[CCWG-ACCT] Decision making versus comply with the law

Tue Oct 20 05:31:51 UTC 2015

I see that the separation process ties this decision to a policy-making process but it is very unclear how that fits in to the exercise of fiduciary duty in the decision.  In addition, very unclear where GAC public policy advice would come in to the PTI separation decision.

Mind-boggling...

Sent from my Verizon 4G LTE Tablet

------ Original message------

From: Aikman-Scalese, Anne

Date: Tue, Oct 20, 2015 1:20 AM

To: Bruce Tonkin;CCWG Accountability;

Cc:

Subject:Re: [CCWG-ACCT] Decision making versus comply with the law

Bruce, these are good points as far as they go, but the 5 enumerated community powers are not about the policy-making process.  That process is separate and distinct from the community powers under disccussio.   In addition, what would be binding in arbitration, as I understand it, would be whether the Board violated the Articles , ByLaws, or its fiduciary duties when making the decision .  That is not always the same issue as whether the decision is right for the Community,

What we know from experience is that the Directors have a fidciary duty to the corporation itself.  As I understand the legal advice, whether that duty was breached is the narrow inquiry in the scope of binding arbitration in the Sole Designator Model.  Therefore, unless the lawyers can find a way to craft Articles that create a fiduciary duty to implement Community decisions as to the 5 powers, or to create some sort of fiduciary duty to the Community in respect of these 5 powers, the Community may only effectively enforce at the top of the stairway via removal of the Board without requiring cause.

It seems to me that removing the entire Board is very unlikely. It would be extremely disruptive. So, for example, in relation to PTI separation, the Board would have to decide, in the exercise of its fiduciary duty, whether PTI separation would be the best thing for the corporation.  In fact it would be bound to do so.  That is not likely the same inquiry or analysis the Community would be making.  It would be asking a different question, e g is it better for the global public interest if PTI is separated?

This question could create a conflict for the Board in the exercise of its duties.

What if it is better for ICANN the corporation if PTI is not separated but more in the global public interest for the Internet Community if PTI is separated?

And is there a way to account for this possible difference in standard for exercise of fiduciary duty by modifying the Articles of Incorporation that would make the Sole Designator Model work more efficiently at the IRP stage (without having to remove the whole Board) as regards enforcement in relation to this particular issue?

Anne

(Not a CA lawyer)

Sent from my Verizon 4G LTE Tablet

------ Original message------

From: Bruce Tonkin

Date: Mon, Oct 19, 2015 1:48 PM

To: CCWG Accountability;

Cc:

Subject:[CCWG-ACCT] Decision making versus comply with the law

Just to reiterate my comments.

(1) Obeying the law

- the Board must obey the law - whether it is national laws or our bylaws

- we have an IRP process for the community to use if we break our bylaws

- the outcome of the IRP will be binding, and will be enforceable in court

- which again comes back to obeying the law

(2) Decision making

- we have a shared decision making process in the bylaws

- the SOs and cross-community working groups make policy recommendations to the Board

 - the board can make a decision by 2/3 majority to reject such recommendations - which hasn't happened since ICANN started 16 years ago

- for bylaws changes and separation etc - both the Board and the community must decide

- if you don't think the Board makes good decisions then

        -  elect/appoint better directors

        - every year you have the opportunity to replace 1/3 of directors

        - with both the designator and member models you can remove individual board members and the whole board at any time

Regards,
Bruce Tonkin

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