[CCWG-ACCT] Your public comment re replacement of IANA provider

[Phil Corwin]

Bruce:

In regard to--
	>>  -Does Board's ability to refuse to comply with IRP or MEM based upon the law be limited to fiduciary duty considerations or is it 	potentially broader?

	Well I am not a lawyer - but I would assume it includes fiduciary duty considerations as well as that we need to comply with the law.   The 	CCWG proposal had the language "to the extent permitted by law", and the Board agreed - so I assume that language came from the 	CCWG's legal counsel.     Can you give an example of a situation where the community would want ICANN to breach the law?

--of course I would never advocate that ICANN the corporation or its Board breach the law. But the ultimate arbiter of what is lawful, both as to relevant statutes as well as compliance with its AOI and Bylaws, is the judiciary. We cannot put ultimate trust in the judgment of private counsel for ICANN, or for those bringing a complaint. 

After all, it was not that long ago that ICANN legal circulated a memo during an ICANN meeting asserting that binding accountability for the community was not achievable under CA law. But then it turned out that it was, if you established a membership model. It appears that the SMM works from a legal standpoint, and one big question for CCWG, among many, is whether MEM would also have the requisite standing. 

In addition, in the Memo on Proposed Approach for Community Enforceability, it says:
	Possible Outcomes of MEM Arbitration: A MEM arbitration will result in a decision declaring that the challenged Board decision or action 	did or did not comply with ICANN's Fundamental Bylaws. The decision will be binding on the Board and subject to any appeal to the full 	Standing Panel. If the Board is found to have violated a Fundamental Bylaw, the Board is required to remedy that violation, within the 	Board's discretion. If the Board fails to remedy a violation, the MEM Issue Group may enforce the arbitration decision in the California 	courts.

I am a lawyer, and the phrase " the Board is required to remedy that violation, within the Board's discretion" would appear to encompass a range of discretion in fashioning a remedy that goes beyond lawfulness considerations or fiduciary obligations. Further, even if those who brought the action were dissatisfied with the remedy fashioned by the Board, it is not clear that they would have any access to judicial review because the Board would not have failed to "remedy" the violation.

I'm not trying to be picky, but it is very important to understand how these words would actually be implemented in practice.

Best, Philip 

Philip S. Corwin, Founding Principal
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-----Original Message-----
From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Bruce Tonkin
Sent: Friday, September 18, 2015 8:35 PM
To: accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] Your public comment re replacement of IANA provider

Hello Phil,

>>   What you seem to be saying is that if the Board does not follow an 
>> IRP decision, then direct access to court enforcement would not exist

Well firstly I think it is highly unlikely that the board would not follow an IRP decision.

Speaking personally I don't see why you couldn't go to court enforcement for a binding IRP decision.

>>  -What is the rationale for having MEM apply as an initial accountability mechanism only to Fundamental Bylaws?

I think the rationale was to create something purpose built for the broader community to dispute a decision by the Board.   The rules of this mechanism could be adjusted over time to suit the community situation, compared to the situation of a single company.   In some cases companies may use the dispute process simply to create a delay and a commercial advantage - so the rules for disputes could be different for the community versus single companies.   The assumption I guess was that it would most likely be fundamental bylaws that would result in the community as a whole wanting to go to dispute resolution.



>>  -Would the IRP in a post-transition world be advisory or binding upon the Board?

Yes it would be binding as per the CCWG proposal.    See our response in section 14 of the matrix.   As noted earlier the Board is broadly supportive of the improvements to the IRP.

>>  -Does Board's ability to refuse to comply with IRP or MEM based upon the law be limited to fiduciary duty considerations or is it potentially broader?

Well I am not a lawyer - but I would assume it includes fiduciary duty considerations as well as that we need to comply with the law.   The CCWG proposal had the language "to the extent permitted by law", and the Board agreed - so I assume that language came from the CCWG's legal counsel.     Can you give an example of a situation where the community would want ICANN to breach the law?

Regards,
Bruce Tonkin


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