[CCWG-ACCT] Documents for Posting for CCWG-ACCT
Avri Doria
avri at acm.org
Sun Oct 4 16:01:55 UTC 2015
Hi,
As I mentioned in an earlier note, I was looking at that suggestion as
well. And while my initial thought was that it might work, I take the
comments made as a serious argument against that position. I think you
guys are right, when seen in the context of checks and balances, it
defeats the purpose. Though, as with the CCWG at present, the Board
members should be able to contribute to the discussion.
I think it is also less required than I thought given the ability, as
the Sidley/Adler memo reminds us, to use the bylaws under the current
CMSM model to restrict the powers to situations, as appropriate, where
there are Board triggers or agreement requirements.
avri
On 04-Oct-15 11:46, Kavouss Arasteh wrote:
> Ed
> I fully agree with the analysis that
> You have described.
> Once again separation of powers was the first and foremost /
> fundamental issue that we agreed and should stick to that.
> Board can not therefore be a member if the group .
> Kavouss
>
> Sent from my iPhone
>
> On 3 Oct 2015, at 14:54, Gregory, Holly <holly.gregory at sidley.com
> <mailto:holly.gregory at sidley.com>> wrote:
>
>> Ed, not all statutory rights need be addressed the same way.
>>
>>
>>
>> Sent with Good (www.good.com <http://www.good.com>)
>> *
>>
>> *
>> ------------------------------------------------------------------------
>> *From:* Edward Morris
>> *Sent:* Saturday, October 03, 2015 05:22:50 AM
>> *To:* Arun Sukumar
>> *Cc:* Seun Ojedeji; ICANN at adlercolvin.com
>> <mailto:ICANN at adlercolvin.com>; thomas at rickert.net
>> <mailto:thomas at rickert.net>; accountability-cross-community at icann.org
>> <mailto:accountability-cross-community at icann.org>; ACCT-Staff; Sidley
>> ICANN CCWG
>> *Subject:* Re: [CCWG-ACCT] Documents for Posting for CCWG-ACCT
>>
>> Arun,
>>
>> This is a well intentioned nonstarter. Take for example derivative
>> rights, that is the right to sue the corporation on behalf of the
>> corporation for gross malfeasance. To include the Board in the
>> decision would be to ask the Board whether it wishes to sue itself on
>> behalf of itself. If we get to that point we need to find a
>> corporate psychologist. One ideally should not sue oneself. Or
>> document rights. Dear Board, you refused to allow us to inspect
>> documents whose contents would help us in an IRP action we have
>> against you. Would you please join us in ruling against yourself?
>>
>> For the record, I like the statutory rights. They are the most potent
>> accountability mechanisms available to us, would probably rarely if
>> ever be used but their existence would help ensure compliance with
>> 'lesser' mechanisms and are a normal part of nonprofit corporate
>> governance. The further away we get from tried and true governance
>> principles enshrined in statutory law, full of legal precedence and
>> authority, the riskier the proposal.
>>
>> Best,
>>
>> Ed Morris
>>
>> Sent from my iPhone
>>
>> On Oct 3, 2015, at 10:58 AM, Arun Sukumar
>> <arun.sukumar at nludelhi.ac.in <mailto:arun.sukumar at nludelhi.ac.in>> wrote:
>>
>>> Hit send too early. This paragraph is most interesting. Shared
>>> governance is of course a political concept, but would involving the
>>> Board on specific decisions not violate the SoP principle that
>>> Kavouss and others have rightly highlighted? Would it hold water in
>>> California courts?
>>>
>>>
>>> Just as an example, the Bylaws could provide that all SOs and
>>> ACs must approve specific decisions in order for the community
>>> to direct the Sole Member with respect to the unwanted statutory
>>> right. This could even include involving the Board of Directors
>>> (for example with a trigger right, or an approval or veto right)
>>> with respect to dissolution and other statutory rights of
>>> concern. *The goal of such an approach would be to assure shared
>>> as opposed to unilateral governance of specifically identified
>>> critical decisions*
>>>
>>>
>>> On Sat, Oct 3, 2015 at 3:25 PM, Arun Sukumar
>>> <arun.sukumar at nludelhi.ac.in <mailto:arun.sukumar at nludelhi.ac.in>>
>>> wrote:
>>>
>>> Just as an example, the Bylaws could provide that all SOs and
>>> ACs must approve specific decisions in order for the community
>>> to direct the Sole Member with respect to the unwanted statutory
>>> right. This could even include involving the Board of Directors
>>> (for example with a trigger right, or an approval or veto right)
>>> with respect to dissolution and other statutory rights of
>>> concern. Th*/e goal of such an approach would be to assure
>>> shared as opposed to unilateral governance of
>>> specificallyidentified critical decisions/*
>>>
>>> On Sat, Oct 3, 2015 at 12:54 PM, Seun Ojedeji
>>> <seun.ojedeji at gmail.com <mailto:seun.ojedeji at gmail.com>> wrote:
>>>
>>> Hello Gregory,
>>>
>>> This is quite helpful memo, I particularly like the text below:
>>>
>>> "...Level 2: A consensus among all participating SOs and ACs
>>> (based on the Level 1 decisions of each participant) is then
>>> required to meet whatever decision threshold for a
>>> particular matter has been set in the Bylaws; it is at this
>>> level, Level 2, where it is entirely lawful to
>>> impose severe limits on the ability to direct the Sole
>>> Member with respect to any statutory rights that are of
>>> concern.."
>>>
>>> Will be good to know how this will work with ACs especially
>>> if votes is used to gauge consensus (this ofcourse is not a
>>> legal question)
>>>
>>> Regards
>>>
>>> Sent from my Asus Zenfone2
>>> Kindly excuse brevity and typos.
>>>
>>> On 2 Oct 2015 20:39, "Gregory, Holly"
>>> <holly.gregory at sidley.com <mailto:holly.gregory at sidley.com>>
>>> wrote:
>>>
>>> Thomas, Mathieu and Leon and CCWG,,
>>>
>>> In addition to slides comparing the Sole Member, Sole
>>> Designator and Board Proposal from last week (which we
>>> understand did not get posted yet) , we are providing a
>>> memo as requested in LA that discusses how the statutory
>>> rights of a member can be constrained in the Sole Member
>>> model.
>>>
>>> Kind regards, Holly and Rosemary
>>>
>>>
>>>
>>>
>>>
>>> *HOLLY* *GREGORY*
>>> Partner
>>>
>>> *Sidley Austin LLP**
>>> *+1 212 839 5853 <tel:%2B1%20212%20839%205853>
>>> holly.gregory at sidley.com <mailto:holly.gregory at sidley.com>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
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