[CCWG-ACCT] Concept of some form of "independent" member

Bruce Tonkin Bruce.Tonkin at melbourneit.com.au
Fri Jul 17 09:45:45 UTC 2015

Hello Greg,

>>  It's not just the statutory rights.  It's the fundamental fact that (and I am oversimplifying here) the Members are "at the top of the totem pole" in a membership non-profit corporation (at least under US law).

Yes -  I understand the simplicity of having legal persons as members and relying on California law.   It is a well established model that works particularly well within a particular national jurisdiction.   This is why many ccTLDs are structured as membership organisations where the majority of members are legal persons within the same country.   In a particular national jurisdiction - the national government can create its own laws with respect to how it interacts with its ccTLD (ie the Government is not usually a "member" of the ccTLD).

However on the other hand we are trying to create an organization that is genuinely international in nature and multi-stakeholder  - where the stakeholders include private and public sector participants from all nations.     

Using the bylaws and the existing SO/AC structures allows us to retain the notion of an organization that is not particularly dependent on its primary accountability mechanisms in being located under any particular set of laws.

So from my perspective - I like the concept of using bylaws to create the specific powers that the community wants, using IRP to adjudicate disputes under these bylaws, and having some simple last resort mechanisms if the decision of the IRP is not implemented.   The bylaws should make it clear that the organization is operated for the global public benefit, and that the SOs/ACs are proxies for communicating the wishes of the global public interest.   Ie I don’t think ICANN is created to meet the needs of the SOs and/or ACs as direct members, it is created to meet the needs of the global public (ie the several billion legal persons on this planet).   

The modeI I often refer to is the UDRP model - for trademark disputes around domain names - that is an example of a good scalable solution.   It is not particularly dependent on the national laws of the USA (although of course the registrars agreements are with ICANN located in the USA).     All registrants agree via their contract with registrars (which can be located in any national jurisdiction) to be subject to UDRP, and the UDRP panels are not tied to any particular jurisdiction.   Complainants can also use their local national laws if they don’t agree with the decision of the UDRP.

Bruce Tonkin

That said, focusing more narrowly on how to enforce an IRP is worth doing.  But I don't think that using the membership concept to do it is advisable.  I also don't think it makes sense to eliminate the overall concept of community-as-member.

In other words, I am not discouraging discussion of a mechanism to enforce the IRP, in addition to the potential capacity of the member or members to do so.


On Fri, Jul 17, 2015 at 4:54 AM, Bruce Tonkin <Bruce.Tonkin at melbourneit.com.au> wrote:
Hello Greg,

>>  Members have a legally distinct role in a nonprofit corporation, particularly with regard to authority and decision-making vis a vis the Board. 

Yes I get that.   Members have a series of statutory  rights under the law of where the membership organization is incorporated.

However my understanding is that we are actually explicitly enshrining the powers that the community seeks into the bylaws.

So then surely the issue is then whether ICANN is adhering to the new bylaws.

The IRP is a mechanism to adjudicate if there is a dispute about whether the Board is adhering to these bylaws.   I hope that there are also some lighter weight mechanisms - reconsideration/ombudsman as a step before needing to use an IRP (which currently seems to cost hundreds of thousands of dollars  and that is just the panel's costs, and take years to resolve).

Then there is a need to ensure that the Board abides by the outcome of the IRP.

My proposal was how to deal with the unlikely situation where the Board goes against an IRP panel.

Bruce Tonkin

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