[CCWG-ACCT] Lawyers' Meeting on Friday

Fri Oct 2 05:07:40 UTC 2015

The Board’s proposal relies entirely on it’s statutory rights to be constrained by bylaws. If there is some question as to the sufficiency of relying on bylaw changes to constrain (or enshrine) rights, then all the more reason for a member model to make the rights statutory.

From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Chris Disspain
Sent: Thursday, October 1, 2015 9:05 PM
To: Jordan Carter
Cc: accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] Lawyers' Meeting on Friday

Hi Jordan,

"whether or not the decisions to exercise powers on the part of a member can be constrained”

This as you say is very narrow but important. It is clear that the statutory rights cannot be abrogated. So they will always be available. The question is how far they can be constrained. Constrained, to me, simply means how difficult can you make their exercise.

We have had very clear advice from our counsel that this can be done.

That is not my understanding. I think the advice has been that the lawyers believe it can be done but that there is no precedent to which they can point and therefore no guarantee that such a constraint would be upheld in court.

In any event, it appears that some members of the CCWG believe that there should be access to some, if not all of the statutory rights that a member would have.

Cheers,

Chris

On 1 Oct 2015, at 22:55 , Jordan Carter <jordan at internetnz.net.nz<mailto:jordan at internetnz.net.nz>> wrote:

Seun, all

I stand by my comment - the error is very narrow but very important:

"whether or not the decisions to exercise powers on the part of a member can be constrained"

We have had very clear advice from our counsel that this can be done. The board members in LA both in the meeting and in the corridors argued it can't, and they seemed to be arguing based on advice.

If there was advice from their Lawyers I want us all to see it.

If there was not, I want to know that too.

Both are very reasonable questions.

Cheers
Jordan

On Thursday, 1 October 2015, Seun Ojedeji <seun.ojedeji at gmail.com<mailto:seun.ojedeji at gmail.com>> wrote:
While I wish Bruce wisdom in answering your question. I don't understand how you conclude that it's erroneous. From my "very" little understanding of law, there are more than one way to achieve a goal and none of them lacks consequences (disadvantage).
We have requested CCWG legal to provide their view about board proposal, I don't know what is more useful than that document produced(unless we don't trust CCWG legal as well). I mean, how differently would we have responded by seeing the notes other than the way we have to board's proposal
That said, this does not mean I am discouraging transparency but just to indicate that our answer/solution to settle the current disagreement is most likely not in those notes.
Regards
Sent from my Asus Zenfone2
Kindly excuse brevity and typos.
On 1 Oct 2015 10:24, "Jordan Carter" <jordan at internetnz.net.nz<javascript:_e(%7B%7D,'cvml','jordan at internetnz.net.nz');>> wrote:
Hi Bruce

What advice has Jones Day or ICANN's in house legal team given to the Board - either directly or through management - or directly to management - that has led to erroneous conclusions regarding whether or not the decisions to exercise powers on the part of a member can be constrained or not?

Such erroneous conclusions were evident from the comments of some board members in Los Angeles.

Can that advise or a summary of it be shared with the CCWG?

Thanks
Jordan

On Thursday, 1 October 2015, Bruce Tonkin <Bruce.Tonkin at melbourneit.com.au<javascript:_e(%7B%7D,'cvml','Bruce.Tonkin at melbourneit.com.au');>> wrote:
Hello Farzaneh,

>>   I understand that the Board has made the Jones Day impact assessment available. But in a note it states that it has had discussions with advisors and staff. I would also like to request for any document that the Board has received in its discussion with the advisors and staff and notes of the  deliberation of their meetings.

Yes our intent is to make all documents available.   So far the only one that I am aware of is the Jones Day analysis that was published.

We received verbal briefings form the Advisors to the CCWG (https://community.icann.org/display/acctcrosscomm/Advisors) , and I understand these advisors also gave verbal briefings to the CCWG, as well as any written comments they have posted to the public comments forum.

Regards,
Bruce Tonkin

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Sent on the run, apologies for brevity

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Jordan Carter
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Sent on the run, apologies for brevity

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