[CCWG-ACCT] Notes-Recordings-Transcript links for Legal Subteam Meeting #14 29 April

Brenda Brewer brenda.brewer at icann.org
Thu Apr 30 12:15:29 UTC 2015


Dear All, 


The notes, recordings and transcripts for the Legal Subteam #14  - 29 April will be available here:


Action Items

Action: Leon, check if Sam's questions answered by counsel.

Action:  check reference mechanism is defined in the document

Action: Robin and Greg draft text on these clarifications, to provide suggested wording. 



1. Welcome and roll call

Roll call:

Sam Eisner on the phone

2. Discussion on suggested text by Robin and Izumi on point 6.6.1.

Comments from Jordan on

Jordan's text.  point 4.  Legal advisors.  No increase in risk ICANN participants face

Q. What are the risks.  and are participants covered.  Becoming a UA may highlight those risks.
What are they? Raise when Counsel present in second part of the call

For discussion with counsel, review now so we can ask more specific questions/examples.

Concern about financial risk, legal risks and liabilities, but also need to think about the internal
risks to ICANN.

examples of the internal risks: relationships between the groups, how the switch to member model
impacts that.  Member statues and his they work.  Individual members are granted rights under the
statue that are hard to modify.  And we have the community consensus based actions, and there are
other rights that are not limited by community actions.  Some unintended rights. And request more
information from Counsel.

Support for Jordan's draft.   Izumi agreeing to the text.  

Does what we have proposed reflect their advice?  And does it reflect the strength of their advice?

Reference model/mechanism.  has it been defined in the report.  Our primary model in the proposal.  

Action:  check reference mechanism is defined in the document

Designator model, and the powers regarding budget and strategic plan.  Received advice that would
have problem delivering these two powers

Enforce has some ambiguity in the document. Some refer to is it valid, and some whether can cause a
change a control. Some varied use of the word enforcement throughout the document.  

Legal counsel again and again say it is the enforceability of these two issues that is causing us to
accept the member model.  Member model because this is how we enforces these two issues.  

Action: Robin and Greg draft text on these clarifications, to provide suggested wording. 

And input from counsel first.  Including on the meaning of enforceability. 

Status quo.  Some may argue that it is a designator model.  If discuss why the status quo why not
preferable to an explicit designator model or member model.  And why.  Explaining that they can take
on some of the attributes of the designator model.  Explain to the community why we made these
decisions we did, bring them along so that if they follow our line of agreements they end up with
the same conclusions.

Some duplication about NTIA, from paras 2 or 8.  And leave the rest in to explain our rationale. 

3. Review of questions pending answers

Pedro, Jorge's questions are pending.  Sam's questions:  will check that the answers received. 

Action: Leon, check if Sam's questions answered by counsel.

Eberhard Lisse's questions about the legal basis for the USG claim on the root.  Was reviewed by the
sub-team on a call of April 8.  And not considered on topic.  Since on the list, Becky Burr has
given a comprehensive answer.  Leon, speaking as a member to chair, said he feels out of scope.  Do
people have comments? 

Out of scope.  Does not affect ICANN accountability.  And likely not germain to CWG.  Out of scope
for the expertise of the legal counsel engaged.  A distinguished panel might be able to inform, for
example Milton Mueller.  But this beyond the scope

Unfortunate that Dr. Lisse has not been able to join the call to explain why the question is
fundamental and in scope.  His comments would have been very welcome. 

To bring to a close, suggestion for a definitive conclusion on the record as a decision of the legal

Is this out of scope for the CCWG.  Please signal with a green tick.  

Decision: the group indicates out of scope.

4. Discussion on implementation of the CCWG draft report

Any comments wrt to the general CCWG report and legal issues?

5. Discussion on overall draft document for public comment

Confirmation - can we have SO and AC and the NomCom as unincorporated with different powers,
including as zero votes.? 

6. Discussion with lawyers 

Para 7 of the document (from Jordan) in the AC room.  The level of certainty around the powers
designators can have and can they be enforced.  And do we currently have a designator system?  Do we
need to take on UA which take on some of the characteristics of the SO/AC?

We adopt this model because it brings these additional 2 powers.  Walk the community through our
thinking that of the 6 powers 2 are tricky under the designator model.  

