[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
>>>>>
>>>>> _______________________________________________
>>>>> Accountability-Cross-Community mailing list
>>>>> Accountability-Cross-Community at icann.org
>>>>> <mailto:Accountability-Cross-Community at icann.org>
>>>>> <mailto:Accountability-Cross-Community at icann.org>
>>>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>>
>>>> _______________________________________________
>>>> Accountability-Cross-Community mailing list
>>>> Accountability-Cross-Community at icann.org
>>>> <mailto: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 (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 /
>>>>
>>>>
>>>>
>>>> _______________________________________________
>>>> 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
>>>
>>>
>>> ---
>>> This email has been checked for viruses by Avast antivirus software.
>>> https://www.avast.com/antivirus
>>>
>>> _______________________________________________
>>> Accountability-Cross-Community mailing list
>>> Accountability-Cross-Community at icann.org
>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>
>
>
> ---
> This email has been checked for viruses by Avast antivirus software.
> https://www.avast.com/antivirus
>
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20150922/376eb0ac/attachment.html>
More information about the Accountability-Cross-Community
mailing list