[CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Avri Doria
avri at acm.org
Mon Jun 15 14:02:33 UTC 2015
Hi,
I agree with those who are argue that there is far greater power in the
Cooperative Model, aka Sidley's misnamed voluntary model, we currently
have than people are acknowledging. This is especially so with the many
improvements we have been discussing.
As we have seen on occasion when enough of us work together, the
multistakeholder process can force the Board/Staff's hand. I think
people exagerate the power exercised by the NTIA and its threat of
contract non-renewal. Also remember that we will still have a
possible RFP event; the IANA Functions Review and the Separation Cross
Community WG can serve as the same forcing function if that is the only
sort of thing that convinces corporate ICANN.
Not only will be able to use the combined stakeholder power to force
issues as we done before, we will still have the whole pro
intergovernmental crowd waiting for us to fail so that they save the day
at the ITU or some other IGO. That should be enough to inspire us. If
it doesn't, I do not see how something dragging through the courts for
years will make much of a difference.
As I have argued before, I think the whole membership route offers first
a set of delays while we try to agree on it with the Board, and then
allows for a new set of accountability holes we have yet to fully
explore or discover - my greatest concern. I believe we are rushing
into someting I think we just don't need for the transition.
But if we go with a membership model as so many insist, I believe that
only one where the SO or AC is the UA should be considered.
avri
On 15-Jun-15 03:03, Roelof Meijer wrote:
> Keith,
>
> I wonder if with "If a future ICANN Board were to jump the tracks, the
> community will no longer have the NTIA backstop. Without legal
> enforceability, the community would have to trust future ICANN Boards
> and trust future California Attorney Generals. “ you’re not
> oversimplifying or over-contrasting between the situation with legal
> enforceability and without.
>
> I think that in a situation where the board “jump the track”, the
> community ultimately goes through its process to spill the board and
> the board refuses to go, that board would be paralyzed in all ways,
> face shame and defamation individually on a global scale and would
> ruin their personal careers completely.
> They would dimply not do that.
>
> Best,
>
> Roelof
>
> From: <Drazek>, Keith Drazek <kdrazek at verisign.com
> <mailto:kdrazek at verisign.com>>
> Date: zondag 14 juni 2015 03:52
> To: Chris Disspain <ceo at auda.org.au <mailto:ceo at auda.org.au>>
> Cc: "accountability-cross-community at icann.org
> <mailto:accountability-cross-community at icann.org>"
> <accountability-cross-community at icann.org
> <mailto:accountability-cross-community at icann.org>>
> Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart,
> Voluntary Model
>
> Chris,
>
> NTIA's current enforcement powers are indirect but very real. Through
> its existing ability to re-bid the IANA Functions contract, NTIA
> ensures that ICANN and its Board of Directors remain true to its
> bylaws. That unique role is set to change.
>
> If a future ICANN Board were to jump the tracks, the community will no
> longer have the NTIA backstop. Without legal enforceability, the
> community would have to trust future ICANN Boards and trust future
> California Attorney Generals. Why shouldn't we instead trust the
> global multi-stakeholder community itself?
>
> If a future ICANN community were to try to spill the board, wouldn't
> we want that consensus decision to be legally enforceable? Or do we
> want to allow a future Board to tell the community it was wrong and,
> claiming fiduciary responsibility to the corporation, reject the decision?
>
> Ultimately, we're deciding whether authority should rest with the
> ICANN Board and the California AG, or with the ICANN community and the
> California AG.
>
> I'm in favor of the latter.
>
> Regards,
> Keith
>
>
> On Jun 13, 2015, at 6:08 PM, Chris Disspain <ceo at auda.org.au
> <mailto:ceo at auda.org.au>> wrote:
>
>> Hi Paul,
>>
>> I was specifically responding to Keith’s point so hardly a non-sequitur.
