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

Kavouss Arasteh kavouss.arasteh at gmail.com
Wed Jan 27 22:14:43 UTC 2016 

Dear Jordan,
Yes I have already agreed to your views but there are two other  parties
 at each extereme side that should agree . That is why I asked Lawyers to
shed some light with a view that every body would be clear.
Kavouss

2016-01-27 21:56 GMT+01:00 Greg Shatan <gregshatanipc at gmail.com>:

> 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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>>>>>>>
>>>>>>
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>>>>>>
>>>>>>
>>>>>
>>>>> _______________________________________________
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>>>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>>>
>>>>>
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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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