[CCWG-ACCT] Fwd: Question from Izumi re Comparison of independent review processes
Mathieu Weill
mathieu.weill at afnic.fr
Tue Oct 13 08:12:59 UTC 2015
Dear Colleagues,
Below is the response from our Counsel regarding Izumi's questions
certified as #81.
The questions were :
-Under the MEM proposed by ICANN, who exactly and on which
basis has theright to commence proceedings in order to enforce the
binding arbitration?
-Should SO/ACs be unincorporated associations? Should SO/ACs
give power of attorney to their chairs or one of their member?
Best
Mathieu
-------- Message transféré --------
Sujet : Question from Izumi re Comparison of independent review processes
Date : Mon, 12 Oct 2015 20:38:59 +0000
De : Gregory, Holly <holly.gregory at sidley.com>
Pour : leonfelipe at sanchez.mx <leonfelipe at sanchez.mx>,
mathieu.weill at afnic.fr <mathieu.weill at afnic.fr>, thomas at rickert.net
<thomas at rickert.net>
Copie à : ICANN at adlercolvin.com <ICANN at adlercolvin.com>, Sidley ICANN
CCWG <sidleyicannccwg at sidley.com>
Dear Mathieu, Leon and Thomas,
With respect to Izumi’s inquiry, questions about how the MEM is intended
to work are best addressed to the Board, ICANN Legal and Jones Day.
Below are the memos (with links) where we attempted to compare the MEM
to other models with respect to the enforcement of community powers
based on our understanding of what has been proposed. Please let us
know if there is anything else we can provide.
·Comparison of CCWG 2nd Draft Proposal (Community Mechanism as Sole
Member) and ICANN Board Proposal (*Link*
<http://mm.icann.org/pipermail/accountability-cross-community/attachments/20151006/1d560670/ComparisonofCCWG2ndDraftProposalandICANNBoardProposalSeptember222015-0001.pdf>)
oItem 15 - “The MEM model complicates the standing analysis because
community members seeking to arbitrate must join together as a MEM Issue
Group. It will be important for the Board to clarify whether they intend
the MEM Issue Group to be considered an unincorporated association,
which would be required to establish associational standing. If the MEM
Issues Group does not come into existence until it is formed to file a
complaint with the MEM, a question arises regarding how it can claim
that it existed at the time of (and was materially affected by) the
Board’s alleged violation. To file a MEM complaint, must all members of
the Issues Group be materially affected or can the Group file a MEM
complaint in collective support of a single SO or AC that is materially
affected? The CMSM avoids the difficulty of a temporary “coalition of
the willing” by existing as an unincorporated Sole Member entity prior
to the filing of any claim with the IRP (or MEM).”
·KEY CHARACTERISTICS COMPARISON: Community Mechanism As Sole Member
Model & ICANN Board Proposal (*Link*
<http://mm.icann.org/pipermail/accountability-cross-community/attachments/20151006/1d560670/KeyCharacteristicsComparison-CMSMandBoardProposal-0001.pdf>)
oSlide 5 - “SO/AC can petition to invoke MEM Arbitration; upon reaching
a certain threshold of SO/AC support a MEM Issue Group would be formed
which (depending upon implementation) could have standing under Bylaws
and legal capacity to initiate and enforce arbitration. Scope of
permissible MEM arbitration (Fundamental Bylaw violation v. “new
community power violation”) unclear. SO/ACs may bring actions in CA
courts seeking enforcement of MEM award, although this may require legal
personhood. No single SO/AC has standing to bring derivative suits
against fiduciaries. The MEM Issue Group, as a separate unincorporated
association, would be part of each MEM.”
