[CCWG-ACCT] Nomenclature re "Empowered Community": ICANN Board comments - Recommendation 3 - Fundamental Bylaws

Seun Ojedeji seun.ojedeji at gmail.com
Wed Jan 27 05:53:33 UTC 2016


Thanks a lot Rosemary that answers my question perfectly.

Regards
On 27 Jan 2016 6:47 a.m., "Rosemary E. Fei" <rfei at adlercolvin.com> wrote:

> Dear Sean and all:
>
>
>
> You are correct.  The power to designate (and correspondingly to remove)
> directors is one of the powers that will be given to the Empowered
> Community in the Bylaws.  You could also say that acting as ICANN’s “sole
> designator” is one of the Empowered Community’s roles in the proposed
> accountability structure, along with other roles and powers that will also
> be given to the Empowered Community in the Bylaws.
>
>
>
> The Empowered Community could be given the other powers (except the
> removal right) without giving it the power to designate directors – those
> other powers can legally be given to any third party, not just one that
> holds designator powers.
>
>
>
> I hope that answers your question.
>
>
>
> Rosemary
>
>
>
> *From:* Seun Ojedeji [mailto:seun.ojedeji at gmail.com]
> *Sent:* Tuesday, January 26, 2016 9:41 PM
> *To:* Holly Gregory
> *Cc:* Thomas Rickert; ACCT-Staff; ICANN-Adler; Sidley ICANN CCWG;
> accountability-cross-community at icann.org; León Felipe Sánchez Ambía;
> Mathieu Weill
> *Subject:* Re: [CCWG-ACCT] Nomenclature re "Empowered Community": ICANN
> Board comments - Recommendation 3 - Fundamental Bylaws
>
>
>
> Thank you Holly for the clarification. This has been my understanding as
> well.
>
> One other thing that I would appreciate if clarified is to know whether
> the "empowered community" is able to carry out the other roles (like
> approval of bylaws et all) because it is the designator or just because it
> is the unincorporated entity setup as the third party to perform those
> roles in the bylaw.
>
> In other words the unincorporated entity doubles as both the designator
> (with the power as described under California law) and the "enhanced
> community" (with the other powers as described in the bylaw).
>
> Regards
>
> On 26 Jan 2016 9:38 p.m., "Gregory, Holly" <holly.gregory at sidley.com>
> wrote:
>
> Dear CCWG-ACCT Co-Chairs, Members, Participants and Staff,
>
>
>
> We have been monitoring the recent discussion on the CCWG-ACCT listserv
> about the use of the terms “community”, “Empowered Community”, and “Sole
> Designator” in the draft Proposal, and we wish to share our understanding
> of these terms.
>
>
>
> We agree that the word “community” as used in the draft
> Proposal encompasses not only ICANN’s Board and all of its SOs and ACs and
> their individual members, but also those who participate in ICANN meetings
> and processes, as explained by Bruce Tonkin in his January 24 email.
>
>
>
> “Empowered Community” is the name to be given to an unincorporated
> association to be created in ICANN’s Bylaws.  This new entity has also been
> described as the “Sole Designator,” but that term -- which arose from the
> new entity’s function as ICANN’s sole designator -- does not adequately
> describe the other important roles for the new entity, which extend well
> beyond the rights given to designators by California corporate law.
> Therefore,  the “Empowered Community” is a more appropriate reference, and
> it has been used interchangeably with “Sole Designator” to date.
>
>
>
> As a global final edit, we recommend using “Empowered Community”
> consistently to refer to the new legal entity, after the first discussion
> of the sole designator concept.
>
>
>
> Kind regards,
>
> Hlly and Rosemary
>
>
>
>
>
> *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] *On Behalf Of *Greg
> Shatan
> *Sent:* Monday, January 25, 2016 11:42 PM
> *To:* Jordan Carter
> *Cc:* accountability-cross-community at icann.org
> *Subject:* Re: [CCWG-ACCT] ICANN Board comments - Recommendation 3 -
> Fundamental Bylaws
>
>
>
> Recommendation 1 states:
>
>
>
> . The entity created using the Sole Designator model will be referred to
> as the “Empowered Community.”
>
> (Summary, Page 1, bullet point 3).
>
>
>
> In other words the Sole Designator is the Empowered Community, and vice
> versa.  You are introducing a dichotomy where none exists.
>
>
>
> Greg
>
>
>
> On Mon, Jan 25, 2016 at 5:39 PM, Jordan Carter <jordan at internetnz.net.nz>
> wrote:
>
> This isn't quite right - as far as I am aware the entity that is the Sole
> Designator will have the right to appoint and remove directors, and be the
> 'third party' that can approve changes to Icann fundamental bylaws or block
> changes to Icann standard bylaws.
>
>
>
> I'm not sure this is a revelation of any sort, or causes any confusion at
> all. These powers along with all the others will be set out in the bylaws,
> as has been the case all along. The only distinguishing feature is that the
> legislation in California gives designators the director rights, and gives
> the right of the articles / bylaws to include third party approvals.
>
>
>
> Even if people are confused about this, there is no problem in substance
> to resolve.
>
>
>
>
>
> Cheers
>
> Jordan
>
>
>
