[CCWG-ACCT] Summary words from engagement meeting

Sat Oct 17 14:53:48 UTC 2015

Thanks Jordan … I guess that begs the question then – in what forum would differences in transparency between the two models be in scope?  Has it been considered at all?  If not, I think we’ve missed an important issue.  If it has … well, guide me Obi-Wan

P

Paul Rosenzweig

 <mailto:paul.rosenzweigesq at redbranchconsulting.com> paul.rosenzweig at redbranchconsulting.com 

O: +1 (202) 547-0660

M: +1 (202) 329-9650

VOIP: +1 (202) 738-1739

Skype: paul.rosenzweig1066

 <http://www.redbranchconsulting.com/index.php?option=com_content&view=article&id=19&Itemid=9> Link to my PGP Key

From: Jordan Carter [mailto:jordan at internetnz.net.nz] 
Sent: Saturday, October 17, 2015 10:22 AM
To: Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com>
Cc: Desiree Miloshevic <dmiloshevic at afilias.info>; Accountability Cross Community <accountability-cross-community at icann.org>
Subject: Re: [CCWG-ACCT] Summary words from engagement meeting

hi Paul

The topic of our group was narrow - it was to understand the differences in enforceability between the SD and the SM models. We were not asked to, and did not, investigate all of the other issues.

Jordan

On 17 October 2015 at 15:14, Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com <mailto:paul.rosenzweig at redbranchconsulting.com> > wrote:

Dear Jordan/Desiree/Others

I regret, of course, not being in Dublin with you – especially since Mathieu and Lise are buying the first round this evening at the pub.

Had I been there, and had I been able to join your enforcement meeting there is one question I would have asked relating to our efforts to distinguish the Member and Designator models, viz:  My understanding is that the Member of a corporation has certain statutory rights of inspection that would, if invoked, require the corporation to be more transparent.  In particular, the right of inspection, as I understand it, extends to a right to inspect financial records of the corporation and to demand public access to the minutes of Board meetings.  My further understanding is that these statutory rights are NOT available in the Designator model.

Assuming my understanding is correct (and I am more than happy to be corrected), what was the reasoning behind the argument for giving up these inspection rights?  To my mind they would be essential components of transparency and part of the key to maintaining good community insight into the operations of the corporation.  And that, in turn, seems to me a strong argument for the Membership model.  I’m not sure I see what the counter-argument is.

Regards

Paul

Paul Rosenzweig

 <mailto:paul.rosenzweigesq at redbranchconsulting.com> paul.rosenzweig at redbranchconsulting.com 

O: +1 (202) 547-0660 <tel:%2B1%20%28202%29%20547-0660> 

M: +1 (202) 329-9650 <tel:%2B1%20%28202%29%20329-9650> 

VOIP: +1 (202) 738-1739 <tel:%2B1%20%28202%29%20738-1739> 

Skype: paul.rosenzweig1066

 <http://www.redbranchconsulting.com/index.php?option=com_content&view=article&id=19&Itemid=9> Link to my PGP Key

From: Jordan Carter [mailto:jordan at internetnz.net.nz <mailto:jordan at internetnz.net.nz> ] 
Sent: Saturday, October 17, 2015 9:25 AM
To: Desiree Miloshevic <dmiloshevic at afilias.info <mailto:dmiloshevic at afilias.info> >
Cc: Accountability Cross Community <accountability-cross-community at icann.org <mailto:accountability-cross-community at icann.org> >
Subject: Re: [CCWG-ACCT] Summary words from engagement meeting

Thanks Desiree - copying to list for the record and to share your thoughts.

J

On 17 October 2015 at 12:19, Desiree Miloshevic <dmiloshevic at afilias.info <mailto:dmiloshevic at afilias.info> > wrote:

Jordan 

Myself, like Malcolm has said, have come out of our Enforcement model breakout session thinking that in the end there is not a huge advantage of the Sole Membership model

over the Single Designator Model.

However, we should explore other opportunities. For example we have not discussed enough the indirect Enforcement - the spill of the board

as that may end up being a faster and more efficient way than court proceedings, that would, in the end, keep deciding if something is

a fiduciary duty or not regardless of potentially reserved membership statutory powers and regardless of what the board suggests.

Desiree

--

On 17 Oct 2015, at 12:00, Jordan Carter <jordan at internetnz.net.nz <mailto:jordan at internetnz.net.nz> > wrote:

Here are my notes as outlined at the meeting, for the record:

1. We focused on IRP, because PTI would end up in an IRP.

2. IRP enforcement process is the same regardless of the model. If after arbitration award is granted, losing party objects, prevailing party must go to court for enforcement of arbitration award

3. In both models there is a legal person - the sole designator or member - that can be party to IRP if required.

4. In either model, fiduciary duties are important and have the effect of limiting the scope of what can be arbitrated in an IRP setting.

5.  In the member model the board is limited in asserting that its action was protected as a fiduciary business judgment as to community powers reserved to the sole member. (That is, the scope of issues properly subject to arbitration is therefore broader in member model.)

6. Preferences were split among those present between the two models.

7. My personal preference on this dimension angles slightly towards the member model, because it provides for stronger enforceability of the community powers through the IRP or generally - that is, as said, it does that by removing the possibility of ICANN arguing that enforcement of those powers conflicts with fiduciary duties and so cannot be arbitrated.

-- 

Jordan Carter

Chief Executive 
InternetNZ

+64-4-495-2118 <tel:%2B64-4-495-2118>  (office) | +64-21-442-649 <tel:%2B64-21-442-649>  (mob)
Email:  <mailto:jordan at internetnz.net.nz> jordan at internetnz.net.nz 
Skype: jordancarter

Web: www.internetnz.nz <http://www.internetnz.nz/>  

A better world through a better Internet 

_______________________________________________
Accountability-Cross-Community mailing list
Accountability-Cross-Community at icann.org <mailto:Accountability-Cross-Community at icann.org> 
https://mm.icann.org/mailman/listinfo/accountability-cross-community

-- 

Jordan Carter

Chief Executive 
InternetNZ

+64-4-495-2118 <tel:%2B64-4-495-2118>  (office) | +64-21-442-649 <tel:%2B64-21-442-649>  (mob)
Email:  <mailto:jordan at internetnz.net.nz> jordan at internetnz.net.nz 
Skype: jordancarter

Web: www.internetnz.nz <http://www.internetnz.nz>  

A better world through a better Internet 

-- 

Jordan Carter

Chief Executive 
InternetNZ

+64-4-495-2118 (office) | +64-21-442-649 (mob)
Email:  <mailto:jordan at internetnz.net.nz> jordan at internetnz.net.nz 
Skype: jordancarter

Web: www.internetnz.nz <http://www.internetnz.nz>  

A better world through a better Internet 

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20151017/e8c73c58/attachment.html>