[CCWG-ACCT] A plea for time

[Avri Doria]

Hi,

I do not see that at all.  I think the SM offers a model by which it is
done cooperatively if it is done at all and does not include the courts
unless either of them decides to act unilaterally. 

avri

On 11-Oct-15 13:53, Seun Ojedeji wrote:
>
> Hi Avri,
>
> I was waiting for someone to highlight how that plays in the SM so one
> could perhaps identity the differences (if any). Based on your
> response, it therefore seem that in both cases the court will rule in
> favour of the group with fiduciary duty (which is the board in both
> cases).
>
> Thanks
>
> Sent from my Asus Zenfone2
> Kindly excuse brevity and typos.
>
> On 11 Oct 2015 18:28, "Avri Doria" <avri at acm.org
> <mailto:avri at acm.org>> wrote:
>
>     Hi,
>
>     It is interesting.  I don not think it was on the CCWG horizon
>     until the
>     Board brought it up as a consideration for the SM.  We have since had
>     extensive discussions on the fact that this power already exists
>     in the
>     Board's hands. We have also gotten advice that issues like this can be
>     locked down in the SM model with bylaws requirement like:
>
>     - must be triggered by the Board to even be considered
>     - requires full consensus.
>
>     I think the test both for closing the doors and for rejecting the
>     closure of the doors can easily be covered for the SM model.
>
>     Of course we have to formally discuss and agree upon measures for
>     fixing
>     the gaps in the SM model. We are still in the pre-discussion about
>     whether and how to have the discussion.  Now that is interesting.
>
>     avri
>
>
>
>
>     On 11-Oct-15 12:48, Seun Ojedeji wrote:
>     >
>     > Hello,
>     >
>     > I will like to hear how the scenario you indicated below will be
>     > different if it were SM model? Please bear in mind that board still
>     > have fiduciary responsibilities in both cases.
>     >
>     > On a lighter note, is it not interesting(unfortunate) that self
>     > destruct scenarios is one the factors informing our proposal.
>     >
>     > Regards
>     >
>     > Sent from my Asus Zenfone2
>     > Kindly excuse brevity and typos.
>     >
>     > On 11 Oct 2015 17:31, "Rubens Kuhl" <rubensk at nic.br
>     <mailto:rubensk at nic.br>
>     > <mailto:rubensk at nic.br <mailto:rubensk at nic.br>>> wrote:
>     >
>     >>     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.
>     >>
>     >>
>     >
>     >     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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