[CCWG-ACCT] A plea for time

[Rubens Kuhl]

> The ICANN Board has proposed the Community IRP as binding arbitration. The CCWG’s attorneys have said that the Board can refuse to implement such a binding arbitration decision if it claims that to implement it would be a breach of its obligations to act in the best interests of ICANN. This is true BUT the community representatives can then go to court and a court will enforce the arbitration decision if it disagrees with the Board's view. In my opinion this is precisely the type of safeguard we need to have in place because it ensures that an elected board made up of representatives of the multi-stakeholder community will always act, first, in the interests of a stable and secure Internet and it puts in place an independent arbiter to decide, in the final analysis, if the community or the board is right.   
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Just a small stress-test on this: let's say that ICANN is behaving so erratically that the community asked for ICANN to dissolve itself. Board refuses, community goes to Community IRP and prevails. Board then refuses again, saying that fiduciary duties to the corporation prevent them from implementing that decision... when this matter goes to court, a court may say that the articles of incorporation indeed prevent the board from dissolving the company, no matter any reasoning to the contrary. The court might not have latitude to tell ICANN to do otherwise even if the court agrees with both the community and the IRP panel. 


Rubens




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