[CCWG-ACCT] Fwd: [Acct-Legal] Comparison of CCWG CMSM Proposal and ICANN Board MEM Proposal

Thu Sep 24 02:04:06 UTC 2015

Dear All,
Pls find attached my review of Legal Memo with some highliughts as well as
some cut and paste from ICANN Matrix
Regards
Kavouss d

2015-09-23 15:00 GMT+02:00 Gregory, Holly <holly.gregory at sidley.com>:

> Thank you for that feedback, Jorge.  We will consider whether to issue a
> revised draft clarifying the point.
>
>
>
> *HOLLY* *GREGORY*
> Partner
>
> *Sidley Austin LLP*
> +1 212 839 5853
> holly.gregory at sidley.com
>
>
>
> *From:* Jorge.Cancio at bakom.admin.ch [mailto:Jorge.Cancio at bakom.admin.ch]
> *Sent:* Wednesday, September 23, 2015 8:56 AM
> *To:* Gregory, Holly; jordan at internetnz.net.nz;
> accountability-cross-community at icann.org
> *Subject:* AW: [CCWG-ACCT] Fwd: [Acct-Legal] Comparison of CCWG CMSM
> Proposal and ICANN Board MEM Proposal
>
>
>
> Thanks for the prompt reply – however I feel that your Memo is a bit too
> “absolute” in its wording as regards to the exclusion of this specific
> power from the MEM (p.4: “As noted below, the MEM process would not be
> available to challenge a failure by the Board to follow this procedure.”),
> while the Board Matrix is apparently clear in stating that Board actions
> not complying would fall into the MEM (p. 61 Matrix: “*In the event the
> Board fails to abide by these processes, or the community believes that the
> Board has taken a decision in these areas that is inconsistent with the
> Mission and Core Values, **the MEM will provide binding arbitration over
> that issue**. In addition, the community will have the ability to remove
> individual Board Directors or recall the Board*.”)…
>
>
>
> Jorge
>
>
>
> *Von:* Gregory, Holly [mailto:holly.gregory at sidley.com
> <holly.gregory at sidley.com>]
> *Gesendet:* Mittwoch, 23. September 2015 14:29
> *An:* Cancio Jorge BAKOM <Jorge.Cancio at bakom.admin.ch>;
> jordan at internetnz.net.nz; accountability-cross-community at icann.org
> *Betreff:* RE: [CCWG-ACCT] Fwd: [Acct-Legal] Comparison of CCWG CMSM
> Proposal and ICANN Board MEM Proposal
>
>
>
> Thank you for your questions Jorge.  Let me try to quickly respond in the
> interest of resolving the apparent confusion.
>
>
>
> In the Frequently Asked Questions provided by the Board regarding
> community enforceability, see the answer to Q3.
>
>
>
> The point is that outside of  a member context there are limits on what
> powers can be given  to the community in a manner that would be
> enforceable.  That is why we wrote:
>
>
>
> As a legal matter, there is a level of uncertainty arising to doubt that
> Bylaw provisions providing these rights (Budget veto etc) to the community
> as represented by the SOs and ACs would be legally cognizable, let alone
> enforceable, outside of a member context.
>
>
>
> We provided Jones Day and ICANN Legal the long chart yesterday morning for
> comments.  And we greatly appreciate that they provided comments in a short
> period of time, which we reviewed and incorporated based on our judgment.
> Jones Day and ICANN Legal were not provided the opportunity to review the
> memo due to our time constraints but we of course welcome and would value
> their comments.
>
>
>
> Kind regards, Holly
>
> *HOLLY* *GREGORY*
> Partner
>
> *Sidley Austin LLP*
> +1 212 839 5853
> holly.gregory at sidley.com
>
>
>
> *From:* accountability-cross-community-bounces at icann.org [
> mailto:accountability-cross-community-bounces at icann.org
> <accountability-cross-community-bounces at icann.org>] *On Behalf Of *
> Jorge.Cancio at bakom.admin.ch
> *Sent:* Wednesday, September 23, 2015 4:39 AM
