[CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model

Sat Jun 13 13:36:29 UTC 2015

Dear All
It is said" Bylaw is a contract between ICANN( corporation ) and its member " and it goes saying " if ICANN has no member the Bylaw is not a contract"
Today ICANN ga no member then what is the status if current Bylaw?
Are we further pushing to the direction  that apart from exercising power in a membership model, it would also enforce the status of Bylaw?
Regards
Kavouss  
Sent from my iPhone

> On 13 Jun 2015, at 09:10, Avri Doria <avri at acm.org> wrote:
> 
> Hi,
> 
> We have a difference in perception on this.
> 
> Whereas I believe you think of ICANN as a closed community that
> excludes, I see the ICANN community as an open community that reaches
> out to all participants and is always reaching towards the global
> multistakeholder community.  There is an ICANN subgroup ready to welcome
> and include anyone interested.  And if some set of people approaches the
> ICANN community and says there is no place for them, and indeed we find
> there there isn't, then something will be done accommodate that new need.
> 
> Even though it is an open community that welcomes everyone who wants to
> get involved, it recognizes that not all can or would join in this open
> community.  To make sure they are not left out of the processes, they
> are always open to those others who do not wish to associate with the
> ICANN community, but want to participate nonetheless. Nt only can they
> participate fully in building the consensus in the working groups, they
> can stand on the outside, follow the process and submit comments. 
> Comments that a taken quite seriously by the working group.
> 
> Between these two elements, I see the process as indeed inclusive of the
> global multistakeholder community.  I can think of no better existing
> process for doing so, though readily acknowledge that of course the
> process needs to do ever better at outreach and ever better at inclusion.
> 
> 
> avri
> 
> 
> 
>> On 13-Jun-15 01:52, parminder wrote:
>> 
>> 
>>> On Friday 12 June 2015 09:35 PM, Drazek, Keith wrote:
>>> 
>>> Thanks Becky,
>>> 
>>> I think you highlight a key point.
>>> 
>>> Currently, NTIA and the California Attorney General are the only
>>> enforcement bodies ensuring ICANN remains committed to its bylaws.
>>> 
>>> The membership structure would give some of that authority to the
>>> ICANN community through its existing structures -- the SOs and ACs.
>>> 
>>> Isn’t that the definition of transitioning the United States
>>> government (in its various forms) out of its unique role?
>> 
>> Being at definitional matters; in my understanding, the definition of
>> 'transitioning the US government (in its various forms) out if its
>> unique role' is that the US government, and its agencies, have no role
>> that is not equivalent to that of any other government and its
>> agencies. That has always been the intent and purpose of the long
>> standing global demand for getting rid of US's unilateral oversight
>> over ICANN.
>> 
>> A wrong definition of the problem obviously leads to wrong solutions,
>> as is happening currently with the 'transition process'.
>> 
>>> After NTIA disengages, don’t we want the community to have shared
>>> authority for enforcement,
>> 
>> As you mention in an earlier part of your email, with community you of
>> course mean 'ICANN community'. Whatever be the intention of the 'ICANN
>> community', even NTIA's announcement asked for the oversight to pass
>> to 'global multistakeholder community' and not to the 'ICANN
>> community'.  Now if the 'ICANN community' being in charge of running
>> the transition process appropriates that new (partly) transitioned
>> oversight role to itself, it is perhaps an understandable human
>> failing, but that would normally be called as an illegitimate capture.
>> 
>> parminder
>> 
>> 
>>> rather than leaving it to the California Attorney General alone?
>>> 
>>> Regards,
>>> Keith
>>> 
>>> *From:*accountability-cross-community-bounces at icann.org
>>> [mailto:accountability-cross-community-bounces at icann.org] *On Behalf
>>> Of *Burr, Becky
>>> *Sent:* Friday, June 12, 2015 11:07 AM
>>> *To:* Roelof Meijer; Accountability Cross Community
>>> *Subject:* Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers
>>> Chart, Voluntary Model
>>> 
>>> 
>>> 
>>> Roelof,
>>> 
>>> shi
>>> 
>>> As I understand it, Courts view the bylaws as a contract between a
>>> corporation and its members/shareholders.  If ICANN has no members,
>>> the bylaws are not a contract with anyone, so the only party with
>>> authority to enforce would be the Attorney General.  (As discussed
>>> elsewhere, this is extremely unlikely to happen outside of a
>>> fraud/corruption situation.)
>>> 
>>> 
>>> 
>>> The fact that members of SO’s are legal entities doesn’t change this.
>>> Unless they are members of ICANN, they are not a party to the bylaws
>>> “contract.”
>>> 
>>> 
>>> 
>>> B
>>> 
>>> J. Beckwith Burr
>>> 
>>> *Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer
>>> 
>>> 1775 Pennsylvania Avenue NW, Washington, DC 20006
>>> 
>>> Office: + 1.202.533.2932  Mobile: 
>>> +1.202.352.6367  / becky.burr at neustar.biz
>>> <mailto:becky.burr at neustar.biz> / www.neustar.biz
>>> <http://www.neustar.biz>
>>> 
>>> 
>>> 
