[CCWG-ACCT] Lawyers' Meeting on Friday

Jordan Carter jordan at internetnz.net.nz
Sun Oct 4 19:47:06 UTC 2015


hi Bruce, all:

On 2 October 2015 at 20:43, Bruce Tonkin <Bruce.Tonkin at melbourneit.com.au>
wrote:

> Hello Jordan,
>
>
>
> >>  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?
>
>
>
> I will check to see if we have received any legal advice on that topic and
> share it with the group.
>
>
>
> I think as Chris noted you can’t actually limit a statutory power, but the
> idea is to limit what the member does via the member’s own operating
> procedures.   There is probably still nothing stopping the member though if
> it actually wanted to use the statutory power.   Ie the member has legal
> standing and can still enforce its statutory powers under California law.
>
>
>

This is the heart of the misconception that needs to be cleared up, so
thank you for stating it so clearly.

The decision-making procedures of the single member can very clearly apply
such thresholds to certain decisions that would be available to the single
member - just like the bylaws do now for some Board decisions.

The procedures the CMSM uses, if we go down that route. should be in the
bylaws.

And the procedures should only be able to be changed by full consensus of
the community - including the Board.

So nobody is pretending, and nobody should argue, that the CMSM model
wouldn't "have" the powers. It's more the case that both of its arms would
be tied behind its back and it would be utterly and conclusively unable to
exercise some of those powers.


best
Jordan
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