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

[Dr Eberhard W Lisse]

Dear Co-Chairs,

please forward the question to the legal advisers, just in case there
is something like international customary law.

greetings, el

On 2015-06-15 21:43 , Kavouss Arasteh wrote:
> Dear All,
> I wrote
> Customary law
> Tks
> Kavousd
> 
> Sent from my iPhone
> 
>> On 15 Jun 2015, at 22:16, Dr Eberhard W Lisse <el at lisse.NA> wrote:
>>
>> Dear Co-Chairs,
>>
>> International law has nothing to do with this. And I think we have
>> discussed what International law does/is previously.
>>
>> el
>>
>>> On 2015-06-15 21:11 , Kavouss Arasteh wrote:
>>> Becky
>>> Thank you for reply,
>>> According to all applicable international law every organisation ,
>>> state, institution  has a Constitution, convention, charter and ,,,, the
>>> Bylaws is the ICANN charter which governs its activities.
>>> It is NOT a contract at all . From international customary law the
>>> definition of contract is quite different from the charter, convention,
>>> treaty, agreement .
>>> ICANN community are spread over the whole  world and  should not be
>>> subordinated to  something which inconsistent with all norms rules .
>>> Regards
>>> Kavouss
>>>
>>> Sent from my iPhone
>>>
>>> On 15 Jun 2015, at 20:23, Burr, Becky <Becky.Burr at neustar.biz
>>> <mailto:Becky.Burr at neustar.biz>> wrote:
>>>
>>>> Re my previous comment:
>>>>
>>>>>>    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.)
>>>> To Kavouss – my comment is simply a restatement of applicable law, and
>>>> how the Courts in the US would interpret the Board’s obligations in
>>>> the Bylaws.   I was not taking any position on whether this is good,
>>>> bad, desirable, not, etc.
>>>>
>>>> To Chris re infinite regress.  Ultimately, yes.  
>>>>
>>>> On the question of IRP/arbitration v. court, I am now quite confident
>>>> that as a matter of law we should be able to require members to
>>>> resolve disputes – including disputes related to breach of charitable
>>>> trust/fiduciary duty – through the IRP.  There are no guarantees in
>>>> life, however, and courts in California – just like courts anywhere in
>>>> the world – sometimes do surprising things.  But putting aside some
>>>> real corner cases, the Federal Arbitration Act, as interpreted by the
>>>> US Supreme Court, is increasingly deferential to properly crafted
>>>> choice of forum provisions in contracts, including bylaws in
>>>> company/shareholder/member disputes.
>>>>
>>>> So we should take the “endless litigation” and decisions by California
>>>> courts out of the debate on the “voluntary/cooperative” model vs. the
>>>> “enforcement/membership” model please.  I know that won’t resolve the
>>>> debate, but try to focus on other concerns.
>>>
>>>
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>>
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