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Dear Colleagues,<br>
<br>
Many thanks for this very valuable discussion. <br>
<br>
While it confirms that our initial orientation towards the ability
to, somehow, oversee the Board, is relevant and worth exploring, the
latest comments (regarding risk of capture) highlight that we should
also anticipate on the accountability of the overseeing mechanism
itself. <br>
<br>
If "the community" (through a mechanism yet to be determined)
oversees Board and staff, can we ensure all stakeholders, especially
those who are less familiar with Icann, that "the community", in
turn, is accountable (ie has the relevant independent checks and
balances, review and redress mechanisms) ? A significant challenge,
but I'm confident our group can address that. <br>
<br>
This aspect might, however, need to be addressed in our definition
of WS1, if there is agreement that is a necessary element for the
transition to take place. <br>
<br>
Best,<br>
Mathieu<br>
<br>
<br>
<br>
Le 07/01/2015 09:07, Dr Eberhard W Lisse a écrit :<br>
<blockquote cite="mid:AEB43B58-1FC8-43D7-B7EC-24293548B82E@lisse.na"
type="cite">
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<div>I am not interested much in the details, interesting as they
are :-)-O, but would like to pick up on Bruce's last paragraph,
because in my view, the "membership supervision" is not going to
help much as it is prone to capture, quite the opposite of the
accountability we want.</div>
<div><br>
</div>
<div>greetings, el</div>
<div><br>
Sent from Dr Lisse's iPad mini</div>
<div><br>
On Jan 7, 2015, at 02:40, Greg Shatan <<a
moz-do-not-send="true" href="mailto:gregshatanipc@gmail.com">gregshatanipc@gmail.com</a>>
wrote:<br>
<br>
</div>
<blockquote type="cite">
<div>
<div dir="ltr">What Bruce has set forth is close to correct.
However, I can't help but do a little legal nit-picking.
<div><br>
</div>
<div>"Public benefit corporation" is a term used in
California (among other places) as a term for non-profit
corporations generally. (In New York State, we use the
term "not-for-profit corporation" to mean basically the
same thing as a California "public benefit corporation"
(and we use the term "public benefit corporation" to mean
something quite different -- a quasi-public corporation
like the Metropolitan Transport Authority).) California
public benefit corporations are not really "chartered by
the state" (though New York ones like the MTA are
chartered by the state). [Wikipedia isn't always a great
source....]</div>
<div><br>
</div>
<div>In California, public benefit corporations may be
created with or without members, or may convert from
member to non-member and vice versa. However, a public
benefit corporation with members is still a public benefit
corporation. </div>
<div>(California also has "mutual benefit corporations"
which are non-profit but never charitable (and are also
not tax-exempt). Mutual benefit corporations are run for
the benefit of their members, and not for the benefit of
the general public.)<br>
</div>
<div><br>
</div>
<div>The term "member" can also be used to mean people (or
organizations) who aren't really members. For instance,
when you become a "member" of a museum, you are not
becoming a member of the corporation (i.e., what some in
ICANN-land have termed a "statutory member"). These
non-statutory "memberships" are more for marketing
purposes and have no governance role. "Statutory members"
on the other hand, have a role in governance (which can
vary markedly depending on the by-laws of the particular
corporation.</div>
<div><br>
</div>
<div>Hope this helps.</div>
<div><br>
</div>
<div><br>
</div>
<div>Best regards,</div>
<div><br>
</div>
<div>Greg Shatan</div>
<div>(Speaking for myself, and not giving legal advice as I
am not a member of the California Bar)</div>
</div>
<div class="gmail_extra"><br>
<div class="gmail_quote">On Tue, Jan 6, 2015 at 6:54 PM,
Bruce Tonkin <span dir="ltr"><<a
moz-do-not-send="true"
href="mailto:Bruce.Tonkin@melbourneit.com.au"
target="_blank">Bruce.Tonkin@melbourneit.com.au</a>></span>
wrote:<br>
<blockquote class="gmail_quote" style="margin:0 0 0
.8ex;border-left:1px #ccc solid;padding-left:1ex">Hello
Phil,<br>
<br>
<br>
>> I would envisage the Board having to be
compliance with all Corporate Governance Codes specific
to Companies Law in the country of incorporation,
subject to a community consensus override. But what is
its corporate status - not for profit or for profit - as
different codes would apply ?<br>
<br>
The legal status of ICANN is as specified in its
articles of incorporation:<br>
<br>
<a moz-do-not-send="true"
href="https://www.icann.org/resources/pages/articles-2012-02-25-en"
target="_blank">https://www.icann.org/resources/pages/articles-2012-02-25-en</a><br>
<br>
"This Corporation is a non-profit public benefit
corporation and is not organized for the private gain of
any person. It is organized under the California
Non-profit Public Benefit Corporation Law for charitable
and public purposes. The Corporation is organized, and
will be operated, exclusively for charitable,
educational, and scientific purposes within the meaning
of § 501 (c)(3) of the Internal Revenue Code of 1986, as
amended (the "Code"), or the corresponding provision of
any future United States tax code. Any reference in
these Articles to the Code shall include the
corresponding provisions of any further United States
tax code."<br>
<br>
Also from:<br>
<br>
<a moz-do-not-send="true"
href="http://en.wikipedia.org/wiki/Public-benefit_nonprofit_corporation"
target="_blank">http://en.wikipedia.org/wiki/Public-benefit_nonprofit_corporation</a><br>
<br>
"A public-benefit non-profit corporation is a type of
non-profit corporation chartered by a state government,
and organized primarily or exclusively for social,
educational, recreational or charitable purposes by
like-minded citizens. Public-benefit nonprofit
corporations are distinct in the law from mutual-benefit
nonprofit corporations in that they are organized for
the general public benefit, rather than for the interest
of its members."<br>
<br>
I believe it was deliberately set up as public benefit
rather than a member organization - to avoid the
situation where the members become limited to say gTLD
registries and registrars and hence it ends up operating
primarily for the benefit of the domain name
registration industry.<br>
<br>
Any move away from a public-benefit corporation to a
membership corporation - would need to carefully
consider how to ensure that the members are reflective
of the broader Internet community and don't become
limited to a few members as interest in "ICANN" drops
over time. I.e. a failure scenario of membership
organisation is what happens to the membership base over
time and how it can be protected from capture. I have
seen some membership based ccTLDs get into problems when
their membership becomes dominated by domain name
investors for example.<br>
<br>
Regards,<br>
Bruce Tonkin<br>
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<pre class="moz-signature" cols="72">--
*****************************
Mathieu WEILL
AFNIC - directeur général
Tél: +33 1 39 30 83 06
<a class="moz-txt-link-abbreviated" href="mailto:mathieu.weill@afnic.fr">mathieu.weill@afnic.fr</a>
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