[CCWG-ACCT] MEM and enforceability

Chris Disspain ceo at auda.org.au
Tue Sep 22 13:11:57 UTC 2015


+ 100 Avri.

But we still need to follow the paths that will exist to ensure that we understand how they work and what the consequences are.


Cheers,

Chris

> On 22 Sep 2015, at 23:07 , Avri Doria <avri at acm.org> wrote:
> 
> Hi,
> 
> I would prefer that we avoid needing to use the courts for that purpose.
> 
> One of the things I argued for in the development of the CM is that
> relying on the courts would always be as a last resort.  Not the initial
> guarantee.  For the multistakeholder model to work we need to resolve
> the accountability issue within the expanding community as much as possible.
> 
> This easy resort to US courts is something I find problematic.  If the
> Board's response to an disagreement is "take us to court if you don't
> like it," we will have failed.
> 
> avri
> 
> 
> On 22-Sep-15 08:55, Chris Disspain wrote:
>> Avri,
>> 
>> But under the MEM and under the sole member model the ultimate arbiter
>> of that would be the courts in California. No?
>> 
>> 
>> 
>> Cheers,
>> 
>> 
>> Chris
>> 
>> 
>>> On 22 Sep 2015, at 22:51 , Avri Doria <avri at acm.org
>>> <mailto:avri at acm.org>> wrote:
>>> 
>>> Hi,
>>> 
>>> I think that the fiduciary responsibility does not change.  What changes
>>> is whether the Board has unilateral and final control of the meaning and
>>> implications of its fiduciary responsibility  or of the decisions based
>>> upon that vision.
>>> 
>>> avri
>>> 
>>> On 22-Sep-15 08:43, Samantha Eisner wrote:
>>>> Jordan, can you please elaborate more on the “different fiduciary
>>>> duty” situation that you refer?  As I understand it, the fiduciary
>>>> duties of the Board do not change whether a member is present or not.  
>>>> 
>>>> Thanks,
>>>> 
>>>> Sam
>>>> 
>>>> 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 Jordan Carter <jordan at internetnz.net.nz
>>>> <mailto:jordan at internetnz.net.nz>
>>>> <mailto:jordan at internetnz.net.nz>>
>>>> Date: Tuesday, September 22, 2015 at 5:15 AM
>>>> To: Chris Disspain <ceo at auda.org.au <mailto:ceo at auda.org.au>
>>>> <mailto:ceo at auda.org.au>>
>>>> Cc: "Accountability Cross Community
>>>> (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: Re: [CCWG-ACCT] MEM and enforceability
>>>> 
>>>> 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.
>>>> 
>>>> 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.
>>>> 
>>>> On the third, that does seem a sensible time frame constraint...
>>>> 
>>>> best
>>>> Jordan
>>>> 
>>>> 
>>>> On 23 September 2015 at 00:06, Chris Disspain <ceo at auda.org.au
>>>> <mailto:ceo at auda.org.au>
>>>> <mailto: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
>>>> <mailto:dmcauley at verisign.com>
>>>>   <mailto: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 <mailto:jordan at internetnz.net.nz>
>>>> <mailto:jordan at internetnz.net.nz>
>>>> Skype: jordancarter
>>>> Web: www.internetnz.nz <http://www.internetnz.nz>
>>>> <http://www.internetnz.nz>
>>>> 
>>>> /A better world through a better Internet /
>>>> 
>>>> 
>>>> 
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