[CCWG-ACCT] Nomenclature re "Empowered Community": ICANN Board comments - Recommendation 3 - Fundamental Bylaws
Nigel Roberts
nigel at channelisles.net
Thu Jan 28 00:26:48 UTC 2016
Like us all, it has feet of clay.
On 27/01/16 20:56, Greg Shatan wrote:
> 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
> <mailto: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 <mailto: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
> <mailto: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
> <mailto: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 <mailto: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 <mailto: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
> <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
> <mailto: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
> <mailto: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 <tel:%2B1%20212%20839%205853>
> holly.gregory at sidley.com
> <mailto:holly.gregory at sidley.com>____
>
> ____
>
> *From:*accountability-cross-community-bounces at icann.org
> <mailto:accountability-cross-community-bounces at icann.org>
> [mailto: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
> <mailto: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
> <mailto: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
> <mailto: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
> <mailto: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
> <mailto:seun.ojedeji at gmail.com>> wrote:____
>
> On 24 Jan 2016 16:15, "Greg Shatan"
> <gregshatanipc at gmail.com
> <mailto: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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> >>
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> >____
>
> ____
>
>
>
> --
> Jordan Carter
> Chief Executive, InternetNZ____
>
> +64-21-442-649 <tel:%2B64-21-442-649> |
> jordan at internetnz.net.nz
> <mailto:jordan at internetnz.net.nz>____
>
> Sent on the run, apologies for brevity____
>
> ____
>
> ____
>
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> --
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>
> Chief Executive
> *InternetNZ*
>
> +64-4-495-2118 <tel:%2B64-4-495-2118> (office) | +64-21-442-649
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