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

Wed Jan 27 23:39:03 UTC 2016

Thanks all - very clear

Jordan

On 28 January 2016 at 12:36, Rosemary E. Fei <rfei at adlercolvin.com> wrote:

> Dear Co-Chairs, Kavouss, and All:
>
>
>
> And here is the response referred to in Holly’s email below.  (If it looks
> familiar, it’s because Holly and I accidentally included the list in our
> counsel-to-counsel emails drafting it.  Please ignore the little man behind
> the curtain.)
>
>
>
> In response to your request that we more specifically address the points
> made by Bruce and commented on by Greg, Jordan and others, we comment as
> follows:
>
>
>
> ·        We agree with Bruce’s broad concept of the term “community” to
> mean “the aggregate of all those that attend ICANN meetings either
> physically (attending face-to-face meetings) or virtually (members of
> mailing lists, contributors to online forums etc). This also includes all
> the members of the constituency bodies – the RIRs, the SOs, the stakeholder
> groups, constituencies, the advisory committees etc.”   And this concept
> would include the Board and its members and the CCWG-ACCT and its members,
> etc.  (We see this as a conceptual description and not a formal
> definition.  As a definition it would need word-smithing. )
>
>
>
> ·        Bruce is also partially correct in describing the Empowered
> Community as “a  construct in the bylaws similar to the construct for SOs
> and ACs”, but it is different from the ACs and SOs in that the Empowered
> Community will be expressly created in the bylaws as an unincorporated
> association to ensure that it has the legal personhood needed to enforce
> its legal rights.  One of the sets of rights it will have will relate to
> its role as the sole designator.
>
>
>
> ·        Therefore, Greg is correct in stating that, as described in the
> Third Proposal, “[T]he entity [meaning the unincorporated association]
>  created using the Sole Designator model will be referred to as the
> ‘Empowered Community.’”  (Third Proposal Summary, Page 1, bullet point 3).
> The Bylaws will give the Empowered Community the power to designate ICANN’s
> directors (which is permitted by California statute, and which power, by
> statute, brings with it the corresponding right to remove them), giving the
> Empowered Community the role of ICANN’s “sole designator.” (The Empowered
> Community will only designate or remove directors as directed by the SOs
> and ACs and the Nominating Committee following the procedures described in
> the CCWG proposal which will be drafted into the Bylaws, thereby
> implementing each group’s specific role in naming directors.)
>
>
>
> ·        The Empowered Community, in addition to being sole designator,
> will have the powers proposed by the CCWG to be provided in the Bylaws:
> approval of standard and fundamental Bylaws, etc., etc., and enforcement
> rights.  Acting as ICANN’s “sole designator” is thus only 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.
>
>
>
> ·        Given that the Empowered Community will be organized as an
> unincorporated association and take on -- but not be limited to -- the role
> of sole designator, Bruce’s description of the sole designator in his final
> bullet is partially but not wholly correct.  The Empowered Community will
> be the sole designator; there is no entity or “Sole Designator” separate
> from the Empowered Community that will hold that function.
>
>
> We hope you find this responsive to your request.
>
>
>
> Kind regards, Holly and Rosemary
>
>
>
>
>
>
>
> *From:* Holly Gregory
> *Sent:* Wednesday, January 27, 2016 2:21 PM
> *To:* Kavouss Arasteh; Greg Shatan
> *Cc:* Jordan Carter; ICANN-Adler; Thomas Rickert;
> accountability-cross-community at icann.org; ACCT-Staff; Sidley ICANN CCWG;
> Rosemary E. Fei; ICANN-Adler; Sidley ICANN CCWG
> *Subject:* RE: [CCWG-ACCT] Nomenclature re "Empowered Community": ICANN
> Board comments - Recommendation 3 - Fundamental Bylaws
>
>
>
> Kavouss, we have prepared a response that Rosemary will send you shortly.
> My computer has crashed. Kind regards, Holly
>
>
>
> Sent with Good (www.good.com)
>
>
> ------------------------------
>
> *From:* Kavouss Arasteh
> *Sent:* Wednesday, January 27, 2016 04:14:43 PM
> *To:* Greg Shatan
> *Cc:* Jordan Carter; ICANN-Adler; Thomas Rickert;
> accountability-cross-community at icann.org; ACCT-Staff; Sidley ICANN CCWG
> *Subject:* Re: [CCWG-ACCT] Nomenclature re "Empowered Community": ICANN
> Board comments - Recommendation 3 - Fundamental Bylaws
>
> 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
> >>
> >> _______________________________________________
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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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> --
>
> 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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-- 
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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