>>
>>
>>
>> Cheers,
>>
>>
>> Chris
>>
>>
>>> On 14 Jun 2015, at 02:29 , Paul Rosenzweig
>>> <paul.rosenzweig at redbranchconsulting.com
>>> <mailto:paul.rosenzweig at redbranchconsulting.com>> wrote:
>>>
>>> Chris
>>>
>>> We need more formal powers for the community because much of the
>>> power of the NTIA was informal. The only thing that could replace
>>> the NTIA precisely would be the NTIA. I get that you don't like the
>>> membership model. But asking why a non-governmental solution is
>>> different from a governmental one is just a non sequitur.
>>>
>>> Paul
>>>
>>> --
>>> Sent from myMail app for Android
>>>
>>> Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain
>>> <ceo at auda.org.au <mailto:ceo at auda.org.au>>:
>>>
>>> Greetings All,
>>>
>>> 1. on Becky’s comment below: if that is correct then surely the
>>> same applies to the relationship between the SO/AC and its
>>> Unincorporated Association. If a court cannot enforce a Board
>>> spill by the SOs/ACs then a court can also not make the UA do
>>> what the SO or AC wants. Can it?
>>>
>>> 2. on Keith’s comment below: How does the NTIA currently have
>>> powers of enforcement over ICANN outside of matters covered in
>>> the IANA contract? If NTIA was/is prepared to enter into an
>>> Affirmation of Commitment with ICANN which can be terminated by
>>> either party and is not legally enforceable, why should we
>>> insist on a higher standard?
>>>
>>>
>>>
>>> Cheers,
>>>
>>>
>>> Chris
>>>
>>>
>>>> On 13 Jun 2015, at 02:05 , Drazek, Keith <kdrazek at verisign.com
>>>> <x-msg://e-aj.my.com/compose/?mailto=mailto%3akdrazek@verisign.com>>
>>>> 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?
>>>>
>>>> After NTIA disengages, don’t we want the community to have
>>>> shared authority for enforcement, rather than leaving it to the
>>>> California Attorney General alone?
>>>>
>>>> Regards,
>>>> Keith
>>>>
>>>> *From:* accountability-cross-community-bounces at icann.org
>>>> <x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces@icann.org> [mailto:accountability-cross-community-bounces at icann.org
>>>> <x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces@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
>>>> <x-msg://e-aj.my.com/compose/?mailto=mailto%3abecky.burr@neustar.biz> / http://www.neustar.biz
>>>> <http://www.neustar.biz/>
>>>>
>>>>
>>>>
>>>> *From: *Roelof Meijer <Roelof.Meijer at sidn.nl
>>>> <x-msg://e-aj.my.com/compose/?mailto=mailto%3aRoelof.Meijer@sidn.nl>>
>>>> *Date: *Friday, June 12, 2015 at 8:18 AM
>>>> *To: *Accountability Community
>>>> <accountability-cross-community at icann.org
>>>> <x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity@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
>>>> <x-msg://e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com>>
>>>> *Date: *donderdag 11 juni 2015 06:09
>>>> *To: *"ccwg-accountability5 at icann.org
>>>> <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>"
>>>> <ccwg-accountability5 at icann.org
>>>> <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>>
>>>> *Cc: *Sidley ICANN CCWG <sidleyicannccwg at sidley.com
>>>> <x-msg://e-aj.my.com/compose/?mailto=mailto%3asidleyicannccwg@sidley.com>>,
>>>> ICANN-Adler <ICANN at adlercolvin.com
>>>> <x-msg://e-aj.my.com/compose/?mailto=mailto%3aICANN@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
>>>> <x-msg://e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com>
>>>> http://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=8g0nj7XBKequ4xTeqTLzy3EvyRZsOpZlGqNG7PIfFS4&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*
>>>>
>>>>
>>>>
>>>>
>>>> *From:*ccwg-accountability5-bounces at icann.org
>>>> <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounces@icann.org> [mailto:ccwg-accountability5-bounces at icann.org
>>>> <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounces@icann.org>] *On
>>>> Behalf Of *Hilton, Tyler
>>>> *Sent:* Monday, June 08, 2015 8:29 PM
>>>> *To:* ccwg-accountability5 at icann.org
>>>> <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@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
>>>> <x-msg://e-aj.my.com/compose/?mailto=mailto%3athilton@sidley.com>
>>>> http://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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