[CCWG-ACCT] MEM and enforceability

Tue Sep 22 13:55:24 UTC 2015

+1 to this mindset of resolving issues out of courts, and most importantly
that there seem to be some level of agreement that either versions would
ultimately require going to court when all the options to mediate with
board in following it's bylaw (including fundamental) fail.

It still brings me to wonder what the community power goal is; to get the
board to follow the community's will or to get them to follow the community
approved bylaws. If for the later, the question then is whether either of
the models can achieve that? From all indications it seem to be a yes for
both.

Based on this, would it not then be strategic enough to go for the model
that achieves less structural change in ICANN since that is not the goal of
this working.

Regards

Sent from my Asus Zenfone2
Kindly excuse brevity and typos.
On 22 Sep 2015 14:09, "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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> >>>>    Accountability-Cross-Community at icann.org
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> >>>>    <mailto:Accountability-Cross-Community at icann.org>
> >>>>
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> >>>
> >>>
> >>>
> >>> --
> >>> Jordan Carter
> >>>
> >>> Chief Executive
> >>> *InternetNZ*
> >>>
> >>> +64-4-495-2118 (office) | +64-21-442-649 (mob)
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> >>>
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