[CCWG-ACCT] Regarding Fiduciary responsibility of the Board

[Nigel Roberts]

Bruce:

This is helpful, but, I think, your answer confirms my reservations 
regarding the careless use of the fiduciary terminology.

Directors have a fiduciary duty to the Corporation, not to an amorphous 
'internet community'.

In fact, under trust law and Equity, one cannot hold something on trust 
for such a beneficiary as the "internet community as a whole" since the 
object towards which one has the fiduciary duty (that is to say, the 
owner of the ultimate property) cannot be identified with sufficient 
precision.

This was discussed in the English case of The Queen -v- District Auditor 
(on the application of West Yorkshire MCC).

As an English case, this would persuasive precedent in California only 
to the extent that there are no California case or statutory provisions, 
so I do not submit this as being decisive of the question.

But it's certainly on on point, and remains influential precedent 
throughout those countries whose legal systems have have equitable 
jurisdictions (such as the USA, Canada, UK, and former British colonies) 
and include trusts and fiduciaries.

The differences between a fiduciary duty and an ordinary duty of care 
are reasonably well understood. Indeed, my home jurisdiction, as it is a 
global financial centre has chosen to regulate, at a fairly detailed 
level, the activities of professional fiduciaries.

As a former Board member of a similar (national) organisation to ICANN, 
of course, I understand the need for, and the nature of the training you 
refer to.  But I sumbit the nature of the Directors' duty you refer to, 
is towards the corporation, in the pursuit of the goals set out in the 
Articles, and NOT towards the internet community, as such a duty would 
be regarded as legally unworkable.

Thus a director should act in the best interest of the corporation. If a 
director proposed the corporation become a promoter of the next Kylie 
Minogue tour, or a producer of a Hollywood movie, he or she would be 
acting ultra vires their fiduciary duty -- as this is not in accordance 
with Arts. 3 or 4.

But hiring Ms Minogue to perform at the next ICANN Gala in London or New 
York in pursuit of the corporations normal goals, might not be ultra 
vires, depending on a number of factors specific to the occasion, 
including price, and whether it advanced the goals in Arts 3/4.



Nigel

PS: An ICANN Director's fiduciary duty to the corporation should not 
override the reason he or she was seated by an SO or AC -- which is, IN 
THE PURSUIT of the corporation's public benefit role, to provide the 
perspective of the section of the community that seated them.

So while a Director has a fiduciary duty to the corporation this does 
not extend to a prohibition on representing the views of their 
particular section of the community, and voting accordingly, so long as 
they do not so capriciously or ultra vires the Articles.



On 03/10/15 23:54, Bruce Tonkin wrote:
> Hello Nigel,
>
>>From the link you have provided:
>