[CCWG-ACCT] MEM and enforceability

[Jordan Carter]

hi all, hi Chris:

On 23 September 2015 at 00:30, Chris Disspain <ceo at auda.org.au> wrote:

> Hi Jordan,
>
> See below.
>
> Cheers,
>
> Chris
>
> On 22 Sep 2015, at 22:15, Jordan Carter <jordan at internetnz.net.nz> wrote:
>
> Hi Chris, all:
>
> The second is not the same with the single member model. As has been
> outlined on list before, the different fiduciary duties situation that
> exists with membership solves that problem.
>
>
> Yes....still not sure I understand that.
>

It's a critical issue - I think our lawyers will deal with it in a crisp
way in what comes out soon, but if not it has to be teased out.


> In practical terms, is it not correct that in either case the board can
> *claim* that to act would be a breach of fiduciary duty and that in both
> cases that should be appealable and in both cases are the ultimate
> sanctions not the same?
>

The Board can of course claim anything, but there are material differences
in the fiduciary duties it owes in a membership model. It can't claim that
implementing a decision of the member is a breach of those duties, for
example.


>
> In passing, I think there is a longer discussion to be had about the
> shifting of fiduciary duty to a member, not least to whom is that member
> accountable and how can the member be challenged that an act proposed by
> them is outside fiduciary duty.
>

This sounds like a further misunderstanding. Members don't owe fiduciary
duties generally speaking, just as the organisations that would comprise
the member (the SOs and ACs) don't today. The Board's members do. The
existence of a membership system modifies those duties for Board members -
they do not breach fiduciary duties in implementing a decision a member has
made.

This could be a rabbit hole but the point is that the member option has
more flexibility in determining matters and does not create impossibilities
for the Board where it does so. That's a design feature of the choice of
membership.


>
>
> On the first, the plan of the CCWG has been binding not advisory IRP so I
> don't think that it is the same, no.
>
>
> The Board's proposal is also the the arbitration be binding. And David's
> point is not the bindingness but the ability to create a remedy. Is that
> not the same in the CCWG model? It's certainly the impression I have got
> from the discussions with Becky.
>

I'll step away from this - I have deliberately not focused on the IRP, and
so can't offer any further comment here.

best
J


> On the third, that does seem a sensible time frame constraint...
>
>
> I agree and it would be required in both cases.
>
>
> best
> Jordan
>
>
> On 23 September 2015 at 00:06, Chris Disspain <ceo at auda.org.au> wrote:
>
>> Hello David,
>>
>> I appreciate the constructive criticism 😀.
>>
>> Are these points not the same as with the IRP in the sole member model?
>> They would need to be addressed in either case wouldn't they?
>>
>> Cheers,
>>
>> Chris
>>
>> On 22 Sep 2015, at 21:59, McAuley, David <dmcauley at verisign.com> wrote:
>>
>> I appreciate the board’s input and take it as a good faith effort to
>> enhance and evolve the CCWG proposal.
>>
>> However, I have, with respect, three critiques of it.
>>
>>
>>
>> First, the ability to create a remedy if the MEM panel finds against the
>> board is completely within the board’s discretion. Even a slight (even
>> inconsequential) “remedy” would be a remedy and would, effectively, bar any
>> viable avenue to court enforcement.
>>
>>
>>
>> Second, (and this applies to any panel ruling) any decision by the board
>> to state that a ruling against it falls into the area of the board’s
>> fiduciary obligations (thus frustrating implementation of the ruling)
>> should itself be appealable to ensure that this is, in fact, an objectively
>> justified conclusion.
>>
>>
>>
>> And, third, if we went down this path, the board’s ability to create a
>> remedy (subject, I would urge, to some test for reasonableness) should be
>> time-limited so that a claimant need not wait and wonder if it can ever
>> appeal to court.
>>
>>
>>
>> David McAuley
>>
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>>
>
>
> --
> Jordan Carter
>
> Chief Executive
> *InternetNZ*
>
> +64-4-495-2118 (office) | +64-21-442-649 (mob)
> Email: jordan at internetnz.net.nz
> Skype: jordancarter
> Web: 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: jordan at internetnz.net.nz
Skype: jordancarter
Web: www.internetnz.nz

*A better world through a better Internet *
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