[CCWG-ACCT] Suggested text for designaor model

[Greg Shatan]

I am forwarding this email into the Legal Subteam for discussion and
possible referral to counsel.

In the "suggested text," which I've pasted in below, I believe the text
that I have highlighted and bolded is contrary to the advice we have
received from Sidley/Adler and in some cases may inadvertently misstate
that advice.  Rather than pick it apart here, I think it makes more sense
to discuss this with Sidley/Adler and then bring it back to the full list
or the next full meeting if need be.

Greg

SUGGESTED TEXT

f) Designators are a construct in California law that can achieve some of
the powers proposed below - *As ICANN's SOs/ACs struture is consistent with
this model,* "the selection and removal of Board members" and "the approval
or blocking of changes to bylaws" can be achieved by changing the ByLaws to
define the role of SOs/ACs as designators,* without the need to organise
unincorporated association. *But they cannot reliably deliver other aspects
of the set of powers the CCWG believes the community needs, *such as
statutory power for full board dismissal* and ability to have legal
standing in court for enforcement of rights, if it is to fully hold ICANN
to account.
Crucially, in the view of our counsel, *to have dismissal of the entire
board and for legal enforcement of rights in court, **would require some
additional contractual relationships between SOs/ACs and ICANN, which would
also oblige SOs and ACs to establish themselves into unincorporated
associations,* so some of the perceived simplicity compared with the
membership model isn't actually achievable.



On Tue, Apr 28, 2015 at 4:13 PM, Izumi Okutani <izumi at nic.ad.jp> wrote:

> Dear all,
>
>
> As mentioned at the # 30 CCWG call, I'd like to suggest text changes for
> 6.6.1.1 f).
>
>
> 6.6.1.1 The Community Mechanism: Reference
> Mechanism
>
> CURRENT TEXT
> Designators are a construct in California law that can achieve some of the
> powers proposed below ‐
> mainly those regarding the selection and removal of Board members and the
> approval or blocking of
> changes to bylaws. But they cannot reliably deliver other aspects of the
> set of powers the CCWG
> believes the community needs, if it is to fully hold ICANN to account.
> Crucially, in the view of our
> counsel, this would also oblige the SOs and ACs to organise themselves
> into unincorporated
> associations ‐ and so some perceived simplicity compared with the
> membership model isn’t actually
> possible.
>
> SUGGESTED TEXT
>
> f) Designators are a construct in California law that can achieve some of
> the powers proposed below - As ICANN's SOs/ACs struture is consistent with
> this model, "the selection and removal of Board members" and "the
> approval or blocking of changes to bylaws" can be achieved by changing the
> ByLaws to define the role of SOs/ACs as designators, without the need to
> organise unincorporated association. But they cannot reliably deliver other
> aspects of the set of powers the CCWG believes the community needs, such as
> statutory power for full board dismissal and ability to have legal standing
> in court for enforcement of rights, if it is to fully hold ICANN to account.
> Crucially, in the view of our counsel, to have dismissal of the entire
> board and for legal enforcement of rights in court, would require some
> additional contractual relationships between SOs/ACs and ICANN, which would
> also oblige SOs and ACs to establish themselves into unincorporated
> associations, so some of the perceived simplicity compared with the
> membership model isn't actually achievable.
>
>
> Izumi
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
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