[CCWG-ACCT] Open ALAC Issues

Wed Jan 27 21:07:51 UTC 2016

I apologise for my overenthusiastic rush to completely agree with Chris -
the part I thought was completely right is that this issue has been
resolved satisfactorily.

Greg, your explanation is as ever lucid, clear, and comprehensive (but not
excessive).

:-)

Jordan

On 28 January 2016 at 10:05, Greg Shatan <gregshatanipc at gmail.com> wrote:

> I don't think Chris is quite right, though he's close.  We are not heading
> back to anything.  A basic premise of the Third Draft Proposal is that
> there will be a legal entity -- an unincorporated association that will be
> the tool by which the community  exercises the Community Powers *after* a
> decision is made to do so by the participating SO/ACs.
>
> But individuals will not themselves provide legal personhood -- that is
> accomplished through the unincorporated association (the Empowered
> Community/Single Designator Entity (ECSDE) (or GOLEM, if you prefer that
> acronym)).
>
> I suppose there is one open question, which is the process by which the
> unincorporated association is set up, and whether any legal or natural
> persons need to be involved in that.  I believe it is clear that a SO/AC
> can be a decisional entity without having any legal or natural persons
> involved in setting up the unincorporated association/ECSDE/GOLEM entity.
>
> Greg
>
> On Wed, Jan 27, 2016 at 3:36 PM, Jordan Carter <jordan at internetnz.net.nz>
> wrote:
>
>> Chris is completely right. The UA doesn't make decisions - it acts only
>> on the instructions of the SOs and ACs. It has to have one or two humans
>> (or entities) as members to exist, but they won't have the decision rights.
>>
>> I am sure that the lawyers can point to their memos that set this all out
>> in depth. It was discussed in great detail in the middle of 2015, and
>> resolved....
>>
>>
>> bests
>> Jordan
>>
>>
>> On 28 January 2016 at 09:25, Chris Disspain <ceo at auda.org.au> wrote:
>>
>>> Hello All,
>>>
>>> I thought the basis of the model was that either each so/ac would
>>> appoint a person to be the legal persons or a small number of nominated
>>> individuals (2 was discussed I think) would provide the required legal
>>> personhood but would not be empowered to do anything without instruction
>>> from the so/acs. We now seem to be heading back to a requirement that
>>> so/acs for lead entities in some way which is challenging for some to say
>>> the least!
>>>
>>> Could we please get clarity on where we are at with this?
>>>
>>>
>>> Cheers,
>>>
>>>
>>> Chris
>>>
>>> On 28 Jan 2016, at 05:16 , Nigel Roberts <nigel at channelisles.net> wrote:
>>>
>>> I don't mean to be pedantic about this, but are the SOs and ACs also
>>> going to be constituted as UAs???
>>>
>>> Otherwise, I see an issue -- surely to form the EC as a UA, the members
>>> of the UA need to be persons (whether natural or legal matters not).
>>>
>>> So it seems to me that all the SOs and ACs need to have legal
>>> personality.
>>>
>>> Or will the members of the EC just be the Chairs of the SOs and ACs in a
>>> personal capacity??
>>>
>>>
>>>
>>>
>>> On 27/01/16 18:11, Gregory, Holly wrote:
>>>
>>> We agree that the language that ALAC points to (reproduced directly
>>> below)  could be clarified:
>>>
>>> “ 3. On page 14, item 2 of the draft proposal (and on page 5 of Annex
>>> 1), it says "The members of the unincorporated association would be
>>> representatives of ICANN's Supporting Organizations and Advisory
>>> Committees that wish to participate." We have never discussed how
>>> such members are identified. Presumably we should to specify that
>>> each participating AC/SO must identify who it's representative will be.”
>>>
>>> The notion is that some persons are needed to ensure that the decisions
>>> of the Empowered Community are implemented.  While the participating SOs
>>> and ACs will be members of the unincorporated association,  each
>>> participating SO and AC should have a representative ,  and for
>>> simplicity we recommend that in each instance it be the chair of the AC
>>> or SO.  We have addressed this notion in our memo about implementation