> *To:* jordan at internetnz.net.nz; accountability-cross-community at icann.org
> *Subject:* Re: [CCWG-ACCT] Fwd: [Acct-Legal] Comparison of CCWG CMSM
> Proposal and ICANN Board MEM Proposal
>
>
>
> Thanks Jordan, for forwarding these valuable inputs.
>
>
>
> I’m going through the Memos and I just stumbled on an issue where I’m not
> sure whether the Memo reflects or not the Board proposal. On page 4 of the
> “Memorandum” it is said that the community power on budget, strategic and
> operating plan is “not subject to binding arbitration under the Board
> proposal” – but on page 61 of the Board Matrix it is affirmed that “*In
> the event the Board fails to abide by these processes, or the community
> believes that the Board has taken a decision in these areas that is
> inconsistent with the Mission and Core Values, **the MEM will provide
> binding arbitration over that issue**. In addition, the community will
> have the ability to remove individual Board Directors or recall the Board*
> .”
>
>
>
> Am I missing something?
>
>
>
> And, this leads me to a more general question: at the beginning of the
> Memo it is stated that Jones Day was consulted in order to avoid
> misunderstandings – did they reply and confirm that there were none?
>
>
>
> Thanks and regards
>
>
>
> Jorge
>
>
>
> *Von:* accountability-cross-community-bounces at icann.org [
> mailto:accountability-cross-community-bounces at icann.org
> <accountability-cross-community-bounces at icann.org>] *Im Auftrag von *Jordan
> Carter
> *Gesendet:* Mittwoch, 23. September 2015 06:20
> *An:* Accountability Cross Community <
> accountability-cross-community at icann.org>
> *Betreff:* [CCWG-ACCT] Fwd: [Acct-Legal] Comparison of CCWG CMSM Proposal
> and ICANN Board MEM Proposal
>
>
>
> Hi all - forwarded to get this to you ASAP, not sure who was meant to.
>
> J
>
>
>
> ---------- Forwarded message ----------
> From: *Gregory, Holly* <holly.gregory at sidley.com>
> Date: 23 September 2015 at 14:04
> Subject: [Acct-Legal] Comparison of CCWG CMSM Proposal and ICANN Board MEM
> Proposal
> To: "thomas at rickert.net" <thomas at rickert.net>, "mathieu.weill at afnic.fr" <
> mathieu.weill at afnic.fr>, León Felipe Sánchez Ambía <leonfelipe at sanchez.mx>,
> "ccwg-accountability5 at icann.org" <ccwg-accountability5 at icann.org>, Alice
> Jansen <alice.jansen at icann.org>, Grace Abuhamad <grace.abuhamad at icann.org>
> Cc: Sidley ICANN CCWG <sidleyicannccwg at sidley.com>, ICANN-Adler <
> ICANN at adlercolvin.com>
>
> Dear Co-Chairs, Members and Participants of CCWG,
>
>
>
> Attached please find three documents to assist in preparation for our
> meeting in L.A.:
>
>
>
> ·         A memo from Sidley and Adler with our high level observations
> regarding comparison between the Board Proposal and the CCWG Proposal.
>
> ·         A Summary Comparison of Key Characteristics of CMSM Model and
> Board Proposal – this or something along these lines will be expanded out
> in the next several days to include the Sole Designator model as requested
> on today’s call
>
> ·         Comparison of CCWG 2nd Draft Proposal (Community Mechanism as
> Sole Member) and ICANN Board Proposal (Comparison)
>
> We look forward to seeing you in L.A.,
>
>
>
> Holly and Rosemary
>
>
>
> *HOLLY* *J. GREGORY*
> Partner and Co-Chair
> Global Corporate Governance & Executive Compensation Practice
>
> *Sidley Austin LLP*
> +1 212 839 5853
> holly.gregory at sidley.com
>
>
>
>
>
>
>
>
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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
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