[CCWG-ACCT] question on fiduciary duties and their objectivity

Fri Oct 2 10:08:11 UTC 2015

Dear Seue
Unfortunately, dispute Resolution was a general term used and does it in no
way replace IRP.Pls read my eralier message in this regard

BR

Kavouss

2015-10-02 11:43 GMT+02:00 <Jorge.Cancio at bakom.admin.ch>:

> Hi Mathieu,
>
>
>
> After reviewing the legal memo you just sent and what it says about
> fiduciary duties, I feel that the question I’m presenting is not tackled in
> that Memo and that we still would largely benefit right now from a better
> understanding of the question I was proposing.
>
>
>
> I’ve tried to specify the question a bit more, and it would look as
> follows:
>
>
>
> Is there any means under Californian Law that would allow to subject the
> exercise of fiduciary duties to objective and controllable standards? For
> example, could the following or similar means be acceptable and usable
> under Californian law:
>
> ·         concretizing these fiduciary duties in the Bylaws;
>
> ·         subjecting their correct interpretation to arbitration;
>
> ·         imposing special requirements on the rationale needed to be
> provided if they are used to override community decisions;
>
> ·         imposing extra-supermajorities in the Board in order to being
> able to invoke such duties?
>
>
>
> The underlying idea is IMHO very relevant to our present discussions on
> the Model, especially for those of us who are not experts in Californian
> Corporate Law: i.e. is there a legal means to subject those fiduciary
> duties to specific and objective standards and/or third-party control? If
> there are, could we use those means (if they exist) to develop our model?
> If they do not exist, or are too limited, this might speak for a membership
> structure.
>
>
>
> Please let me know if you can proceed with this.
>
>
>
> Regards
>
>
>
> Jorge
>
>
>
> *Von:* Mathieu Weill [mailto:mathieu.weill at afnic.fr]
> *Gesendet:* Freitag, 2. Oktober 2015 11:06
> *An:* Cancio Jorge BAKOM <Jorge.Cancio at bakom.admin.ch>;
> accountability-cross-community at icann.org
> *Cc:* leonfelipe at sanchez.mx; thomas at rickert.net
> *Betreff:* Re: question on fiduciary duties and their objectivity
>
>
>
> Dear Jorge,
>
> You are rightly pointing out one of the key areas where a shared
> understanding of the concept and consequences has not been achieved so far.
> $
>
> Our 2nd report highlighted this issue for further investigation during
> WS2, but I note that some comments mentioned that this should not be
> clarified as part of WS1. The exact wording of our work item was :
>
> o   Clarifying understanding of the fiduciary duties of Board Directors
> and related expectations concerning Director behavior for the Board.
>
>
> Past work on the topic include several mentions in legal memos. Most
> notable is on page 4 of one of the initial memos from our Counsel dated 12
> april (
> https://community.icann.org/download/attachments/52890082/Combined%20CCWG%20Cover%20Memo%20and%20Templates.pdf?version=3&modificationDate=1428797461000&api=v2)
> which addresses the balance between accountability and decision making
> authority.
>
> If we were to pursue this at this stage, we probably should flesh out some
> questions to direct work from our Counsel. What would be the type of
> questions you would raise Jorge ? (or others) ?
>
> Best
> Mathieu
>
>
> Le 01/10/2015 10:41, Jorge.Cancio at bakom.admin.ch a écrit :
>
> Dear all,
>
>
>
> During the debates we had on the last conference call I put forward a
> question which I feel could be important to better understand under
> Californian corporate law.
>
>
>
> This is whether there are any means to subject the exercise of “fiduciary
> duties” (by the Board) to objective standards.
>
>
>
> As I have understood the discussion so far, the membership model allows
> the member to override “fiduciary duties” of the Board. However the member
> itself has no fiduciary duties vis-à-vis the organization.
>
>
>
> On the other hand, fiduciary duties are apparently a useful tool within
> corporate law, as it imposes a duty to care for the welfare of the whole of
> the organization.
>
>
>
> The argument which is made by some, as far as I understand it, is that
> there is however a problem in the exercise of “fiduciary duties” as it
> would provide the Board with an “arbitrary” power, e.g. to override
> community decisions (in exercise of community powers) without being bound
> to any objective standards.
>
>
>
> Considering all this, my question (to the Lawyers, if this is certified as
> a question to them) would be: is there any means under Californian Law (or
> other US jurisdictions…) that would allow to subject the exercise of
> fiduciary duties to objective standards? (e.g. be it through concretizing
> these duties in the Bylaws, subjecting them to arbitration, imposing
> special requirements on the rationale needed to be provided if they are
> used to override community decisions, or, for instance, imposing
> extra-supermajorities in the Board in order to being able to invoke such
> duties?)
>
>
>
> Hope this helps,
>
>
>
> Regards
>
>
>
> Jorge
>
>
>
> --
>
> *****************************
>
> Mathieu WEILL
>
> AFNIC - directeur général
>
> Tél: +33 1 39 30 83 06
>
> mathieu.weill at afnic.fr
>
> Twitter : @mathieuweill
>
> *****************************
>
>
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