·Comparison of Current Independent Review Process (IRP), IRP in CCWG
2^nd Draft Proposal under the Community Mechanism as Sole Member (CMSM)
Model and ICANN Board Proposal re IRP and Multistakeholder Enforcement
Mechanism (MEM) (*Link*
<https://community.icann.org/download/attachments/52896826/Sidley%20Adler%20Memo%20-%20Comparison%20of%20Review%20Processes%20%28October%207%2C%202015%29.pdf?version=1&modificationDate=1444394338000&api=v2>)
oItem 3 Who May Initiate; Harm Threshold - “MEM limited to Board action
in violation of Fundamental Bylaws, and MEM petition must be initiated
by an SO or AC . . .”
oItem 7 – Capacity to Sue for Judicial Enforcement - “Three avenues are
suggested:
§an individual SO/AC or some collection of SOs/ACs could form an
unincorporated association (UA);
§the members of multiple SO/ACs could form one UA; or
§the chairs of multiple SO/ACs could form a UA.”
*HOLLY**J. GREGORY*
Partner and Co-Chair
Global Corporate Governance & Executive Compensation Practice
*Sidley Austin LLP**
*+1 212 839 5853
holly.gregory at sidley.com <mailto:holly.gregory at sidley.com>
------------------------------------------------------------------------
*From:*Mathieu Weill
*Sent:* Saturday, October 10, 2015 03:57:11 AM
*To:* Gregory, Holly
*Cc:* León Felipe Sánchez Ambía; Izumi Okutani; Samantha Eisner;
ICANN-Adler; Thomas Rickert; accountability-cross-community at icann.org
<mailto:accountability-cross-community at icann.org>; ACCT-Staff; Sidley
ICANN CCWG
*Subject:* Re: [CCWG-ACCT] Comparison of independent review processes
Hi Holly,
I believe this is just a follow up isn't it ? My understanding was that
Izumi's question was already addressed in the various memos ?
Mathieu Weill
---------------
Depuis mon mobile, désolé pour le style
Le 10 oct. 2015 à 01:19, Gregory, Holly <holly.gregory at sidley.com
<mailto:holly.gregory at sidley.com>> a écrit :
We will add it to the certified list of questions.
Sent with Good (www.good.com
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------------------------------------------------------------------------
*From:*León Felipe Sánchez Ambía
*Sent:* Friday, October 09, 2015 05:53:46 PM
*To:* Izumi Okutani
*Cc:* Samantha Eisner; ICANN-Adler; Thomas Rickert;
accountability-cross-community at icann.org
<mailto:accountability-cross-community at icann.org>; ACCT-Staff;
Sidley ICANN CCWG; Mathieu Weill
*Subject:* Re: [CCWG-ACCT] Comparison of independent review processes
Dear Holly, dear Rosemary,
I think this is a key question. Could you kindly provide an answer?
Saludos,
León
> El 09/10/2015, a las 5:02 p.m., Izumi Okutani <izumi at nic.ad.jp
<mailto:izumi at nic.ad.jp>> escribió:
>
> Thanks Sam for this information.
>
> I also have a follow up question and would be interested to hear
the CCWG lawyers' (Sidley Austin and Adler Colvin) view on this.
>
> Under the MEM proposed by ICANN, who exactly and on which basis
has the
> right to commence proceedings in order to enforce the binding
arbitration?
>
> Should SO/ACs be unincorporated associations? Should SO/ACs give
power
> of attorney to their chairs or one of their member?
>
> I would appreciate some clarification on this matter.
>
>
> Thank you,
> Izumi
>
>> On 2015/10/09 4:28, León Felipe Sánchez Ambía wrote:
>> Thanks Sam. This is very useful information.
>>
>> It would be useful to know how this avoids going into the
concerns raised by the Board on capture, complexity and uncertainty:
>>
>> Quote from Jones Day Memo
>>
>> "Specifically, under the Board’s Proposal, the decision could be
enforced by an unincorporated association comprised of: (i) an
individual participating SO/AC or some grouping of participating
SOs/ACs; (ii) the members of multiple participating SOs/ACs; or
(iii) chairs of multiple participating SOs/ACs. In the alternative,
the individual (natural) people serving as chairs of the
participating SOs/ACs could enforce the award in an individual
capacity."
>>
>> It would be great if we could have more clarity on this I think.
