[CCWG-ACCT] Nomenclature re "Empowered Community": ICANN Board comments - Recommendation 3 - Fundamental Bylaws
Kavouss Arasteh
kavouss.arasteh at gmail.com
Thu Jan 28 08:58:19 UTC 2016
Dear Holly
Dear Rosemary
Thank you again very much for the analysis that you have done in regard
with the description or definination of " Sole Desugnator" taking into
account views expressed by Bruce, Grec and Jordan.
Now we need a formal / official definition or descrition of " Sole
Designator" and its exacrt Role Responsibility, and Ruthority, withourt
USING ETC WHICH IS NOT A LEGAL TERM
That terms shall be included in the Glossay and /or Bylaws .This is
fundamental issue and must be clearly mentioned as an explicit term
Regards
Kavouss
2016-01-28 1:26 GMT+01:00 Nigel Roberts <nigel at channelisles.net>:
> 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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>> ____
>>
>>
>>
>> --
>> 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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