[CCWG-ACCT] MEM and enforceability

[Malcolm Hutty]

> On 25 Sep 2015, at 04:54, Samantha Eisner <Samantha.Eisner at icann.org> wrote:
> 
> My understanding of the SMM is that the SMM has, in certain areas, the ultimate right to direct Board action.  These areas are dictated by California law and cannot be limited via the Bylaws.  As a result, once the member makes a determination, while it may invite the Board to express a view, the member's determination is final unless the member changes its mind. Further, particularly in the exercise of statutory rights, there is nothing in the CCWG work to date that suggests that the SMM vote would be subject to Board ratification, and on certain enumerated powers, Board ratification would be legally irrelevant in all events.  It is not clear to me what decisions are being referred to that would “still be made by the Board.”

I think this is true, but only in relation to certain decisions, namely
i) the exercise of the five specific community powers we are granting to the Sole Member; and
ii) notionally, to statutory powers of members (but note that we are effectively removing all but one of these by setting a deliberately impossibly high standard to exercise them). 

So in answer to your question as to "what decisions are being referred to that would “still be made by the Board.”", the answer is "everything, other than the narrowly specific backstop powers of the Sole Member". 

Even in those cases, the level of consensus required to get the Sole Member to act is very high. 

Under the CCWG proposal the Board will continue running the corporation. The idea that the Sole Member would be able to wade in and start overriding Board decisions all over the place, substituting its judgement for that of the Board, is wholly unfounded. 
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