like the GAC then they might continue as now without voting

If GAC. for example, made as a member of the organization there is some risk that someone may come
to dominate the GAC and therefore capture the process.

Q. Caretaker board in the event of removal of the whole board.  Can a caretaker board be implemented
and how implemented.

Need a simultaneous mechanism to put a board in place,  There are ways to hold a board on place, but
they are likely to quit.  Can put people in as placeholders, knowing you will run a
selection process later.  This caretaker board has all the powers of the board, they are caretaker
in name only.   Removal of a whole board is unusual, and need to think about how under 
CA law and other jurisdictions, needs research and not an immediate response. Good news is CA law
allows flexibility in how to address this. 

Can it be installed so it allow an uninterrupted operation of ICANN? Some certainty would be helpful
when proposing this community power.

Q. Can the SO/AC form unincorporated associations, while maintaining their current status in ICANN?

A. Yes.

And already much of what's needed is in the bylaws.  All advice suggests is needed is a simple
article of incorporation that write in the sections from the ICANN bylaws, and they claim status 
associated.  And the SO/AC can continue as they had before.  And as a member they could then
exercise certain legal rights.

They wouldn't have assets and no actives per se.  The activities would still occur in the ICANN
corporation, and these parallel structures would hold the contract rights, etc.

Q. Are there any liabilities associated with unincorporated association over and above what we have

Individual members would not be liable (legal advice currently considers), they would be members of
the association.   The designators and member organizations are taking specific actions, the
members are not.  Legal advice is that the liability issue is not a concern.

Q. Currently the Board controls many of the features of the various SOAc and of their subcomponents.
Would that still be the case as unincorporated associations can rely on ICANN board governance 

It depends on ICANN board governance.  And thinking through how the new parallel structure might
look like.  Current arrangements may not change

Q. Can the SO/AC be dissolved?

It will be protected by the new powers, and it can still dissolve itself.  Can have provisions on
the bylaws about the membership that the board couldn't change, but the members could.  
There are some easy to fix concerns.  

International concerns and unincorporated associations.  SO/AC, to want them not to be
unincorporated does leave them open to liability as you enhance community powers.  And the use of 
unincorporated associations does give additional protections. The bylaws drafted in a way, to
provide that ICANN would be indemnifying the organizations, or the individuals acting for 
the organizations.  Working to ensure there would be no greater liability than community has today

Q. If SO/AC remove their directors, then NomCom would remove theirs, and this goes to the issue of
the NomCom's independence.

Pre-appointment letter would probably work for NomCom.

Community vote: the vote is through the designators or members. 

Comment: The NonCom doesn¹t need to become an unincorporated association to create and
unincorporated association.  This would be an alter-ego for the NomCom. 

Deliverables.  Questions as presented during the call.  1, 3, and 4 addressed.  Q 2, counsel need
more time to look into, but short answer is the caretaker board can be implemented.  And the rest of
the questions will be addressed.  Short answers for each.




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