Advice is that if you want a true and robust designator model you need to be a legal person.  And
under the status quo it is hard to label under corporate law, they lack the rights associated with a
designator model.  If want to avoid the difficulties of UA, then will end with a weak model, and

The member model provides the clearest path to the mechanism we want to put in place (not control of
the board)

Under current bylaws, could the So AC remove their Directors as designators, could it be enforced?
Not clear how a court would respond. Would have to convince a court that you had the powers.  

SO/AC not legal persons, so who would go to court?  Directors and Officers have standing, they could
make the argument before the court, so would need to persuade a director or officer to go to court. 

Current SO/AC.  Can we revise the bylaws to make them more like designators? Yes, can do that.  But
to give them the powers need to be UA.  

The bylaws and fundamental bylaws, remove directors and while board (with some contract)  Possible.
But the power to reconsider/reject the budget and strategic plan only though member.  And would
create some issues for the IRP. 

If these two powers are desired, then the member path is how to archive this. 

Summary chart of powers will be included in the document. 

If the GNSO names a director, conceivably the board might say you don't have the power to do that?
If the bylaws amended to say SO/AC have recall powers, the director can refuse to stand down saying
lack of enforceability under CA law.

These types of issues are examples of what the powers protect against and the mechanisms allow.

Do we have to create UA to archive all these powers?  What can be achieved if not created as UA?

"powers" Lawyer will say how to enforce.  But if, as under the current bylaws, you make rules that
people agree to follow, but are not enforceable, then that is fine.  But, there are some powers that
would not be legal. Cannot take away from the board decisions related to its fiduciary duty, such as
budget and strategic plan

(inaudible) Naming a person to represent.  as a middle ground approach (check AC at 1:18)

Suggestion for the CCWG report.  does a member of the SO implicitly be member of the unincorporated
association.  Some have comment that govt may struggle in this regard

The law requires at two persons associate.  once beyond that, law says that the entity can create
its own rules about who is part of it. 

Who can join,  Can allow any mechanism for the people to associate with the association.  And these
can be as loose or tight as you wish.  Suggestion is to take whatever is in the current bylaws.
Just piggyback in that.  The articles of association just point to that.  But do need to persons to
become part of the unincorporated association.

Would it be possible to have a ccTLD participating in the decisions of the ccNSO but not consider a
member of the UA.  
The UA can make its own rules.  It does not require you consider them  a member

Could, it be disregarded in litigation outside CA.  unincorporated association vary a lot even
within the US.

In all 50 US states, unincorporated association are not novel, and can sue or beside.  And CA has
pretty robust protections from liability.  In the US it could sue and be sued in the US.

Outside the US: significant work to research this. 

Most who need to rely on the protections will never set foot in the US.  March 18 memo from Sidley.
However... a number of non US jurisdictions do not recognize unincorporated associations and loom
thru the UA at the individuals as having liability 

Context:  about the transition.  Issue here, how to give power to the community vis a vis the
board/ICANN.  That issue governed by CA law.  

>From a stress test issue.  What statutory given rights given to an individual member, and how are
they balanced against community rights. How are they constrained.  Do individual members have
controller the affairs of ICANN.

Exposure in other countries   If you want to bring an action against ICANN need to be in a
jurisdiction where it has an office.  Could look at the 7 countries where there is an office and see
how they would resolve the choice of law question 

On the rule decision issue.  Should it extend to other law or only relate to the bylaws

Out sourcing the IRP panel, to the ICC etc.  Might be outsourced as a secretariat function.  Lawyers
can suggest language.  Standing, people need to agree on accepting the arbitration.  

Geographic diversity, but no specification of the location.  Will it be virtual, or based at an
office location.  

Q. can we have SO and AC and the NomCom as unincorporated with different voting powers, 5:2, 4:2,
4:0 etc.  Feasible?

Voting on what (e.g. a petition)

Differential voting power  - yes.  proposed that each member would be sole class of member.  And
each would have a set number of seats.  And they don't come together to do that. 

How long to implement UA and have in place. Once docs drafted it can be a quick process and can help
with the document drafting 

Greg and Robin to provide clarifying text?  Yes



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