>>> of the unincorporated association, which we circulated a link to last
>>> week in our high level comments regarding the IRP.
>>>
>>> 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 <mailto:holly.gregory at sidley.com
>>> <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
>>> *Seun Ojedeji
>>> *Sent:* Wednesday, January 27, 2016 9:47 AM
>>> *To:* Kavouss Arasteh
>>> *Cc:* accountability-cross-community at icann.org
>>> *Subject:* Re: [CCWG-ACCT] Open ALAC Issues
>>>
>>> Well even if we don't need it now. It will be good to recognise that
>>> it's yet to be discussed. However considering that the UA is required
>>> once board approves the proposal then it may be good to determine and
>>> conclude on this soon enough.
>>>
>>> That said, it may be good to be sure that those member representatives
>>> have no power to act unilaterally. I would have thought using 1 stone to
>>> kill to birds will be good i.e making the various chairs/leaders of
>>> SO/AC to serve is such capacity. That gives some level of responsibility
>>> and security on that various SO/AC can always boot out their leader
>>> whenever required.
>>>
>>> Regards
>>>
>>> On 27 Jan 2016 15:02, "Kavouss Arasteh" <kavouss.arasteh at gmail.com
>>> <mailto:kavouss.arasteh at gmail.com <kavouss.arasteh at gmail.com>>> wrote:
>>>
>>> Dear All,
>>>
>>> I think people contuinue to go to the last milimiter of the road and
>>> generate a new discussion and debate about the number of représentatives
>>> in Unincorprated associattion  représentatives and start a new round of
>>> bebates and dispute
>>>
>>> Do we need this information now pls ?
>>>
>>> Kavouss
>>>
>>> 2016-01-27 6:14 GMT+01:00 Alan Greenberg <alan.greenberg at mcgill.ca
>>> <mailto:alan.greenberg at mcgill.ca <alan.greenberg at mcgill.ca>>>:
>>>
>>> As per my comment in the CCWG meeting earlier today, here is a list of
>>> the issues still to be resolved from the ALAC statement on the 3rd Draft
>>> Proposal.
>>>
>>>
>>> There are three issues currently under discussion.
>>>
>>> 1. ICANN Mission and ensuring that contract provisions will not be
>>> invalidated or be unenforceable.
>>>
>>> 2. The issue regarding market mechanisms.
>>>
>>> 3. Human Rights (original issue resolved but pending final wording).
>>>
>>>
>>> Issues to be addressed.
>>>
>>>
>>> 1. The first is a relatively trivial one and easily addressed. Rec# 4,
>>> in the section on replacing the Interim Board states:
>>>
>>> "SOs, ACs, and the Nominating Committee will develop replacement
>>> processes that ensure the Interim Board will not be in place for more
>>> than 120 days."
>>>
>>> The ALAC request that this be changed to:
>>>
>>> "SOs, ACs, and the Nominating Committee will develop processes designed
>>> to replace Interim Board members within 120 days."
>>>
>>> By removing the word "ensure", this change, while not altering the
>>> intent, goes along with the recent practice of not putting hard
>>> deadlines in the Bylaws, deadlines that for one reason or another may
>>> not be met in a particular instance.
>>>
>>>
>>> 2. Rec# 10, AoC. The Recommendation suggests that as part of
>>> organizational reviews, the AC/SO's accountability be included in the
>>> review. The ALAC suggests that this be enshrined in Article IV, Section
>>> 4.1 of the ICANN Bylaws.
>>>
>>>
>>> 3. On page 14, item 2 of the draft proposal (and on page 5 of Annex 1),
>>> it says "The members of the unincorporated association would be
>>> representatives of ICANN's Supporting Organizations and Advisory
>>> Committees that wish to participate." We have never discussed how such
>>> members are identified. Presumably we should to specify that each
>>> participating AC/SO must identify who it's representative will be.
>>>
>>>
>>>
>>>
>>>
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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
>> Web: www.internetnz.nz
>>
>> *A better world through a better Internet *
>>
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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
Web: www.internetnz.nz

*A better world through a better Internet *
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