[CCWG-ACCT] Continued Counsel Dialogue

Seun Ojedeji seun.ojedeji at gmail.com
Fri Oct 2 23:53:30 UTC 2015


Greg, I think we bring so much legal stuff into this that makes us forget
the element of nature called "choice".

Can you tell me the outcome of a scenario where the community by "choice"
decides to ask/mandate board to implement certain things and then if board
by choice decides not to implement such request. Does the community go into
the implementation without paying recognition to the board or what?

My point was that it is ultimately the judge's verdict that enforce and not
necessarily the membership nor MEM. All through the escalation process
before courts, the community and/or the board has a choice to make and
because there is membership should not be perceived as final except the
court says so.

Membership however provides the standing to get to enforce in courts (and
such standing is what we are/should also be checking if it exist within
MEM). So membership is not itself the end but just the means to the end.

Again focusing on the means(model) and not the end(goals) is what has been
prolonging this process for so long. Earlier in this process, I mentioned
that some of us have limited resources and cannot continue this aggressive
process for so long. Perhaps this process will exhaust some of us and
others well motivated can then have their way.

I rest my case!

Regards

Sent from my Asus Zenfone2
Kindly excuse brevity and typos.
On 3 Oct 2015 00:27, "Greg Shatan" <gregshatanipc at gmail.com> wrote:

> Seun,
>
> You are incorrect about how a US membership non-profit corporation works,
> and how the membership relates to the Board.  In a membership non-profit,
> the membership has certain superior rights vis a vis the Board.  I believe
> this is clear from the Sidley/Adler documents.
>
> If there is no membership, then the community can only ASK board to do
> things.  That seems to be your desired outcome, but I don't think that is
> broadly shared within the CCWG. I think this goes beyond even the Board
> comments, where they are willing to give the Community things that at least
> look like powers (though subject ultimately to the Board's discretion and
> judgment)
>
> The only reason I can think that "going to court to enforce would be more
> closer in the escalation process than we may be thinking" is the tone and
> approach of this memo.
>
> Greg
>
> On Fri, Oct 2, 2015 at 7:14 PM, Seun Ojedeji <seun.ojedeji at gmail.com>
> wrote:
>
>> Hi Avri,
>>
>> I think it needs to be clear that the community can only ASK board to do
>> things, whether they would do it is entirely at the discretion of the
>> board. This is normal for membership setup as the community has no
>> executive status to implement.
>>
>> That said, I am in full agreement with trying to resolve things locally
>> as much as possible and if you ask me, I don't think membership will
>> encourage that approach. Going to court to enforce would be more closer in
>> the escalation process than we may be thinking.
>>
>> Regards
>> Sent from my Asus Zenfone2
>> Kindly excuse brevity and typos.
>> On 2 Oct 2015 23:50, "Avri Doria" <avri at acm.org> wrote:
>>
>>> Hi,
>>>
>>> Ultimately yes, they can all end up in court.
>>>
>>> The critical issue in my mind is how many steps we can take inside the
>>> organizations process to remedy before having to resort to the ultimate
>>> nastyness - appearing before a judge. I think each trip to court is a
>>> failure to be avoided.  Our model needs to deal properly with shared
>>> decision making while allowing for problem resolution in a way that
>>> avoids such failures.
>>>
>>> avri
>>>
>>>
>>> On 02-Oct-15 18:21, Chris Disspain wrote:
>>> > I don’t disagree with you Avri but isn’t going to court the ultimate
>>> > enforceability in any of the models/ideas we have been discussing?
>>> >
>>> >
>>> >
>>> > Cheers,
>>> >
>>> >
>>> > Chris
>>> >
>>> >
>>> >> On 2 Oct 2015, at 21:07 , Avri Doria <avri at acm.org
>>> >> <mailto:avri at acm.org>> wrote:
>>> >>
>>> >> Hi,
>>> >>
>>> >> Within ICANN, it rests with the Board.
>>> >>
>>> >> I resist the idea of including going to court as a normal part of our
>>> >> process.  I have argued all the way through this process, that going
>>> to
>>> >> court is something to be avoided and something we should not consider
>>> to
>>> >> be part of the process.  Yes at the end of the day it needs to be
>>> >> possible, but it is a failure indication.
>>> >>
>>> >> avri
>>> >>
>>> >>
>>> >> On 02-Oct-15 06:57, Chris Disspain wrote:
>>> >>> No Avri. At the end of the day it rests with the court as I believe
>>> is
>>> >>> clear from the note from JD.
>>> >>>
>>> >>> After a finding by an arbitration panel that a bylaw has been
>>> >>> breached, it is a matter for the Board about how they remedy (as I
>>> >>> believe is the case with the member model also) and that remedy is
>>> >>> itself subject to a claim that it breaches a bylaw (if the community
>>> >>> has consensus). If the Board refuses to abide by the ruling then a
>>> >>> court can order them to do so.
>>> >>>
>>> >>> Have I misunderstood the way the member model works. I believe Becky
>>> >>> has said numerous times that the only finding could be that the
>>> >>> relevant bylaw has been breached, NOT that the Board must take a
>>> >>> specific action. Is that wrong?
>>> >>>
>>> >>>
>>> >>>
>>> >>> Cheers,
>>> >>>
>>> >>>
>>> >>> Chris
>>> >>>
>>> >>>
>>> >>>> On 2 Oct 2015, at 20:46 , Avri Doria <avri at acm.org
>>> >>>> <mailto:avri at acm.org>
>>> >>>> <mailto:avri at acm.org>> wrote:
>>> >>>>
>>> >>>> Hi,
>>> >>>>
>>> >>>> That was one of my favorite lines as well.
>>> >>>>
>>> >>>> And is a key point.  In the current model, and as far as I can tell
>>> in
>>> >>>> the MEM, at the end of the day, all always rests "within the Board's
>>> >>>> discretion."
>>> >>>>
>>> >>>> avri
>>> >>>>
>>> >>>>
>>> >>>> On 02-Oct-15 05:29, Dr Eberhard W Lisse wrote:
>>> >>>>> I really LOVE this one:
>>> >>>>>
>>> >>>>> [...]
>>> >>>>> "the Board is required to remedy that violation, within the
>>> >>>>> Board’s discretion."
>>> >>>>> [...]
>>> >>>>>
>>> >>>>> (last line on Page 1)
>>> >>>>
>>> >>>>
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