>>
>>
>> Best regards,
>>
>>
>> León
>>
>>> El 08/10/2015, a las 1:47 p.m., Samantha Eisner
<Samantha.Eisner at icann.org <mailto:Samantha.Eisner at icann.org>> escribió:
>>>
>>> I am forwarding this on behalf of Jones Day, as they do not
have sending rights to this list.
>>>
>>> Note from Jones Day:
>>>
>>> Dear CCWG,
>>>
>>> As Holly noted in her cover email, CCWG Counsel's "Comparison
of Independent Review Processes" was provided to Jones Day in
advance of it being circulated to the CCWG. In the interests of
transparency, please note that Jones Day did not provide line edits
identifying the areas of disagreement with CCWG Counsel, but instead
provided the attached memorandum for CCWG Counsel's consideration.
CCWG Counsel did not revise its Comparison document to reflect the
thoughts set forth in the attached Jones Day memo. Sidley/Adler
understood that this memo would be shared with the CCWG after their
Comparison document was circulated.
>>>
>>> From: <accountability-cross-community-bounces at icann.org
<mailto:accountability-cross-community-bounces at icann.org>
<mailto:accountability-cross-community-bounces at icann.org>> on behalf
of "Gregory, Holly" <holly.gregory at sidley.com
<mailto:holly.gregory at sidley.com> <mailto:holly.gregory at sidley.com>>
>>> Date: Wednesday, October 7, 2015 at 10:24 PM
>>> To: Thomas Rickert <thomas at rickert.net
<mailto:thomas at rickert.net> <mailto:thomas at rickert.net>>, Mathieu
Weill <mathieu.weill at afnic.fr <mailto:mathieu.weill at afnic.fr>
<mailto:mathieu.weill at afnic.fr>>, León Sánchez Ambía
<leonfelipe at sanchez.mx <mailto:leonfelipe at sanchez.mx>
<mailto:leonfelipe at sanchez.mx>>
>>> Cc: Sidley ICANN CCWG <sidleyicannccwg at sidley.com
<mailto:sidleyicannccwg at sidley.com>
<mailto:sidleyicannccwg at sidley.com>>, ACCT-Staff
<acct-staff at icann.org <mailto:acct-staff at icann.org>
<mailto:acct-staff at icann.org>>, ICANN-Adler <ICANN at adlercolvin.com
<mailto:ICANN at adlercolvin.com> <mailto:ICANN at adlercolvin.com>>,
"accountability-cross-community at icann.org
<mailto:accountability-cross-community at icann.org>
<mailto:accountability-cross-community at icann.org>"
<accountability-cross-community at icann.org
<mailto:accountability-cross-community at icann.org>
<mailto:accountability-cross-community at icann.org>>
>>> Subject: [CCWG-ACCT] Comparison of independent review processes
>>>
>>> Dear CCWG Co-chairs, Members and Participants, Attached please
find a comparison of key characteristics of (1) ICANN's current
IRP, (2) the IRP under the CCWG 2nd Draft Proposal (in the context
of the Community Mechanism as Sole Member Model), and (3) the IRP
and MEM set forth in the Board Proposal as requested in L.A.
>>> We shared this with Jones Day and ICANN Legal in advance so
that they could provide any corrections regarding our understanding
of the IRP and MEM as set forth in the Board Proposal.
>>> Kind regards, Holly and Rosemary
>>>
>>>
>>>
>>> Sent with Good (www.good.com
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>>>
>>> From: Grapsas, Rebecca
>>> Sent: Wednesday, October 07, 2015 11:45:50 PM
>>> To: Gregory, Holly
>>> Subject:
>>>
>>>
>>>
>>>
>>>
****************************************************************************************************
>>> This e-mail is sent by a law firm and may contain information
that is privileged or confidential.
>>> If you are not the intended recipient, please delete the e-mail
and any attachments and notify us
>>> immediately.
>>>
>>>
****************************************************************************************************
>>> <Oct. 7, 2015 Memo re Enforceability of Binding Arbitration[1].pdf>
>>
>>
>>
>>
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