>>> *From: *Roelof Meijer <Roelof.Meijer at sidn.nl
>>> <mailto:Roelof.Meijer at sidn.nl>>
>>> *Date: *Friday, June 12, 2015 at 8:18 AM
>>> *To: *Accountability Community
>>> <accountability-cross-community at icann.org
>>> <mailto:accountability-cross-community at icann.org>>
>>> *Subject: *[CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart,
>>> Voluntary Model
>>> 
>>> 
>>> 
>>> Dear all, and especially dear legal colleagues,
>>> 
>>> 
>>> 
>>> The memo states:
>>> 
>>> 
>>> 
>>> "If there were a dispute between ICANN and an SO/AC, the parties
>>> could agree to an IRP and binding arbitration, but there would be no
>>> mechanism to restrain ICANN from acting contrary to these decisions,
>>> nor would there be a mechanism to challenge an arbitration decision
>>> that exceeded the scope of authority of the arbitration panel,
>>> outside an unlikely, independent intervention by the California
>>> Attorney General. "
>>> 
>>> 
>>> 
>>> I understand that the SO/AC’s, not being legal entities, cannot take
>>> legal action to enforce. However, does that really equal "no
>>> mechanism to restrain ICANN from acting contrary to these decisions”?
>>> 
>>> 
>>> 
>>> Most members of SO’s are legal entities, many members of AC’s are
>>> too, couldn’t those members, being affected parties, individually or
>>> collectively take legal action?
>>> 
>>> 
>>> 
>>> Alternatively, I would assume that before the ultimate step of
>>> talking legal action against ICANN, the community will have escalated
>>> through its powers and thus has completed the procedure to recall the
>>> entire board. The power to recall the entire board will have to be
>>> combined with the power to in one way or another appoint an interim
>>> board. So, the community, through due process, recalls the board. The
>>> board, in contradiction with the bylaws, refuses “to go”. The
>>> community has recalled the board and thus, through the defined
>>> process (also in the bylaws), appoints an interim board. According to
>>> the bylaws, this interim board is now the legal representative of
>>> ICANN. And can take the required legal action (if necessary) to force
>>> the “old” board to go away and get lost.
>>> 
>>> 
>>> 
>>> Would one of these two work?
>>> 
>>> 
>>> 
>>> Best,
>>> 
>>> 
>>> 
>>> Roelof Meijer
>>> 
>>> 
>>> 
>>> *From: *<Hofheimer>, "Joshua T." <jhofheimer at sidley.com
>>> <mailto:jhofheimer at sidley.com>>
>>> *Date: *donderdag 11 juni 2015 06:09
>>> *To: *"ccwg-accountability5 at icann.org
>>> <mailto:ccwg-accountability5 at icann.org>"
>>> <ccwg-accountability5 at icann.org <mailto:ccwg-accountability5 at icann.org>>
>>> *Cc: *Sidley ICANN CCWG <sidleyicannccwg at sidley.com
>>> <mailto:sidleyicannccwg at sidley.com>>, ICANN-Adler
>>> <ICANN at adlercolvin.com <mailto:ICANN at adlercolvin.com>>
>>> *Subject: *[Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
>>> 
>>> 
>>> 
>>> Dear Legal Sub-Team,
>>> 
>>> 
>>> 
>>> Further to the CCWG request on the call last Friday, attached is a
>>> memo revising the summary chart describing the viability of the
>>> enumerated powers under the three models – Member model, Designator
>>> Model and Voluntary Model.  We also explore the impact of not having
>>> the SO/ACs organized legal persons to represent their interests.
>>> 
>>> 
>>> 
>>> Cheers,
>>> 
>>> Josh
>>> 
>>> *JOSHUA* *HOFHEIMER  *
>>> 
>>> Sidley Austin LLP
>>> +1.213.896.6061 (LA direct)
>>> +1.650.565.7561 (PA direct)
>>> +1.323.708.2405 (cell)
>>> jhofheimer at sidley.com <mailto:jhofheimer at sidley.com>
>>> www.sidley.com
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>>> 
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>>> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=QOhQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=8g0nj7XBKequ4xTeqTLzy3EvyRZsOpZlGqNG7PIfFS4&e=> *SIDLEY
>>> AUSTIN LLP*
>>> 
>>> 
>>> 
>>> 
>>> 
>>> *From:*ccwg-accountability5-bounces at icann.org
>>> <mailto:ccwg-accountability5-bounces at icann.org>
>>> [mailto:ccwg-accountability5-bounces at icann.org] *On Behalf Of
>>> *Hilton, Tyler
>>> *Sent:* Monday, June 08, 2015 8:29 PM
>>> *To:* ccwg-accountability5 at icann.org
>>> <mailto:ccwg-accountability5 at icann.org>
>>> *Subject:* [Acct-Legal] Memo - Responses to CCWG GAC Questions
>>> 
>>> 
>>> 
>>> Dear Legal Sub-team,
>>> 
>>> 
>>> 
>>> Attached please find a memo responding to the list of questions from
>>> the Governmental Advisory Committee (GAC) provided to us on June 5, 2015.
>>> 
>>> 
>>> 
>>> Best,
>>> 
>>> 
>>> 
>>> *TYLER* *HILTON*
>>> Associate
>>> 
>>> Sidley Austin LLP
>>> 555 West Fifth Street
>>> Los Angeles, CA 90013
>>> +1.213.896.6130
>>> thilton at sidley.com <mailto:thilton at sidley.com>
>>> www.sidley.com
>>> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com&d=AwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=QOhQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=RZAttuK9gIR-rWhgnzzBCJwmd-AX6TvLB6W-cfwGyV4&e=>
>>> 
>>> http://www.sidley.com/files/upload/signatures/SA-autosig.png
>>> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=QOhQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=8g0nj7XBKequ4xTeqTLzy3EvyRZsOpZlGqNG7PIfFS4&e=> *SIDLEY
>>> AUSTIN LLP*
>>> 
>>> 
>>> 
>>> 
>>> 
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>> 
>> 
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