> On Monday, 25 January 2016, Seun Ojedeji <seun.ojedeji at gmail.com> wrote:
>
> Hi Greg,
>
> I don't think we are in disagreement in the substance of all these. It's
> just the naming we are in disagreement upon and I am still of the opinion
> that a designator only has the statutory power to remove/add board members.
>
> All other powers/process we have managed to put in the bylaw may need to
> be called/named something else as they are not made possible because of the
> designator but rather because of the fact that they are now written in the
> bylaw and the board normally would want to respect such a document.
>
> In anycase, unless there is any other change you think has been proposed
> other than giving inspection rights to the community (which you and I are
> in agreement) that affects the current proposal,  I don't see any reason to
> still consider this open as such.
>
> Regards
>
> On 24 Jan 2016 18:02, "Greg Shatan" <gregshatanipc at gmail.com> wrote:
>
> Seun,
>
>
>
> You misunderstand me.  The Designator does more than "enforce" powers.
> Under our proposal, the designator is also the vehicle for *exercising* a
> number of the powers (e.g., approving/rejecting bylaws).  The exercise of
> the new powers by the designator will be a much more common occurrence than
> the enforcement of those powers by removing directors.  I anticipate the
> latter will rarely (if ever) occur, though the fact it can occur is part of
> our accountability framework.  There are other reasons for the Board to
> comply with the community's exercise of its powers, aside from sheer terror
> at being removed.  For one thing, these powers are enshrined in the bylaws,
> and the Board (like any Board) will not take the prospect of violating our
> Bylaws lightly.
>
>
>
> We have had a tendency to overemphasize the enforcement end of things, and
> I think this is one more action in that vein.  Let's try to avoid that.
> Just like our proposal is about far more than "enforcement," so is the
> Single Designator.
>
>
>
> So, no, your statement did not "close this particular item."  Rather, it
> demonstrates exactly why this item is not really closed.
>
>
>
> Greg
>
>
>
> On Sun, Jan 24, 2016 at 10:48 AM, Seun Ojedeji <seun.ojedeji at gmail.com>
> wrote:
>
> On 24 Jan 2016 16:15, "Greg Shatan" <gregshatanipc at gmail.com> wrote:
> >
> > I agree with the result the Board came to (at least in part), but not
> the reasoning.  Each SO or AC should have the right to inspect.  However,
> the role of the Designator is not merely to "add or remove Board members."
> The Designator plays a critical role in the exercise of several of the
> powers, in addition to its role in enforcing those powers via director
> removal.
> >
> SO: I guess Bruce was rightly mentioning the powers of the designator. I
> believe we we will only be getting those powers enforced as a result of the
> "add/remove" power of the designator.
>
> So in summary we don't get enforcement of the various powers because it's
> a role of the designator but on the basis that the designator may use its
> only statutory power, which is to add/remove board members.
>
> I generally agree with the result and would have even preferred that a
> threshold be required for inspection. However, on the basis that each SO/AC
> may need access to certain information to make informed/independent
> decisions, it makes sense to allow such right to each SO/AC.
>
> Hopefully this close this particular item.
>
> Regards
>
>   on Recommendation 1.
> >>
> >> Just to provide a little more context in response to questions on the
> list.
> >>
> >> The role of the designator is to add or remove Board directors.   This
> role is enforceable under California law.
> >>
> >> The inspection right is a right for the ACs and SOs.   An AC or SO can
> exercise this right independently of the legal entity that will be the sole
> designator.     If ICANN doesn't respond to an appropriate request from an
> SO or AC, it would be in breach of its bylaws.   The community can then use
> the IRP to get a binding decision.    In the unlikely event that the Board
> does not comply with the outcome of the IRP decision, then the designator
> has the power to remove Board members.
> >>
> >> In the bylaws we want to make sure that we don't confuse the role of
> the designator (add or remove Board members) with the various roles of the
> SO and ACs in the bylaws.   The bylaws are primarily enforced by the IRP,
> and then the designator (via removal of Board directors) if the IRP is not
> complied with, and then the courts if the decision of the designator is not
> complied with.   This is a clear escalation path that applies to all bylaws.
> >>
> >> Regards,
> >> Bruce Tonkin
> >>
> >> _______________________________________________
> >> Accountability-Cross-Community mailing list
> >> Accountability-Cross-Community at icann.org
> >> https://mm.icann.org/mailman/listinfo/accountability-cross-community
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>
>
> --
> Jordan Carter
> Chief Executive, InternetNZ
>
> +64-21-442-649 | jordan at internetnz.net.nz
>
> Sent on the run, apologies for brevity
>
>
>
>
>
>
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