[CCWG-ACCT] Fwd: [Acct-Legal] Comparison of CCWG CMSM Proposal and ICANN Board MEM Proposal
Kavouss Arasteh
kavouss.arasteh at gmail.com
Thu Sep 24 15:49:31 UTC 2015
Dear Malcolm
Thanks for the analysis.
I raised the same issue in different manner in my preliminary review that I sent last night to CCWG,
The Board, s MEM and its relation with standing IRP panel in regard with the stepwise procedural and enforcement and standing is totally vague
I also raised the issue in my comment to legal team Memo a. copy of which was also sent to CCWG last night
I raised several other legal, procedural and workability issues in my comments
Regards
Kavouss
Sent from my iPhone
> On 24 Sep 2015, at 07:20, Gregory, Holly <holly.gregory at sidley.com> wrote:
>
> You raise a good point Malcolm. Sorry we won't see you in LA.
>
>
>
> Sent with Good (www.good.com)
>
> From: Malcolm Hutty
> Sent: Thursday, September 24, 2015 03:31:26 AM
> To: Gregory, Holly; 'Jorge.Cancio at bakom.admin.ch'; jordan at internetnz.net.nz; accountability-cross-community at icann.org
> Cc: Sidley ICANN CCWG; ICANN at adlercolvin.com
> Subject: Re: [CCWG-ACCT] Fwd: [Acct-Legal] Comparison of CCWG CMSM Proposal and ICANN Board MEM Proposal
>
>
> First, a big "thank you" to our counsel for another valuable piece of work.
>
> There is just one thing I would like to add. In all our discussions of
> the enforceability question, there is a continuing focus on the
> enforcement of the *outcome* of arbitration procedures. I believe we
> also need to pay attention to the enforcement of the *availability* of
> those procedures.
>
> In our proposed reforms, the main accountability tool is the arbitration
> of disputes through the IRP. What would happen if ICANN refused to
> submit to binding arbitration through the IRP in a particular case?
>
> -> Under the CCWG proposal, the Sole Member could enforce the
> availability of the IRP, by bringing a derivative action to obtain a
> court order to instruct ICANN to enter the IRP.
>
> -> Under the Board proposal, the Sole Member would not be available. It
> appears that in these circumstances the SOACs could initiate the MEM.
> This just iterates the same question to another level.
>
> The Board proposal raises a new form of arbitration, the MEM. This begs
> the question, *what would recourse would be available if ICANN refuses
> to enter into binding arbitration with an MEM issue group?*
>
> There are various pretexts it might offer for such a refusal. For
> example, it could deny that an MEM Issue Group had been validly formed.
> Or it could assert that the dispute fell outside the narrow parameters
> of matters that may be considered by the MEM.
>
> For example, consider the following scenario:
>
> Step 1: Someone tries to initiate an IRP
> Step 2: ICANN refuses to enter an IRP. ICANN asserts that the Board has
> acted as required by its fiduciary duty, so an IRP is moot.
> Step 3: An MEM Issue Group is formed to challenge ICANN's refusal to
> enter into the IRP as promised by a Fundamental Bylaw.
> Step 4: The MEM Issue Group considers that ICANN's refusal is
> inconsistent with the IRP Fundamental Bylaw. It decides to invoke the
> MEM Standing Panel to arbitrate.
> Step 5: ICANN refuses to submit to binding arbitration before the MEM
> Standing Panel. It asserts that the MEM Issue Group's position boils
> down to disagreeing with how the Board saw its fiduciary duty, which it
> says lies outside the scope of the MEM. Accordingly, ICANN refuses to
> appear before the MEM Standing Panel.
>
> What recourse would be available in such circumstances, and to whom
> would it be available?
>
> If there be no recourse in such a situation, as it appears to me, then
> this would be a significant accountability gap.
>
> I would ask that our lawyers address in any future review the question
> of the enforcement of the *availability* of arbitration as well as the
> enforcement of the *outcome* of arbitration.
>
> I am sorry that I will not be able to come to Los Angeles on this
> occasion due to pre-existing commitments, but I wish all participants well.
>
> Kind Regards,
>
> Malcolm.
>
> On 23/09/2015 14:00, Gregory, Holly wrote:
> > 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 <mailto: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]
> > *Gesendet:* Mittwoch, 23. September 2015 14:29
> > *An:* Cancio Jorge BAKOM <Jorge.Cancio at bakom.admin.ch
> > <mailto:Jorge.Cancio at bakom.admin.ch>>; jordan at internetnz.net.nz
> > <mailto:jordan at internetnz.net.nz>;
> > accountability-cross-community at icann.org
> > <mailto: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 <mailto:holly.gregory at sidley.com>
> >
> >
> >
> > *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
> > *Jorge.Cancio at bakom.admin.ch <mailto:Jorge.Cancio at bakom.admin.ch>
> > *Sent:* Wednesday, September 23, 2015 4:39 AM
> > *To:* jordan at internetnz.net.nz <mailto:jordan at internetnz.net.nz>;
> > accountability-cross-community at icann.org
> > <mailto: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>
> > [mailto: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
> > <mailto: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
> > <mailto: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 <mailto:thomas at rickert.net>" <thomas at rickert.net
> > <mailto:thomas at rickert.net>>, "mathieu.weill at afnic.fr
> > <mailto:mathieu.weill at afnic.fr>" <mathieu.weill at afnic.fr
> > <mailto:mathieu.weill at afnic.fr>>, León Felipe Sánchez Ambía
> > <leonfelipe at sanchez.mx <mailto:leonfelipe at sanchez.mx>>,
> > "ccwg-accountability5 at icann.org <mailto:ccwg-accountability5 at icann.org>"
> > <ccwg-accountability5 at icann.org
> > <mailto:ccwg-accountability5 at icann.org>>, Alice Jansen
> > <alice.jansen at icann.org <mailto:alice.jansen at icann.org>>, Grace Abuhamad
> > <grace.abuhamad at icann.org <mailto:grace.abuhamad at icann.org>>
> > Cc: Sidley ICANN CCWG <sidleyicannccwg at sidley.com
> > <mailto:sidleyicannccwg at sidley.com>>, ICANN-Adler <ICANN at adlercolvin.com
> > <mailto: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 2^nd 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 <tel:%2B1%20212%20839%205853>
> > holly.gregory at sidley.com <mailto:holly.gregory at sidley.com>
> >
> >
> >
> >
> >
> >
> >
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> >
> > --
> >
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> >
> > Chief Executive
> > *InternetNZ*
> >
> >
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