[CCWG-ACCT] Suggested text for designaor model

[Izumi Okutani]

Sure, that makes sense Greg.

The current suggested text is below. 

"Designators are a construct in California law that can achieve reliable enforcement of 4 of the 6 community powers sought, specifically with respect to community approval or blocking of changes of bylaws and the selection and removal of board members.  There is concern however, regarding the ease and reliability with which the other 2 community powers sought (approval of budget and strategic plan) can be enforced once created under the designator model, according to legal counsel.  Legal counsel further advises that the SOs and ACs organize themselves into unincorporated associations in both corporate governance models, whether a designator or membership structure."

Izumi

On 2015/04/29 14:14, Greg Shatan wrote:
> 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
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>> Accountability-Cross-Community mailing list
>> Accountability-Cross-Community at icann.org
>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>
>