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

Greg Shatan gregshatanipc at gmail.com
Wed Jan 27 20:56:20 UTC 2016


Jordan,

Succinct and accurate.  Thank you.

I will just emphasize and reiterate one part of your message:  The
Empowered Community "has all the powers we will give it through the ICANN
bylaws" including the power to appoint and remove directors.  Since this
last power is defined by California statute as the "designator" right, we
have been calling the "Empowered Community" the "Sole Designator," and vice
versa.

If one wants to see the "powers" of the Empowered Community/Sole Designator
Entity (ECSDE?) one just needs to look at the community powers in our
proposal.  Where the community comes together (more or less) as one, that's
the ECSDE.

Of course, we should come up with a better name for this and use only one
name rather than two, which has sowed confusion.  One suggestion:  Good Old
Legal Empowerment Mechanism (GOLEM).

I feel this is all clear.

Greg

On Wed, Jan 27, 2016 at 3:31 PM, Jordan Carter <jordan at internetnz.net.nz>
wrote:

> Dear all, dear Kavouss
>
> I don't feel any questions on my part are missing.
>
> I am clear and I think from this whole thread, it is clear to everyone
> that there is one entity - the Empowered Community.  It is established as
> an unincorporated association, and it has all the powers we will give it
> through the ICANN bylaws. One of those powers is appointment and removal of
> directors. It can back those powers up in Court if need be because it is
> recognised as a Designator under the law of California.
>
> So: the powers are set out in the bylaws as per our report. The single
> entity is the Empowered Community. It is the Sole Designator.
>
> I'm happy and don't need any legal input, and my reading is that we are
> all on the same page.
>
>
> bests
> Jordan
>
>
> On 28 January 2016 at 03:44, Kavouss Arasteh <kavouss.arasteh at gmail.com>
> wrote:
>
>> Dear Holly
>> No ,you have not said any thingabout the claim of Some people providing
>> all and every power for the " Empowred Community"/" Sole Designator "
>> versus what Bruce said and versus what Jordan said ( with which I fuklly
>> agreed ) .
>> You said the following
>> Quote
>> "* 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*"
>> Unquote
>> The wexpression / part of what you have said  " which extend well beyond
>> the rights given to designators by California corporate law"
>> This portion is totally vague and does not any thing as requested
>> Pls kindly and specifically , if you wish and if you respect me what is
>> the role, responsibilities and authorities of the  " *Empowred
>> Community"/" Sole Designator " in regard *with what contained in the
>> Article of incorporation, and proposed Bylaws.
>> As you have noted the views of ICANN is ,for instance, right of ispection
>> is reserved for the COMMUNITY AND NOT the Sole designtor . See read ICANN
>> Comments ( Bruce as well ), Grec's Comments and Jordan Comments
>> Regards
>> Kavouss
>>
>> 2016-01-27 15:20 GMT+01:00 Seun Ojedeji <seun.ojedeji at gmail.com>:
>>
>>> Hello Kavous,
>>>
>>> I don't understand what other study is required in this. The lawyers
>>> have provided the clarification required(indicating theroles and the
>>> relevant vehicles to exercise them) and if the 3 you mentioned have a
>>> different opinion then they would have indicated it (I note that Greg
>>> already acknowledged the response from legal).
>>>
>>> I don't think there is need(neither is it economical) to further utilise
>>> legal hours on this unless you specifically indicate what area is not clear
>>> to you as a person (which is yet to be explained).
>>>
>>> Regards
>>> On 27 Jan 2016 14:58, "Kavouss Arasteh" <kavouss.arasteh at gmail.com>
>>> wrote:
>>>
>>>> Dear Holly
>>>> Dear  Rosemary
>>>> Thank you very much for definition
>>>> However, the problem that was raised was not the definition but the
>>>> scope of responsibility and mandate
>>>> There were three options
>>>> View one; From Bruce
>>>> View Two  FromGrec
>>>> View three;From Jordan
>>>> Please kindly carefully study these three and comment in favour of one
>>>> or other or a combination of those three.
>>>> The three designator came first from you in APRIL 2015
>>>> tHE eMPOWERED cOMMUNITY CASE FROM THE ccwg discussion.
>>>> I agree that the latter is more appropriate but the problem raised was
>>>> different as described above.
>>>> Either you wish to reply or not but please kindly reply to the question
>>>> raised
>>>> Regards
>>>> Kavouss
>>>>
>>>>
>>>>
>>>> 2016-01-27 6:53 GMT+01:00 Seun Ojedeji <seun.ojedeji at gmail.com>:
>>>>
>>>>> 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
>>>>>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMFaQ&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=du2OD2nYZAU6l2XqEbv_LKsFVqwjXyksiXMKhZ3VDQk&s=v4A3ZwzM9FERJEYcFy5L5NNJvUY3v00O8niOIrVLuSg&e=>
>>>>>> >
>>>>>> >
>>>>>> >
>>>>>> > _______________________________________________
>>>>>> > Accountability-Cross-Community mailing list
>>>>>> > Accountability-Cross-Community at icann.org
>>>>>> >
>>>>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>>>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMFaQ&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=du2OD2nYZAU6l2XqEbv_LKsFVqwjXyksiXMKhZ3VDQk&s=v4A3ZwzM9FERJEYcFy5L5NNJvUY3v00O8niOIrVLuSg&e=>
>>>>>> >
>>>>>>
>>>>>>
>>>>>>
>>>>>>
>>>>>>
>>>>>> --
>>>>>> 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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>>>>>
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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
> Skype: jordancarter
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